Opinion
A3-01-91.
January 8, 2002
MEMORANDUM AND ORDER
Before the Court are plaintiff's motion for summary judgment (doc. # 4) and defendant Morin's motion to dismiss (doc. # 7). Each side opposes the other's motion. As set forth below, both motions are DENIED. However, for the reasons explained below, the case is STAYED pending exhaustion of tribal remedies.
I. Background
The operative facts are not in dispute. Plaintiff Progressive Northwestern Insurance Company issued a motor vehicle insurance policy to Louise M. Nielsen. Louise M. Nielsen, who is not a party to this action, is an enrolled member of the Turtle Mountain Band of Chippewa Indians who resides at Dunseith, North Dakota, a few miles from the Turtle Mountain Reservation.
Defendant Cheryl Bailey Nielsen is Louise M. Nielsen's daughter. Cheryl Bailey Nielsen is also an enrolled member of the Turtle Mountain Band of Chippewa Indians; she resides with her mother in Dunseith. On or about January 8, 2001, Cheryl Nielsen was operating a truck owned by her mother and insured by Progressive on the Turtle Mountain Reservation. While doing so, she was involved in an accident with defendant Billie Jo Morin, who is an enrolled member of the Turtle Mountain Band of Chippewa Indians and resides on the Turtle Mountain Reservation.
The record does not make perfectly clear precisely where the accident occurred or what the precise technical state of that land is.
This accident has generated two lawsuits. In the first, Morin has sued both Cheryl and Louise Nielsen in Turtle Mountain Tribal Court for injuries resulting from the January 8 accident. In the second — which is now before the Court — Progressive seeks a declaratory judgment that it cannot be liable to Morin on the policy because Cheryl Nielsen had neither express nor implied permission to operate her mother's truck, thereby removing her from coverage on the policy. Progressive has moved for summary judgment on this claim. Morin has opposed this motion and has countered with her own motion to dismiss, arguing that the issue should be resolved in tribal court. In the Court's view, this is an appropriate case for tribal exhaustion, and it therefore DENIES both motions and orders the case STAYED.
The Court pauses briefly to address plaintiff's argumetn that defendant Morin lacks standing to contest the summary judgment motion. Obviously, since the Court's denial of the summary judgment is based entirely on its dismissal for tribal exhaustion, this objection is moot. Further, the Court has a duty to make this determination sua sponte, mooting any questions of standing. See United States v. Tsosie, 92 F.3d 1037, 1041 (10th Cir. 1996).
II. Discussion
A. Legal framework
This case involves what one federal court has described as the complex web of considerations that envelops the interrelationship between federal courts and Indian tribal courts. Ninigret Dev. Corp. v. Narragansett Indian Wetuomuch Hous. Auth., 207 F.3d 21, 25 (1st Cir. 2000). As will be explained further below, two major principles are at issue: tribal jurisdiction and tribal exhaustion. The relationship between these two is somewhat confusing, as is their application to the present case. Therefore, before turning to the facts of this case, the Court briefly discusses the governing rules.
1. Tribal jurisdiction
The basic rule in this area is simple enough to state, though somewhat difficult to apply. Generally, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation. Strate v. A-1 Contractors, 520 U.S. 438, 446 (1997) (citing Montana v. United States, 450 U.S. 544 (1981)). There are two exceptions, however, to this general rule. Tribes have jurisdiction over nonmembers for actions on reservations, even on non-Indian fee lands, if (1) the nonmembers have entered into a consensual relationship with the tribe or its members; or (2) the activity at issue directly affects the tribe s political integrity, economic security, health, or welfare. See Strate, 520 U.S. at 446. Thus, there may sometimes be tribal jurisdiction over nonmembers reservation activity, even if the activity occurs on non-Indian fee lands. Id. The ultimate question in this case, of course, is whether either of these exceptions applies here. That question cannot be considered, however, without a brief discussion of exhaustion.
2. Tribal exhaustion
The doctrine of tribal exhaustion was first given form by the Supreme Court in Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, (1985), in which the Court held:
[T]he existence and extent of a tribal court s jurisdiction [over non-Indians] will require a careful examination of tribal sovereignty, the extent to which that sovereignty has been altered, divested, or diminished, as well as a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and administrative or judicial decisions. We believe that examination should be conducted in the first instance in the Tribal Court itself.Id. at 855-56. In sum, the tribal exhaustion rule holds that when a colorable claim of tribal court jurisdiction has been asserted, a federal court may (and ordinarily should) give the tribal court precedence and afford it a full and fair opportunity to determine the extent of its own jurisdiction over a particular claim or set of claims. Ninigret Dev. Corp., 207 F.3d at 31.
There are some limitations and qualifications to this general statement. First, the principle is not jurisdictional in nature but is rather a product of comity and related considerations. Id. Second, there are three generally recognized exceptions to the rule: (1) if the claim of tribal jurisdiction is intended to harass or is made in bad faith; (2) if the tribal court action violates express jurisdictional prohibitions; or (3) if exhaustion would be futile based on inability to challenge the tribal court s jurisdiction. See generally Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1501 (10th Cir. 1997). Finally, courts sometimes discuss aStrate exception, based on the recent Supreme Court case of that name, which will be addressed below.
3. Relationship between jurisdiction exhaustion
The Supreme Court has recently explained that these two sets of principles fit together to form one rule. In Strate, a tribe sought to distinguish the two lines of cases, arguing that the main Montana rule applied only to regulatory authority, while the exhaustion principles ofNat'l Farmers apply solely to adjudicatory authority. Strate, 520 U.S. at 447. Rejecting this argument, the Court explicitly integrated the two sets of cases, explaining that Montana's rule applies equally to regulatory and adjudicatory authority and that Nat'l Farmers is a prudential rule allowing tribal courts initially to respond to an invocation of their jurisdiction. Id. at 448, 453. With these rules in mind, the Court turns to the case at bar.
B. Application
The foregoing discussion frames the issue. The ultimate question is that of jurisdiction — whether this declaratory judgment action should be heard in this federal court or in tribal court. The first question, however, is that of exhaustion — who should make the initial decision on the ultimate question. The Court must thus first determine if this case is appropriate for tribal exhaustion. If it is, the Court will hold the case in abeyance and allow the tribe the first determination; if it is not, the Court will make the ultimate decision.
The exhaustion inquiry requires determining if defendant has made a colorable claim for tribal jurisdiction and then ensuring that none of the three traditional exceptions or the so-called Strate exception is met. See generally Ninigret Dev. Corp., 207 F.3d at 31. Though it has been unable to locate any clear definition, the Court takes a colorable claim of jurisdiction to be one sufficient to raise a legitimate question for the tribal court — a plausible or reasonable claim. This necessarily does not require either side to establish or undercut tribal jurisdiction beyond question; if it did, the questions of exhaustion and jurisdiction would conflate into one inquiry, which would fly in the face of Strate. 520 U.S. at 448, 453.
Therefore, the Court s first question is whether there exists here a plausible claim of tribal jurisdiction. Though the Court has been surprised by the lack of precedent on this topic, cases on the subject of auto accidents generally are instructive. One recent such case isAllstate Indem. Co. v. Stump, 191 F.3d 1071 (9th Cir. 1999) amended 197 F.3d 1031 (9th Cir. 1999). In Stump, the insured, a member of the Chippewa Cree Tribe, lost control of his vehicle and killed two passengers, who were also tribal members. Id. at 1072. It was not clearly established whether the accident took place on the reservation or not, though it was established that the insured resided on the reservation.Id. The off-reservation insurer, as here, sought a declaratory judgment in federal court. Id. at 1073.
On these facts, the Ninth Circuit found a colorable claim of tribal jurisdiction and thus required tribal exhaustion. Id. at 1072. It did so on the basis of the consensual relationship exception, holding that the facts that the insurer sold a policy to an Indian who resided on the reservation and engaged in post-accident communications on the reservation made the assertion of tribal jurisdiction plausible. Id. at 1075. In so doing, it cited Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987), in which the Supreme Court required tribal exhaustion on similar facts.
The Court recognizes that Stump, and by extension LaPlante, is not squarely on point with the case at bar. First, the insured here does not reside on the reservation, a fact which arguably undercuts potential tribal jurisdiction. Stump, 191 F.3d at 1075 (mentioning living on the reservation as a factor). However, the insured is an enrolled member who lives in close proximity to the reservation, and it is thus foreseeable that she would drive on the reservation. Further, unlike Stump, the accident at issue here apparently took place on the reservation, arguably strengthening the case for tribal jurisdiction. Id.
Thus, it is impossible to say that the claim plainly arose off the reservation, making tribal exhaustion appropriate. Id. This is exacerbated by the limited scope of the present record, which leaves questions which might shed more light on the issue unanswered, such as precisely where the accident occurred and whether Progressive had some reason to know the policy insured vehicles which routinely traveled on the reservation. The Court does not seek to provide an exhaustive list of such questions and how they would affect the case, merely to note that the record makes it difficult to rule that tribal jurisdiction is so clearly inappropriate that exhaustion is not required. Id.
Before continuing, the Court wishes to emphasize the preliminary, limited nature of its ruling. The Court explicitly does not rule that the tribal court has jurisdiction, merely that the facts in the record suggest it might. In these circumstances, the tribal exhaustion doctrine requires that this Court give the tribal court precedence and afford it a full and fair opportunity to determine the extent of its own jurisdiction[.] Ninigret Dev. Corp., 207 F.3d at 31. If ultimately called upon to decide the issue, the Court may conclude the tribe lacks jurisdiction. The Court makes no intimation of its position on this issue; indeed, it does not have one. Rather, the Court merely holds that the issue must initially be resolved elsewhere.
Having found a colorable claim of jurisdiction, the Court examines the exceptions to the exhaustion rule. The three traditional exceptions are not met here. See Kerr-McGee Corp., 115 F.3d at 1501 (listing exceptions). First, the claim of tribal jurisdiction does not appear to be intended to harass or to be made in bad faith; defendant Morin has already commenced a related lawsuit in tribal court, indicating a legitimate desire to litigate in that forum. Id. Further, the Court has already held above that a plausible case for tribal jurisdiction exists, further undercutting any suggestion that the claim is made in bad faith. Id. Second, it does not appear tribal court action would violate express jurisdictional prohibitions; at least, plaintiff has not suggested that it would. Id. Finally, there is no reason to believe that there is an inability to challenge the tribal court's jurisdiction which would render exhaustion futile; if such an inability exists, plaintiff may return to this Court. Id.
The Court notes plaintiff's argument that exhaustion is not required because the issue is not currently before the tribal court. See generally Garcia, 268 F.3d at 81-82. However, several cases have concluded that this fact does not bar exhaustion, and the Court agreeswith the latter approach.See id. (citing contrary cases).
Finally, the Court must briefly address the Strate exception which plaintiff urges the Court to apply. This is based on the Supreme Court s statement in Strate that
[w]hen . . . it is plain that no federal grant provides for tribal governance of nonmembers' conduct on land covered by Montana's main rule, it will be equally evident that tribal courts lack adjudicatory authority over disputes arising from such conduct. As in criminal proceedings, state or federal courts will be the only forums competent to adjudicate those disputes. . . . Therefore, when tribal-court jurisdiction over an action such as this one is challenged in federal court, the otherwise applicable exhaustion requirement . . . must give way, for it would serve no purpose other than delay.520 U.S. at 459 n. 14.
One federal court considering this issue has characterized this statement not as a new exception but rather as an elaboration of the first exception above. Petrogulf Corp. v. Arco Oil Gas Co., 92 F. Supp.2d 1111, 1115-16 (D.Colo. 2000). The Court agrees that viewing the Strate exception as a logical extension of the first main exception is the best reading of the passage. This conclusion is reinforced by the posture of Strate: Three courts — the district court, circuit court, and Supreme Court — had made definitive rulings on the ultimate jurisdictional question, making remand for exhaustion on the basis of comity moot. 520 U.S. at 459 n. 14.
This reading of Strate is enforced rather than undercut by Hornell Brewing Co v. Rosebud Sioux Tribal Court, 133 F.3d 1087 (8th Cir. 1998), cited by plaintiff to support its position that tribal exhaustion is unnecessary. In Hornell, a tribal member sued a nonmember in tribal court. Id. at 1089. The tribal court concluded that it had prima facie subject matter jurisdiction over the action. Id. The defendant then sought relief in federal court, asking that the district court enjoin the tribe from proceeding and declare that the tribe lacked jurisdiction.Id. at 1090. The district court held that the tribe lacked jurisdiction under Montana, but it nevertheless remanded for tribal exhaustion so the tribe could determine the jurisdictional facts by a preponderance of the evidence rather than the prima facie standard it had employed. Id. at 1090-91.
On appeal, the Eighth Circuit engaged in a substantive review of the jurisdictional question, holding that the tribe lacked the ability to hear the case and affirming in part the district court. Id. at 1093. However, it reversed the decision to remand for exhaustion, finding remand unnecessary in light of Strate and its own resolution of the jurisdictional issue. Id. Thus, Hornell seems to stand for the same proposition as Strate: When a court, or several courts, have made a definitive ruling on the ultimate jurisdictional question, there is no need to exhaust on the basis of a prudential comity consideration. Id.;see also Boxx v. Long Warrior, 265 F.3d 771, 777 (9th Cir. 2001) ( Because we conclude that the tribal court lacks jurisdiction over this claim, exhaustion is not required. ).
By contrast, when, as here, the district court concludes there is a colorable claim and requires exhaustion, this exception by logical necessity cannot apply. The district court s conclusion that there is a colorable jurisdictional issue precludes its immediately subsequent conclusion that tribal jurisdiction so clearly does not obtain that exhaustion would be unnecessary. Thus, the Court concludes that Strate does not prevent exhaustion.
III. Conclusion
As set forth above, plaintiff s motion for summary judgment (doc. # 4) and defendant's motion to dismiss (doc. # 7) are DENIED. However, as the Court has explained, the case will be stayed until the issue is resolved by the tribal court. If needed, the parties can then return to this forum for any further litigation. If this is unnecessary, the parties will so inform the Court and the case will be dismissed on the basis.
IT IS SO ORDERED.