                            STATE OF MICHIGAN

                            COURT OF APPEALS



STATE TREASURER,                                                     UNPUBLISHED
                                                                     January 12, 2016
               Plaintiff-Appellee,

v                                                                    No. 323854
                                                                     Gratiot Circuit Court
DAVID M. DUTY,                                                       LC No. 14-011882-CZ

               Defendant-Appellant,
and

ANDREA MCDOWELL,

               Defendant.


Before: RONAYNE KRAUSE, P.J., and GADOLA and O’BRIEN, JJ.

PER CURIAM.

       This appeal involves defendant-appellant’s (hereinafter “defendant”) challenge to the trial
court’s order requiring him to reimburse the state for some of the costs associated with his
incarceration pursuant to the State Correctional Facility Reimbursement Act (SCFRA),
MCL 800.401 et seq. We affirm.

                                            I. FACTS

       Defendant is a state prisoner who is also a member of the Grand Traverse Band of Ottawa
and Chippewa Indians (the tribe). In 2001, defendant was sentenced by the Grand Traverse
Circuit Court, following his conviction for third-degree criminal sexual conduct. In 2004,
defendant was sentenced by the Gratiot Circuit Court, following his conviction for being a
prisoner in possession of a weapon. Defendant is entitled to receive biannual per capita
payments from the tribe, derived from revenue the tribe generates from gaming activity on its
lands. In 2007, plaintiff filed suit in the Gratiot Circuit Court against defendant and Stacy Lewis,
who was apparently holding some of defendant’s payments, seeking reimbursement for
defendant’s incarceration expenses under the SCFRA. In 2008, the court issued a final order in
favor of plaintiff, but plaintiff never received any payments.

       In 2014, plaintiff filed a second suit in the Gratiot Circuit Court, this time against
defendant and Andrea McDowell, defendant’s mother, asserting that McDowell was receiving

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the per capita payments on behalf of defendant. The trial court entered an order to show cause
why defendant’s assets should not be used to reimburse the state pursuant to the SCFRA. The
trial court also required that defendant and McDowell provide an accounting of defendant’s
assets, and that McDowell place a hold over any funds she received on defendant’s behalf.
Defendant’s prison account was frozen.

        Defendant, in propria persona, filed a written response to the order to show cause. He
objected to the state’s claim and argued that the court did not have jurisdiction to adjudicate a
claim involving the allotment of money from Indians or Indian tribes. Defendant further argued
that Michigan lacked jurisdiction over Indian property and Indians because it was not one of six
states to which the federal government granted such jurisdictional power in 28 USC 1360(a).
Defendant also asserted that the payments from the tribe would not equal or exceed 10% of the
estimated cost of his incarceration as required by MCL 800.403(2).

         After a hearing, the trial court issued an opinion and order resolving the case in favor of
plaintiff. The court found that the tribal distribution was subject to the SCFRA and that federal
restrictions on attachment, seizure, and levy did not apply to distributions to an inmate in a state
prison. The trial court also found that it had jurisdiction over the claim under MCL 800.404
because the Gratiot Circuit Court had previously sentenced defendant, and he was still under the
jurisdiction of the Department of Corrections. The court further reasoned that in State Treasurer
v Cuellar, 190 Mich App 464, 467; 476 NW2d 644 (1991), this Court expressly recognized that
the SCFRA does not bar the state from seeking reimbursement even if the recovery would be less
than 10% of the cost of the inmate’s care. Finally, the court concluded that the previous order in
the first case did not estop plaintiff from bringing the current case.

                                       II. JURISDICTION

        On appeal, defendant challenges the trial court’s jurisdiction over this matter on two
grounds. First, defendant contends that the State of Michigan lacks jurisdiction over him and the
per capita payments because he is the member of an Indian tribe and the tribe disburses the
payments. Second, defendant contends that the Gratiot Circuit Court lacks jurisdiction pursuant
to MCL 800.404(1) because it is not the circuit court that sentenced defendant to the sentence he
is actively serving. “The appellate standard of review when examining jurisdictional rulings is
de novo.” Jeffrey v Rapid American Corp, 448 Mich 178, 184; 529 NW2d 644 (1995).

                             A. PER CAPITA DISBURSEMENTS

        “Generally speaking, primary jurisdiction over land that is Indian country rests with the
Federal Government and the Indian tribe inhabiting it, and not with the States.” Alaska v Native
Village of Venetie Tribal Gov’t, 522 US 520, 527 n 1; 118 S Ct 948; 140 L Ed 2d 30 (1998).
However, “[a]bsent express federal law to the contrary, Indians going beyond reservation
boundaries have generally been held subject to non-discriminatory state law otherwise applicable
to all citizens of the State.” Mescalero Apache Tribe v Jones, 411 US 145, 148-149; 93 S Ct
1267; 36 L Ed 2d 114 (1973).



                                                -2-
        In this case, it is undisputed that defendant is not living on an Indian reservation. Also,
the cause of action in this case, i.e., partial reimbursement for the cost of defendant’s
incarceration expenses, involves circumstances beyond an Indian reservation and is based on a
non-discriminatory state law otherwise applicable to all Michigan citizens. Defendant has not
cited any federal law exempting him personally from jurisdiction in Michigan. Defendant also
does not personally enjoy sovereign immunity from suit because tribal sovereign immunity does
not extend to the individual members of a tribe. Mich United Conservations Clubs v Anthony, 90
Mich App 99, 109; 280 NW2d 883 (1979), citing Puyallup Tribe, Inc v Dep’t of Game of
Washington, 433 US 165; 97 S Ct 2616; 53 L Ed 2d 667 (1977). Therefore, defendant’s
argument that he is personally immune from the jurisdiction of Michigan courts is unavailing.

         Defendant’s argument that the disbursements paid to him by the tribe cannot be reached
is also not persuasive. Defendant argues that the Indian Gaming Regulatory Act (IGRA), 25
USC 2710(b)(2), only allows a tribe to disburse per capita payments for purposes authorized by
the IGRA, and using the payment to reimburse the state for incarceration costs is not one of the
approved purposes. This argument fails to recognize the distinction between the tribe and
defendant as an individual. The state is seeking reimbursement from defendant, not from the
tribe. The fact that the tribe makes payments to defendant for his general welfare is immaterial
to this issue and irrelevant to Michigan’s jurisdiction in this case.

        Defendant makes an analogous argument that the tribe’s law and the tribe’s compact with
the state only allow the tribe to expend gaming income for authorized purposes under the IGRA.
Defendant points out that the tribe’s law states that revenue from tribal gaming operations “shall
be held in the name of the Tribe” and may only be expended by the tribal council by resolution
for purposes specified by the IGRA. See 18 Grand Traverse Band Code § 1002(a)(2).
Defendant further asserts that the tribe did not explicitly or implicitly allow Michigan to take
jurisdiction over any action that could result in alienation of the per capita payments made to
tribe members. These arguments again fail to acknowledge the important distinction between the
tribe and defendant as an individual. As plaintiff argues, once the tribe disburses money to
defendant, it is no longer tribal property and is not protected by the tribe’s sovereign immunity.
Defendant has not pointed to any express federal law that exempts tribal disbursements from the
jurisdiction of the state.1



1
    Defendant also points out that the tribe’s law states the following:
          [N]othing in this code nor any action of the Tribal Commission shall be deemed
          or construed to be a waiver of sovereign immunity from suit of the Tribe, or to be
          a consent of the Tribe to the jurisdiction of the United States or of any state or of
          any other tribe with regard to the business or affairs of the Tribal Commission or
          the Tribe, or to be a consent of the Tribe to any cause of action, case or
          controversy, or to the levy of any judgment, lien or attachment upon any property
          of the Tribe; or to be a consent to suit in respect to any Indian land, or to be a
          consent to the alienation, attachment or encumbrance of any such land. [18 Grand
          Traverse Band Code § 407(b).]


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        Defendant argues that absent compliance with 25 USC 1322, state courts cannot exercise
jurisdiction over reservation Indians. However, 25 USC 1322 only applies if a state takes
jurisdiction with the tribe’s consent over actions that arise in Indian country.2 The parties do not
dispute that defendant is not living on an Indian reservation, and the events relating to the suit
did not arise on an Indian reservation.

        Defendant’s reliance on 28 USC 1360 is similarly misplaced. This statute grants the
following states jurisdiction over actions arising in Indian country within the state boundaries:
Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin. 28 USC 1360(a). Defendant
argues that Michigan cannot exercise jurisdiction in this case because it is not one of the listed
states; however, this argument is unavailing because Michigan is not attempting to assert
jurisdiction over an action arising in Indian country.

        In sum, the State of Michigan has jurisdiction over defendant and the disbursements
made to him because the cause of action in this case arose outside of an Indian reservation and
federal law does not protect the tribal per capita payments once distributed to defendant.

                           B. JURISDICTION UNDER MCL 800.404(1)

        Defendant next argues that the Gratiot Circuit Court lacked jurisdiction over the
proceedings under the SCFRA under MCL 800.404(1). The SCFRA provides in relevant part,
“[T]he circuit court shall have exclusive jurisdiction over all proceedings under this act. The
attorney general may file a complaint in the circuit court for the county from which a prisoner
was sentenced . . . .” MCL 800.404(1) (emphasis added). Defendant contends that the
Legislature’s use of the definite article “the” in MCL 800.404(1) means that the Legislature
intended only the particular circuit court that imposed a prisoner’s “controlling sentence” to have
jurisdiction. Defendant does not define what he means by “controlling sentence,” but his
argument implies that “controlling sentence” means “active sentence.”


Defendant asserts that the tribe’s constitution allows the Tribal Council to “prevent the sale,
disposition, lease or encumbrance of Grand Traverse Band land, interests in land, or other assets
of the Grand Traverse Band.” Constitution of the Grand Traverse Band, art IV, § 1(e). As with
his other arguments, defendant’s reliance on § 407(b) and the tribe’s constitution fails to
distinguish between the tribe’s property and defendant’s property. Once the tribe disburses funds
to defendant, those funds are no longer protected by the tribe’s sovereign immunity.
2
    18 USC 1151 defines “Indian country” as:
         (a) all land within the limits of any Indian reservation under the jurisdiction of the
         United States Government, notwithstanding the issuance of any patent, and,
         including rights-of-way running through the reservation, (b) all dependent Indian
         communities within the borders of the United States whether within the original
         or subsequently acquired territory thereof, and whether within or without the
         limits of a state, and (c) all Indian allotments, the Indian titles to which have not
         been extinguished, including rights-of-way running through the same.



                                                  -4-
        We need not wade into the question of statutory construction regarding MCL 800.404(1)
because, contrary to defendant’s contention, his sentence from the Gratiot Circuit Court is
currently active. Defendant has two active sentences. The first was issued in 2001 by the Grand
Traverse Circuit Court for 3 to 15 years. The Gratiot Circuit Court imposed the second sentence
in 2004 for two to five years. The effect of the second conviction is that defendant’s time in
prison was extended from 3 to 15 years to 5 to 20 years. Thus, the sentence from the Gratiot
Circuit Court is still active, meaning that the court had jurisdiction. Accordingly, the Gratiot
Circuit Court had jurisdiction over defendant pursuant to MCL 800.404(1) because it sentenced
defendant and he was still actively serving that sentence at the time plaintiff filed suit.

                    III. RES JUDICATA AND COLLATERAL ESTOPPEL

        Finally, defendant asserts that plaintiff’s present action is barred by the doctrines of res
judicata and collateral estoppel because plaintiff obtained a final order in the 2007 lawsuit. The
application of legal doctrines, such as collateral estoppel and res judicata, is a question of law
that we review de novo. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008).

        Res judicata bars a subsequent action if “(1) the first action was decided on the merits, (2)
the matter contested in the second action was or could have been resolved in the first, and (3)
both actions involve the same parties or their privies.” Estes, 481 Mich at 585 (quotation marks
and citation omitted). Res judicata also bars all claims “arising from the same transaction that
the parties, exercising reasonable diligence, could have raised but did not.” Dart v Dart, 460
Mich 573, 586; 597 NW2d 82 (1999). The doctrine of collateral estoppel will only apply if “(1)
a question of fact essential to the judgment was actually litigated and determined by a valid and
final judgment, (2) the same parties had a full and fair opportunity to litigate the issue, and (3)
there was mutuality of estoppel.” Estes, 481 Mich at 585. “[M]utuality of estoppel requires that
in order for a party to estop an adversary from relitigating an issue that party must have been a
party, or in privy to a party, in the previous action.” Monat v State Farm Ins Co, 469 Mich 679,
684; 677 NW2d 843 (2004) (quotation marks and citation omitted). The “same parties” means
the same adversarial parties. Eyde v Meridian Charter Twp, 118 Mich App 43, 52; 324 NW2d
775 (1982).

       Defendant mistakenly argues that res judicata and collateral estoppel bar plaintiff’s claim
because Lewis and McDowell are not adversarial parties in relation to himself. However, the
proper analysis focuses on the relationship between plaintiff and Lewis and McDowell, as the
adversarial parties in the two suits. In the present case, McDowell is a new adversarial party, and
Lewis is not a party. Accordingly, neither res judicata nor collateral estoppel applies because the
same parties were not involved in the first and second suit.

       Affirmed.



                                                              /s/ Amy Ronayne Krause
                                                              /s/ Michael F. Gadola
                                                              /s/ Colleen A. O'Brien


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