This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




James R. Allen, et al.,



Felix M. Phillips, et al.,


Filed October 7, 1997

Reversed and remanded.

Parker, Judge

Dissenting, Short, Judge

Hennepin County District Court

File No. 954651

Paul A. Sortland, Sortland Law Office, 701 Fourth Avenue South, Suite 1700, Minneapolis, MN 55415-1654 (for appellants)

Timothy D. Kelly, Jennifer L. Frisch, Kelly & Berens, P.A., 3720 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondents)

Considered and decided by Crippen, Presiding Judge, Parker, Judge, and Short, Judge.



This appeal is from a district court's order dismissing without prejudice a legal malpractice claim for lack of subject matter jurisdiction. In his complaint, appellant James Allen, sole owner of appellant Jimmy Allen Artist Management, Ltd., claimed that respondent Felix Phillips committed malpractice by negligently failing to advise Allen regarding the risks of doing business with an Indian tribe without obtaining a waiver of sovereign immunity. Phillips moved to dismiss Allen's malpractice action, claiming that the district court lacked jurisdiction to decide if sovereign immunity would bar Allen from enforcing his contract against the tribe. The district court ordered Allen's claim dismissed without prejudice, ruling that the tribal court should first decide the sovereign immunity issue. We reverse and remand for further proceedings in district court.


A district court's subject matter jurisdiction presents a question of law that we review de novo. Federal-Hoffman, Inc. v. Fackler, 549 N.W.2d 93, 96 (Minn. App. 1996), review denied (Minn. Aug. 20, 1996) (subject matter jurisdiction is a question of law).

[S]tate courts cannot exercise subject matter jurisdiction over Indians or activities on Indian lands unless a federal statute provides for such jurisdiction, or the exercise of jurisdiction will not infringe upon Indians' right to self-governance.

Cohen v. Little Six, Inc., 543 N.W.2d 376, 381 (Minn. App. 1996) (citing Williams v. Lee, 358 U.S. 217, 219-20 n.4, 79 S.Ct. 269, 270 n.9 (1959)), aff'd, 561 N.W.2d 889 (Minn. 1997). As a threshhold matter, the district court has jurisdiction of issues that do not infringe upon Indians' right to self-governance and of non-Indian activities.

If this suit were one to enforce Allen's contract against the tribe, the district court's ruling might be affirmed. Cf. id. (state courts lack jurisdiction to decide personal injury claim against tribe where events underlying claim transpired within reservation). However, Allen chose not to seek enforcement of the contract or damages for breach of contract against the tribe and instead seeks damages from his attorney based on legal malpractice. The allegedly negligent legal advice in this case did not involve Indians or Indian activities, did not take place on Indian land, and jurisdiction over the legal malpractice action would not infringe upon Indians' right to self-governance. Accordingly, the district court has subject matter jurisdiction over this legal malpractice action, and the dismissal was error. Gavle v. Little Six, Inc., 555 N.W.2d 284, 292-94 (Minn. 1996) (holding state court has jurisdiction to establish Minnesota law on the issue of sovereign immunity for tribal business entities when jurisdiction does not "undermine the authority of the tribal courts" nor "infringe on the ability of Indian tribes to govern themselves") (quoting Williams, 358 U.S. at 223, 79 S.Ct. at 272).

As part of his legal malpractice claim, Allen must establish that Phillips' negligence caused his damages. See First Bank of Minnesota v. Olson, 557 N.W.2d 621, 623 (Minn. App. 1997) (but-for causation required where attorney conduct destroys or damages cause of action which would otherwise have succeeded; where attorney negligence damages client other than by destruction or damage to cause of action, courts fashion a test of proximate causation suited to facts), review denied (Minn. Mar. 18, 1997). Allen claims that Phillips was negligent by failing to advise him of the risks of doing business with an Indian tribe without obtaining a waiver of sovereign immunity. This claim presumes that the risk of doing business with the tribe without a waiver is that Allen will be damaged because of the tribe's sovereign immunity. If there is no sovereign immunity, there is no risk caused by doing business without a waiver of that sovereign immunity. As a prerequisite to proving proximate cause, Allen must establish that the tribe's sovereign immunity would bar enforcement of the contract or recovery of damages.[1] However, Allen need not file a breach of contract claim in tribal court before pursuing his malpractice claim. Cf. Cook v. Connelly, 366 N.W.2d 287, 291 (Minn. 1985) (holding malpractice is independent action not subsumed in underlying claim and therefore action to set aside settlement is not prerequisite to malpractice claim).

Deciding the tribe's sovereign immunity in this context is no different from a district court deciding any other preliminary issue encompassed in a legal malpractice claim. For example, if all other facts remain the same, but instead of contracting with a Wisconsin Indian tribe, Allen had contracted with the State of Wisconsin, the district court would have jurisdiction to determine the preliminary issue of whether the state of Wisconsin could bar contract enforcement or a claim of damages based on sovereign immunity. Likewise here, where the subject matter of this action does not involve Indians or Indian activities or infringe upon Indians' right to self-governance, the district court has jurisdiction to decide the preliminary issue of the tribe's sovereign immunity. Accord Strate v. A-1 Contractors, ___ U.S. ___, 117 S.Ct. 1404, 1416 (1997) (state court had jurisdiction over tort action involving non-Indians even though events occurred on tribal land where tribal court's jurisdiction was not necessary to protect tribal self-government); Cf. Granite Valley Hotel Ltd. Partnership v. Jackpot Junction Bingo & Casino, 559 N.W.2d 135, 137 (Minn. App. 1997) (state district court had jurisdiction to determine whether tribe waived sovereign immunity by contract), review denied (Minn. Apr. 15, 1997).

Reversed and remanded.

SHORT, Judge (dissenting).

I respectfully dissent. The question underlying Allen's legal malpractice claim is the extent of a tribe's immunity from a breach of contract action. Allen must prove that Phillips's actions were negligent and resulted in actual harm. See Blue Water Corp. Inc. v. O'Toole, 336 N.W.2d 279, 282 (Minn. 1983) (holding attorney liable for malpractice only when plaintiff proves both attorney negligence and, absent that negligence, plaintiff would not have been harmed). The trial court's decision to defer to the tribal court on the question of immunity is consistent with notions of tribal sovereignty. See Iowa Mut. Ins. Co. v. LaPlant, 480 U.S. 9, 18 (1987) (concluding "tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty"); Weeks Constr., Inc. v. Oglala Sioux Hous. Auth., 797 F.2d 668, 673-74 (8th Cir. 1986) (holding a contract dispute that arose on the reservation and raised questions of tribal law interpretation to be within the province of the tribal court); Cohen v. Little Six, Inc., 543 N.W.2d 376, 381 (Minn. App. 1996) (noting in absence of federal law authorizing state court jurisdiction, states may exercise jurisdiction over matters involving Indians only if such jurisdiction does not infringe on their right to self-governance), aff'd, 561 N.W.2d 889 (Minn. 1997). Because the tribal court is uniquely situated to resolve the immunity issue and its decision would establish whether harm to Allen occurred, I would affirm the trial court's decision.

[ ]1Respondent Phillips previously moved for summary judgment, arguing that Allen's claim failed as a matter of law because he had not first litigated his breach of contract claim against the tribe and therefore could not establish that Phillips' conduct was the proximate cause of his damages. The district court ruled that Allen's evidence created a genuine issue of material fact as to cause and denied Phillips' motion for summary judgment. Phillips did not file a notice of review, and the district court's denial of his motion for summary judgment is not appealed. Cf. Minn. R. Civ. App. P. 106 (respondent may obtain review by filing notice of review specifiying order to be reviewed). Accordingly, our review is limited to the district court's order dismissing this legal malpractice action based on lack of subject matter jurisdiction.