Tribe defies subpoena in $5 million lawsuit

A federal court judge in Great Falls is weighing opposing legal arguments on whether tribal officials must comply with subpoenas demanding access to tribal government documents, or whether Indian tribes are immune from court orders to produce evidence because they are sovereign nations.

This dispute came to a head based upon a lawsuit filed by Terryl Matt, a Cut Bank attorney and enrolled member of the Assiniboine Tribe of Montana. Matt is suing the Bureau of Indian Affairs for more that $5 million in compensation for alleged damages that occurred when the BIA built a new road across Matt’s property. The road building project took place following widespread flooding on the Fort Belknap Indian Reservation in June 2011.

Matt claims the construction occurred without her knowledge or permission and diverted water from a nearby stream, flooding her property.

Neither the Fort Belknap tribes nor committee president Mark Azure are named as defendants in Matt’s lawsuit. However, on July 17, the U.S. District Court for Montana issued a subpoena demanding Azure turn over all tribal documents related to the road construction project. Azure refused to comply with the federal subpoena, citing the doctrine of “tribal sovereign immunity” as barring him from producing any tribal documents.

“Under the doctrine of tribal sovereign immunity, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity,” states a trial brief filed by the Fort Belknap Indian Community. “This court does not have the authority to compel non-party employees/officials of the council to testify or produce records.”

Matt filed a motion Aug. 20 asking the court to find Azure in contempt, and to force him and the Fort Belknap Tribal Committee to produce the requested documents. In response, tribal attorneys filed a motion to quash the subpoena, arguing the federal court does not have authority over the Fort Belknap tribes in this case.

On Tuesday, U.S. District Judge Brian Morris heard arguments from both sides in the dispute. An official from the federal clerk of court’s office said Morris will likely rule on the motions next week.