Cross v. Fox, Case No. 1:20-CV-00177

• Decision Date: 28 October 2020
• Docket Number: Case No. 1:20-CV-00177
• Citation: 497 F.Supp.3d 432
• Parties: Raymond CROSS and Marilyn Hudson, Plaintiffs, v. Mark FOX, Randy Phelan, Fred Fox, Mervin Packineau, Judy Brugh, Cory Spotted Bear, and Monica Mayer, individually and as members of the Three Affiliated Tribes Tribal Business Council, Defendants.
• Court: U.S. District Court — District of North Dakota

497 F.Supp.3d 432

Raymond CROSS and Marilyn Hudson, Plaintiffs,

v.Mark FOX, Randy Phelan, Fred Fox, Mervin Packineau, Judy Brugh, Cory Spotted Bear, and Monica Mayer, individually and as members of the Three Affiliated Tribes Tribal Business Council, Defendants.

Case No. 1:20-CV-00177

United States District Court, D. North Dakota.

Signed October 28, 2020

Lawrence E. King, Dennis Pathroff, Zuger Kirmis & Smith, Bismarck, ND, for Plaintiffs.

ORDER GRANTING MOTION TO DISMISS

Daniel M. Traynor, District Judge

[¶1] THIS MATTER comes before the Court on a Motion for a Preliminary Injunction filed by the Plaintiff's on September 29, 2020. Doc. Nos. 5, 9. The Defendants also filed a Motion to Dismiss for Lack of Jurisdiction on October 26, 2020.¹ Doc. No. 20. For the reasons set forth below the Defendant's Motion to Dismiss is GRANTED and the Plaintiff's Complaint is DISMISSED without prejudice . The Plaintiff's Motion for Declaratory Judgment and Injunctive Relief, Motion Requesting Oral Argument, and Motion for a Preliminary Injunction are DENIED AS MOOT .

BACKGROUND

[¶2] Plaintiffs Raymond Cross ("Cross") and Marilyn Hudson ("Hudson") initiated this action on September 29, 2020 by filing a complaint. Doc. No. 1. Plaintiffs also filed a Motion for Declaratory Judgment and Injunctive Relief, Motion Requesting Oral Argument, and a Motion for a Preliminary Injunction on September 29, 2020. Doc. Nos. 5, 8, 9.

[¶3] Both Plaintiffs are enrolled members of the Three Affiliated Tribes ("TAT"). Doc. No. 1. at ¶20. Three Affiliated Tribes are the Mandan, Hidatsa, and Arikara, or MHA Nation. Cross resides off the reservation and is a resident of Tucson, Arizona. Id. at ¶21. Cross notes he was diagnosed with a malignant spinal tumor

in 2015, is severely limited in his mobility, and has little or no feeling in his lower extremities. Id. Hudson resides on the reservation and is a resident of Parshall, North Dakota. Id. at ¶22. She also contends she has several health ailments. Id. Plaintiffs take issue with the ‘return to the reservation to vote requirement’ for non-residents, while permitting residents of the reservation to obtain absentee ballots. Id. at ¶3. The Plaintiffs allege the Defendants, individually and as members of the Three Affiliated Tribes Tribal Business Council, have "impermissibly burden[ed]" their rights by burdening their ability to vote, hold office, nominate a political candidate, or "secure representation" on the Three Affiliated Tribes governing body. Id. at p. 2. Plaintiffs allege this is in violation of the Indian Civil Rights Act ("ICRA") and the Voting Rights Act ("VRA").

[¶4] Defendants filed a Motion to Dismiss for Lack of Jurisdiction on October 26, 2020. Doc. No. 20. Defendants contend this Court lacks subject matter jurisdiction, sovereign immunity divests this Court of jurisdiction, and tribal remedies must be exhausted.

ANALYSIS AND LEGAL DISCUSSION

I. STANDARDS

a. Exhaustion of Tribal Remedies for ICRA Due Process and Equal Protection Claims

[¶5] Before the Court may address a motion for a preliminary injunction, the Court must be satisfied it has jurisdiction over the matter. "Federal courts are courts of limited jurisdiction." Myers v. Richland County, 429 F.3d 740, 745 (8th Cir. 2005). The burden of establishing a federal court's jurisdiction rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Because the majority of the Plaintiffs’ arguments are based on the ICRA and VRA, the Court will not engage in an in-depth analysis of every ground under which the Plaintiffs assert the Court has jurisdiction.²

[¶6] The Plaintiffs have brought an ICRA claim in the MHA Tribal Court. The Plaintiffs recognize their ICRA claims are properly brought before the Tribal Court. However, they assert that because this Court has purported jurisdiction over their federal statutorily based VRA claims, they should be relieved of their exhaustion requirements for their ICRA claims and this Court should hear all claims. Doc. No. 1, ¶13. In line with this request, they argue this Court should excuse exhaustion on the basis that they believe the MHA Tribal Court is not an adequate judicial forum to hear their claims. Doc. No. 1, ¶14. This Court declines the invitation to excuse exhaustion.

[¶7] Courts have consistently stated "[t]he tribal exhaustion doctrine ... favors exhaustion of available remedies in tribal court before a collateral or parallel federal court action may proceed." Gaming World Int'l, Ltd. v. White Earth Band of Chippewa Indians, 317 F.3d 840, 849 (8th Cir. 2003). The Supreme Court requires a party to exhaust Tribal Court remedies even in cases where a federal court has jurisdiction concurrent with a Tribal Court and even where non-Indian parties are involved." World Fuel Servs., Inc. v. Nambe Pueblo Dev. Corp., 362 F. Supp. 3d 1021, 1058 (D.N.M. 2019). "Exhaustion is required as a matter of comity, not as a jurisdictional prerequisite," so "the rule is analogous to principles of abstention[.]" Stanko v. Oglala Sioux Tribe, 916 F.3d 694, 699 (8th Cir. 2019) (citing Iowa Mut. Ins. Co. v. LaPlante., 480 U.S. 16 n.8, 107 S.Ct. 971, 94 L.Ed.2d 10 ). "Where applicable, this prudential doctrine has force whether or not an action actually is pending in a tribal court." Hengle v. Asner, 433 F. Supp. 3d 825, 860 (E.D. Va. 2020), motion to certify appeal granted, No. 3:19CV250 (DJN), 2020 WL 855970 (E.D. Va. Feb. 20, 2020). "Moreover, the doctrine applies even though the contested claims are to be defined substantively by state or federal law." Id. But even where a federal question exists, due to considerations of comity, federal court jurisdiction does not properly arise until available remedies in the tribal court system have been exhausted." Auto-Owners Ins. Co. v. Tribal Court of Spirit Lake Indian Reservation, 495 F.3d 1017, 1021 (8th Cir. 2007).

[¶8] This is to ensure certain interests of both tribal and federal courts are advanced including: "(1) supporting tribal self-government and self-determination; (2) promoting the orderly administration of justice in the federal court by allowing a full record to be developed in the Tribal Court; and, (3) providing other courts with the benefit of the tribal courts’ expertise in their own jurisdiction." Hengle v. Asner, 433 F. Supp. 3d 825, 860 (E.D. Va. 2020), motion to certify appeal granted, No. 3:19CV250 (DJN), 2020 WL 855970 (E.D. Va. Feb. 20, 2020) (citing Nat'l Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845, 856-57, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985) ). It becomes even more important when the issues being litigated involve tribal affairs and tribal members. For example, in Navajo Nation v. Intermountain Steel Bldgs., the Court noted:

It is difficult to conceive how tribal self-government and self-determination will be advanced by the exercise of federal court jurisdiction over a matter involving the Navajo Nation, a Navajo commercial entity, and a contract between these Navajo parties and a non-Indian defendant to construct a Navajo-owned building located on Navajo land within the boundary of the Navajo Nation. This is especially true because the parties disagree about the applicability of Navajo law and custom ... There is no reason to believe that the courts of the Navajo Nation would not be able to properly address the parties’ dispute. To support tribal self-government, the Navajo tribal courts should be given the opportunity to do so.

Moreover, if the Navajo Tribal Court reached the merits of the action, a federal court would have the benefit of the Navajo Tribal Court's prior interpretation of Navajo law and customs that may apply to this case.

Navajo Nation v. Intermountain Steel Bldgs., Inc., 42 F. Supp. 2d 1222, 1229 (D.N.M. 1999)

[¶9] The Supreme Court has recognized four narrow exceptions to the tribal exhaustion doctrine. These include:

(1) the assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bath faith; (2) the tribal action is patently violative of express jurisdictional prohibitions; (3) exhaustion would be futile because of a lack of an adequate opportunity to challenge the tribe's jurisdiction, and (4) exhaustion would serve no purpose other than delay where no federal grant provides for tribal governance of nonmembers’ conduct.

Magee v. Shoshone Paiute Tribes of Duck Valley Reservation, 460 F.Supp.3d 1073, 1077, 1078 (D. Nev. 2020) (citing 533 U.S. 353, 369, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) ) (citing Nevada v. Hicks ). The Plaintiffs in this matter seek to invoke exception (3) futility.

[¶10] On November 2, 2018, the Plaintiffs commenced an action in MHA Tribal District Court seeking "(1) a preliminary injunction requiring absentee ballots be sent to all tribal voters over the age of eighteen in the 2018 tribal elections and enjoining any further action on the ‘return to the Reservation to vote’ requirement and (2) a declaratory judgment invalidating the ‘return to the Reservation to vote’ requirement." Doc. No. 1, ¶19. The Tribal District Court denied the Plaintiffs’ request on November 5, 2018. Doc. No. 1, ¶19. On March 8, 2019, the TBC moved to dismiss the Plaintiffs’ Complaint. Doc. NO. 1, ¶19. Because the TBC attached extrinsic documents in support of its Motion to Dismiss, the Tribal Court converted the Motion into a Motion for Summary Judgment. Doc. No. 1, ¶19. Oral argument was heard on May 30, 2019. Doc. No. 1, ¶19. On August 5, 2019, the Tribal District Court dismissed the Plaintiffs’ case. Doc. No. 1, ¶19.

[¶11] The Plaintiffs appealed that decision to the MHA Supreme Court on October 24, 2019, requesting an expedited oral argument. Doc. No. 1, ¶19. The Plaintiffs renewed their request for oral argument on April 20, 2020, with considerations surrounding the COVID-19 pandemic. Doc. No. 1, ¶19. The MHA Supreme Court heard oral argument on June 3, 2020 via Zoom video call. Doc. No....