Elliott v. White Mountain Apache Tribal Court, 07-15041.

• Decision Date: 14 May 2009
• Docket Number: No. 07-15041.,07-15041.
• Citation: 566 F.3d 842
• Parties: Valinda Jo ELLIOTT, Plaintiff-Appellant, v. WHITE MOUNTAIN APACHE TRIBAL COURT; Honorable John Doe Tribal Judge; and White Opinion Mountain Apache Tribe, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

566 F.3d 842

Valinda Jo ELLIOTT, Plaintiff-Appellant, v. WHITE MOUNTAIN APACHE TRIBAL COURT; Honorable John Doe Tribal Judge; and White Opinion Mountain Apache Tribe, Defendants-Appellees.

No. 07-15041.

United States Court of Appeals, Ninth Circuit.

Argued October 22, 2008.

Resubmitted May 7, 2009.

Filed May 14, 2009.

[566 F.3d 844]

Cari M. McConeghy-Harris, Law Offices of David Michael Cantor, P.C., Tempe, AZ, for the plaintiff-appellant.

Robert C. Brauchi, Tucson, AZ, and Alexander B. Ritchie, White Mountain Apache Tribe, Whiteriver, AZ, Howard M. Shanker and Laura Berglan, The Shanker Law Firm, PLC, Flagstaff, AZ, for the defendants-appellees.

Joe B. Sparks, The Sparks Law Firm, P.C., Scottsdale, AZ, for the amicus curiae.

Appeal from the United States District Court for the District of Arizona, Mary H. Murguia, District Judge, Presiding. D.C. No. CV-05-04240-MHM.

Before: SIDNEY R. THOMAS and SUSAN P. GRABER, Circuit Judges, and STEPHEN G. LARSON,^* District Judge.

GRABER, Circuit Judge:

A tribal court's jurisdiction over nonmembers of the tribe is limited. As a matter of comity, however, federal courts generally decline to entertain challenges to a tribal court's jurisdiction until the tribal court has had a full opportunity to rule on its own jurisdiction. Finding that no exception to that general rule applies here, the district court held that exhaustion of tribal court remedies is required. On de novo review, Boozer v. Wilder, 381 F.3d 931, 934 (9th Cir.2004), we affirm.

FACTUAL AND PROCEDURAL HISTORY

In June 2002, Plaintiff Valinda Jo Elliott, a non-Indian, was riding in a private vehicle with her employer in the high desert of Arizona, in an area located within the borders of the White Mountain Apache Tribe's reservation. They got lost and ran out of fuel. Unadvisedly, they split up to search for help. Forest rangers rescued Plaintiff's employer but could not locate Plaintiff. For three days, she remained lost and without food, water, or proper clothing.

In her wanderings, Plaintiff saw a forest fire in the distance. On the third day, she spotted a news helicopter recording the fire, which had been named the Rodeo fire. In an understandable effort to attract the helicopter occupants' attention, Plaintiff set a small signal fire.

Fortunately, her idea worked; the helicopter descended and rescued Plaintiff. Unfortunately, her signal fire grew into a substantial forest fire, which was named the Chediski fire. That fire eventually merged with the Rodeo fire and was dubbed, naturally, the Rodeo-Chediski fire. The combined fire burned more than 400,000 acres of land and caused millions of dollars in damage.

The United States Attorney's Office did not prosecute Plaintiff.¹ The tribe, however brought a civil action against Plaintiff in tribal court, seeking civil penalties and an order of restitution. The tribe brought eight claims against Plaintiff, alleging violations of tribal executive orders, the tribal game and fish code, the tribal natural resource code, and common law negligence and trespass.² Plaintiff (the defendant in that action) filed a motion to dismiss for lack of jurisdiction. The tribal trial court denied the motion, holding that it had jurisdiction under the relevant United States Supreme Court cases.

Plaintiff sought interlocutory appellate review of that decision in the tribal appellate court, but the tribal appellate court issued an order denying Plaintiff's request for appellate review. The tribal appellate court held that, under its rules of appellate procedure as promulgated by the tribal legislature, it cannot entertain interlocutory appeals. It therefore dismissed the appeal from a nonfinal order for lack of appellate jurisdiction and returned the case to the tribal trial court for further proceedings.

Plaintiff then brought this action in federal district court. Plaintiff seeks injunctive and declaratory relief against Defendants White Mountain Apache Tribe, Honorable John Doe Tribal Judge, and White Mountain Apache Tribal Court, and from conducting any further proceedings in tribal court. The district court held that Plaintiff must exhaust her tribal court remedies and granted Defendants' motion to dismiss. The district court dismissed the action without prejudice to its refiling after Plaintiff has exhausted her tribal court remedies. Plaintiff timely appeals.

DISCUSSION

A. Appellate Jurisdiction

We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 over the district court's final decision that Plaintiff must exhaust her tribal court remedies before refiling. Defendants argue that the district court's order and subsequent judgment are not "final" for purposes of § 1291 because those documents state that the action is dismissed "without prejudice." According to Defendants, the present decision is not "final" because Plaintiff eventually could refile after exhausting her tribal court remedies. We reject Defendants' hypertechnical reading of § 1291.

The Supreme Court has explained that its

cases long have recognized that whether a ruling is "final" within the meaning of § 1291 is frequently so close a question that decision of that issue either way can be supported with equally forceful arguments, and that it is impossible to devise a formula to resolve all marginal cases coming within what might well be called the "twilight zone" of finality. Because of this difficulty this Court has held that the requirement of finality is to be given a "practical rather than a technical construction."³

Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). In turn, we have given the following practical construction: "A ruling is final for purposes of § 1291 if it (1) is a full adjudication of the issues, and (2) clearly evidences the judge's intention that it be the court's final act in the matter." Nat'l Distribution Agency v. Nationwide Mut. Ins. Co., 117 F.3d 432, 433 (9th Cir.1997) (internal quotation marks omitted).

We have no trouble concluding that the district court intended that the order be the court's final act in the matter. In National Distribution Agency, we expressed frustration with divining a court's intent from ambiguous orders and offered a practical suggestion: "Had the court entered a separate final judgment subsequent to the dismissal order, we would be confident the court intended no further action in the case." Id. at 434. Here, the district court followed our advice and helpfully entered a final judgment. The second prong of the finality test, which "focus[es] on the court's intent," id., is therefore met.

The first prong of the test, which is separate from the district court's intent, is whether there has been a "full adjudication of the issues." Id. at 433. Here, there has been a full adjudication of the issue whether Plaintiff must exhaust tribal court remedies. Unless and until Plaintiff exhausts her tribal court remedies, there is nothing further for the district court to do.

Defendants counter that there are more issues before the district court than just exhaustion of tribal court remedies. They correctly point out that, if Plaintiff exhausts her tribal court remedies and returns to district court, there will be other issues on which the district court must rule (i.e., the merits of whether the tribal court has jurisdiction). According to Defendants, those issues remain before the district court now and the order dismissing the action without prejudice is therefore not final.

We reject Defendants' strained understanding of the issues before the district court. First, those additional issues may eventually come before the district court, but that is far from certain. It cannot be said that the district court will necessarily have to rule on them (for instance, the tribal appellate court could hold that it lacks jurisdiction or the parties could settle their dispute). Second, those issues are plainly not before the district court at the present time. Having dismissed the action, the district court is powerless to rule on the issues that might eventually come before it if a new action is filed in the future. Third, as discussed above, the Supreme Court has directed that appellate courts give a practical construction to the finality requirement. That guidance undermines Defendants' technical argument. We therefore turn to the merits of this appeal.

B. Exhaustion of Tribal Court Remedies

"Non-Indians may bring a federal common law cause of action under 28 U.S.C. § 1331 to challenge tribal court jurisdiction." Boozer, 381 F.3d at 934 (citing Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 850-53, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985)). But a plaintiff must first exhaust tribal court remedies. See, e.g., Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 19, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987); Nat'l Farmers, 471 U.S. at 856-57, 105 S.Ct. 2447; see also Atwood v. Fort Peck Tribal Court Assiniboine, 513 F.3d 943, 948 (9th Cir.2008) (applying the doctrine).

Plaintiff acknowledges the doctrine generally but argues that it does not apply for two reasons. First, she argues that she already exhausted her tribal court remedies. In the alternative, she argues that she need not exhaust tribal court remedies because of an exception to the doctrine.

1. Full Exhaustion of Tribal Court Remedies

Plaintiff argues that she exhausted her tribal court remedies because she sought — and received — a ruling by the tribal trial court on jurisdiction and because she sought a ruling by the tribal appellate court. Plaintiff argues that exhaustion is complete notwithstanding the fact that the tribal appellate court has not yet ruled on the merits of the jurisdictional issue because it lacks authority to accept interlocutory appeals.

This issue is controlled by Iowa Mutual. The relevant facts were identical: ...