United States District Court, D. Montana, Billings Division
P. WATTERS UNITED STATES DISTRICT JUDGE.
Horn County Electric Cooperative, Inc., (Big Horn) seeks an
order from this Court declaring the Crow tribal court has no
jurisdiction to hear the claim brought by Alden Big Man
against Big Horn. (Doc. 1). Before the Court are United
States Magistrate Judge Timothy Cavan's findings and
recommendation filed August 15, 2018. (Doc. 48). Judge Cavan
recommends this Court grant the Defendants' motions to
dismiss. (Doc. 48 at 20).
Standard of review
Horn filed timely objections to the findings and
recommendation. (Doc. 50). Big Horn is entitled to de novo
review of those portions of Judge Cavan's findings and
recommendation to which it properly objects. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b)(3).
Horn raises two objections. First, Big Horn objects to Judge
Cavan's conclusion that Big Horn has not exhausted its
tribal remedies. Second, Big Horn objects to Judge
Cavan's conclusion that tribal subject matter
jurisdiction is not plainly lacking.
Court does not reach Big Horn's second objection because
it holds Big Horn has exhausted its tribal remedies and is
therefore entitled to challenge tribal jurisdiction in
federal court. The issue squarely presented to the Court is
whether a non-Indian has exhausted its tribal remedies when a
tribal appellate court expressly states the tribal court has
jurisdiction over the case but the merits remain to be
may bring a federal common law cause of action to challenge
tribal court jurisdiction. Elliot v. White Mountain
Apache Tribal Court, 566 F.3d 842, 846 (9th Cir. 2009)
(citation omitted). But a non-Indian must first exhaust
tribal court remedies. Elliot, 566 F.3d at 846
(citing Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9,
19 (1987)). Exhaustion is required as a matter of comity.
Booze v. Wilder, 381 F.3d 931, 935 (9th Cir. 2004)
(citing Strate v. A-l Contractors, 520 U.S. 438, 451
(1997)). The rule is grounded in federal policies supporting
tribal sovereignty, including (1) furthering congressional
policy of supporting tribal self-government; (2) promoting
the orderly administration of justice by allowing a full
record to be developed in the tribal court; and (3) obtaining
the benefit of tribal expertise if further review becomes
necessary. Nat'l Farmers Union Ins. Cos. v. Crow
Tribe of Indians, 471 U.S. 845, 856-857 (1985).
a minimum, exhaustion of tribal remedies means that tribal
appellate courts must have the opportunity to review the
determinations of the lower tribal courts."
LaPlante, 480 U.S. at 16-17. The Ninth Circuit
construes the exhaustion requirement to be satisfied once the
tribal appellate court takes the opportunity to review, or
declines to review, the jurisdiction issue, even if the
merits of the case have not been determined.
Elliott, 566 F.3d at 847 n. 4. The Tenth Circuit
construes the exhaustion requirement to be satisfied once the
tribal appellate court expressly rules on the jurisdiction
issue, even if the merits of the case have not been
determined. Crowe & Dunlevy, P.C. v. Stidham,
640 F.3d 1140, 1150 (10th Cir. 2011).
Elliott, the plaintiff argued it exhausted its
tribal remedies when the tribal court held it had
jurisdiction and the tribal appellate court had no discretion
to accept an interlocutory appeal of the jurisdiction issue.
566 F.3d at 846. The Ninth Circuit held the plaintiff had not
exhausted its tribal remedies because the tribal appellate
court had not yet had an opportunity to review the
jurisdiction issue. In so holding, the Ninth Circuit
contrasted the case with Ford Motor Co. v.
Todecheene, where it held exhaustion occurs when a
tribal appellate court has discretion to accept an
interlocutory appeal of the jurisdiction issue and declines
to do so. Elliott, 566 F.3d at 847 n. 4 ("This
court recently held that, if the tribal appellate court has a
discretionary interlocutory appeals process, that is
sufficient for purposes of exhaustion.") (citing
Ford Motor Co. v. Todecheene, 488 F.3d 1215, 1217
(9th Cir. 2007)).
Crowe, the plaintiff argued it exhausted its tribal
remedies when the tribal appellate court reviewed a portion
of the case but did not expressly review whether the tribal
court had jurisdiction. The Tenth Circuit held the plaintiff
had not exhausted its tribal remedies because it was unclear
whether the tribal appellate court considered the
jurisdiction question. The Tenth Circuit contrasted the case
with Enlow v. Moore, where it held the plaintiff did
exhaust its tribal remedies because the tribal appellate
court had explicitly stated the tribal court had jurisdiction
over the case even though the merits remained undecided.
Crowe, 640 F.3d at 1150 (citing Enlow v.
Moore, 134 F.3d 993, 995-996 (10th Cir. 1998))
("[W]e conclude that the highest tribal court had the
'opportunity to review the determinations of the lower
tribal court,' thus exhausting [the plaintiffs] tribal
the tribal court dismissed Alden Big Man's complaint for
lack of subject matter jurisdiction. Big Man appealed. The
tribal appellate court reversed the tribal court, stating
"[t]his Court rules that the Crow trial court has
subject matter jurisdiction over this matter consistent with
this opinion ... [t]his case is REMANDED to the Crow trial
court to rule on the non-jurisdictional merits of [Big
Man's] motion for summary judgment." (Doc. 1-5 at
16). Under Elliott and Ford Motor Co., Big
Horn therefore satisfied its exhaustion requirement because
the tribal appellate court took the opportunity to rule on
the jurisdictional question and expressly held the tribal
court had jurisdiction. See also Yellowstone County v.
Pease, 96 F.3d 1169, 1172 (9th Cir. 1996) ("[T]he
tribal court clearly had a 'full opportunity' to
consider the jurisdictional issue because the Crow Court of
Appeals actually and finally decided that tribal jurisdiction
Court does not come to this conclusion lightly. It appears
the factual record in the tribal court is underwhelming. The
tribal appellate court itself repeatedly admonished the
tribal court that the record was not properly developed.
(Doc. 48 at 15-19). As Judge Cavan noted, one of the main
reasons federal courts require exhaustion is to allow a full
record to be developed in the tribal court. Nat'l
Farmers Union, 471 U.S. at 856-857. Under similar
circumstances, this Court has sent a case back to tribal
court to further develop the record. Glacier Electric
Co-op., Inc. v. Williams,96 F.Supp.2d 1089, 1092-1093
(D. Mont. 1999, Great Falls Division). But that avenue has
since been foreclosed by Elliott and Ford Motor
Co. If the exhaustion requirement is satisfied when a
tribal appellate court declines to accept an interlocutory
appeal of the jurisdiction issue, it is certainly satisfied
when a tribal appellate court expressly determines the
jurisdiction issue. Furthermore, it's unclear whether
district courts ever possessed the discretion exercised ...