Metropolitan News-Enterprise


Wednesday, July 11, 2001


Page 3


Ninth Circuit Cites Racism, Bars Enforcement of Tribal Court’s Award


By a MetNews Staff Writer


A tribal award in favor of a Native American-owned construction firm cannot be enforced by the federal courts because racist remarks by the company’s lawyers inflamed the tribal jury and denied the non-Indian defendant due process, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The ruling overturned a decree by the late U.S. District Judge Paul G. Hatfield of Montana, who granted Glacier Construction, Inc. a $2 million judgment against Glacier Electric Cooperative, Inc.  Glacier Construction claimed the co-op had wrongfully terminated its contracts with the firm since the Indian owners had purchased it, and had done so because of race.

Glacier Electric Cooperative is based in Cut Bank, Mont., and provides power to residents of Glacier County and surrounding areas. Glacier Construction had been sold to three men, two of them Indians, 15 months before the co-op terminated all of its contracts with the company.

Glacier Electric Cooperative said it terminated the agreements because the work was poor, because the company was using unqualified workers, and for financial reasons.

 But lawyers for Glacier Construction told the Blackfeet tribal jury that the case was about the contrast between “white man’s magic” and “lowly” Indians. The plaintiff’s attorney also made reference to “the cavalry riding into town to kill an Indian business.”

The tribal jury found in favor of Glacier Construction on all claims and awarded the company more than $1.3 million in compensatory damages and $775,000 in punitive damages.

But Judge Ronald L. Gould, writing for the Ninth Circuit, said the plaintiff’s appeals to racist sentiments render the verdict unenforceable under principles of comity.

“Argumentative appeals to historical racial prejudices of or against the white race have no proper place in a civil trial, especially one in which the tribal court is exercising jurisdiction over a non-member before an exclusively tribal jury,” Gould said. “It is fundamental to our system of justice that persons are to be held responsible for their own conduct and not for the conduct of their ancestors.”

The judge also criticized a reference by the construction company’s attorneys to the killing of Lt. Col. George Custer and his troops in a battle with Dakota Indians in 1876.

“The conduct of Custer had no relevance to this case, and the reference to ‘the Custer massacre’ in closing argument therefore could only have been urged in an attempt to incite prejudice and inflame the jury,” the judge said.

Judge Diarmuid F. O’Scannlain and Senior Judge Thomas M. Reavley of the Fifth Circuit, sitting by designation, concurred.

The case is Bird v. Glacier Electric Cooperative, 99-35162.


Copyright 2001, Metropolitan News Company