Warrior v. Boxx, (2000)

• Decision Date: 09 March 2000
• Docket Number: CIV. APP. 97-241
• Parties: HEATHER LONG WARRIOR, PLAINTIFF/APPELLANT, v. MICHAEL BOXX, DEFENDANT/APPELLEE.
• Court: Crow Court of Appeals in And For the Crow Indian Reservation Crow Agency Montana

HEATHER LONG WARRIOR, PLAINTIFF/APPELLANT, v. MICHAEL BOXX, DEFENDANT/APPELLEE.

CIV. APP. No. 97-241

Crow Court of Appeals in And For the Crow Indian Reservation Crow Agency, Montana

March 9, 2000

ORDER STAYING PROCEEDINGS

¶1 This is an appeal by plaintiffHeather Long Warrior from the Order of the Crow Tribal Court(Yellowtail, S.J.), entered on July 30, 1999, granting defendantMichael Boxx's motion to dismiss for lack of subject matter jurisdiction.

¶2 Following dismissal by the Crow Tribal Court, the U.S District Court initially dismissed as moot Mr. Boxx's Federal-court challenge to Tribal court jurisdiction.Boxx v. Long Warrior, CV 98-183-BLG-JDS(Order dismissing without prejudice, Aug. 19, 1999).However recognizing that this matter was now before this court on appeal, the District Court on December 10, 1999, vacated its previous order and affirmatively held that the Crow Tribal Court lacked jurisdiction to decide this case.The District Court also permanently enjoined Ms. Long Warrior from proceeding with this case in Crow Tribal Court.

¶3 Based on the U.S. District Court's order, Appellee Boxx has moved for dismissal of this appeal.AppellantLong Warrior has responded by advising that she intends to appeal the U.S. District Court's decision, and that we should instead stay further proceedings in this appeal pending a final decision of the Federal courts.

¶4 As explained below, this case presents a substantially different set of jurisdictional facts from those in Strate v. A-1 Contractors,520 U.S. 438(1997), and the other authority on which the Tribal Court and the District Court relied.In view of those differences, we believe that there is a substantial question as to whether the U.S. District Court's order prematurely preempted this court's review of the jurisdictional issue, as it did in National Farmers Union Ins. Cos. v. Crow Tribe,471 U.S. 845(1985).^[1] Although the District Court's order prevents this court from having the benefit of further briefing on Appellee's dismissal motion, it does not require dismissal of this appeal.Therefore, in order to preserve the Crow Tribal Courts' opportunity to fully review the factual and legal bases for this challenge to our jurisdiction, we must deny Appellee's motion to dismiss, and stay further proceedings pending Federal appellate review of the District Court's ruling.

Exceptions to the Tribal Court Exhaustion Rule

¶5The Court's principal holding in National Farmers was that the Federal courts have federal-question jurisdiction over a challenge to Tribal court jurisdiction, but as a matter of comity, should refrain from exercising that jurisdiction until after the parties"have exhausted their remedies in the Tribal Court system."National Farmers, 471 U.S. at 857.At the same time, the Court recognized that there would be certain exceptions to this "prudential" exhaustion rule where Tribal jurisdiction is asserted in bad faith or to harass, "or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court's jurisdiction."Id. at 856 n.21.

¶6 None of these exceptions apply to the present case.There has been no assertion that the Crow Tribal member plaintiff suing the defendant for injuries she sustained while riding in his pickup on the Crow Reservation has proceeded in "bad faith" or for purposes of harassment simply because she brought her action in the Crow Tribal Court.Nor have the parties or the trial courts identified any treaty or Act of Congress that expressly prohibits the Tribal Court from exercising the Crow Tribe's inherent sovereignty by assuming jurisdiction of this action.And the Tribal Court's thoughtful opinion and holding that it lacked jurisdiction demonstrates that adequate opportunities exist for the defendant to challenge jurisdiction in the Tribal courts, so the "futility" exception cannot apply in this case.

¶7 However, the Strate decision apparently brought a particular class of cases within the exceptions to the exhaustion rule by declaring in a footnote:

When as in this case, 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. . . .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.Strate,520 U.S. at 459-60 n.14(citations omitted).

Thus, in order to determine whether the exhaustion rule applies in this case, it will be necessary to determine whether it is "an action such as this one" within the meaning of the above-quoted footnote in Strate.

Facts and Proceedings Below

¶8 The Tribal Court made its jurisdictional determination based on stipulated facts.This case arose from single-vehicle rollover accident that occurred in 1996 within the Crow Reservation on the "Ok-E-Beh Road."That road lies on a right-of-way granted to the United States of America across Crow Trust AllotmentNo. 699(Rides Horse, deceased).The plaintiff, who seeks recovery for injuries allegedly sustained as a passenger in the vehicle, is a member of the Crow Tribe.The defendant, who was allegedly the owner and driver of the pickup at the time of the accident, is a non-member who was employed by the National Park Service at the Big Horn Canyon National Recreation Area.

¶9 Because of the important jurisdictional issue, and without objection, the Tribal Court allowed the Crow Tribe to intervene as a party pursuant to Rule 8(f)(2) of the Crow Rules of Civil Procedure.The Tribe has not filed a notice of appeal in this case.

¶10 The Tribal Court held that "the right-of-way in question is the equivalent of alienated fee land[,]" relying on Strate and subsequent cases from the Ninth Circuit and the U.S. District Court.Long Warrior v. Boxx, No. CV-97-241, Findings of Fact, Conclusions of Law, and Order Granting Defendant's Rule 7Motion to Dismiss(CrowTribal Court, July 31, 1999)at page 7.Based on that holding, the Court went on to analyze the two exceptions under Montana v. United States,450 U.S. 544(1981), and found that neither applied.Thus, following the approach outlined in Strate, the Tribal Court concluded that it lacked jurisdiction.

¶11 In its Order of December 10, 1999, the U.S. District Court found that "[f]or exhaustion purposes this case is virtually indistinguishable from Strate, Wilson, and Austin's Express[.]"Boxx v. Long Warrior, supra, slip op. at page 3.Based on those same authorities, the District Court went on to hold that the right-of-way was "the equivalent of nonmember fee land," and that neither of the Montana exceptions applied.Id., slip op. at 3-6.

¶12 On the record before us, this court respectfully disagrees with the conclusions of the Tribal Court and the U.S. District Court.

The Federal Road Right-of-Way

¶13 First, this court has reservations about whether Strate and related authorities compel a holding that the road right-of-way in this case is equivalent to non-Indian fee land for jurisdictional purposes.The road on which the accident occurred is owned and maintained by the United States.None of the authorities on which the trial courts relied involved a Tribal member injured on a federal road.Rather, the accident in Strate involved two non-members, and occurred on a public highway right-of-way granted to and maintained by the State of North Dakota.The express holding in Strate was that "tribal courts may not entertain claims against nonmembers arising out of accidents on state highways, absent a statute or treaty authorizing the tribe to govern the conduct of nonmembers on the highway in question."Strate, 520 U.S. at 442(emphasis added);see also, id at 459("a commonplace state highway accident").The Supreme Court has recently acknowledged that "Strate dealt with claims against nonmembers arising on state highways[.]"El Paso Natural Gas Co. v. Neztsosie,119 S.Ct. 1430, 1436 n.4(1999)(emphasis added).

¶14 The Ninth Circuit case that extended Strate to accidents involving Tribal members arose on the Blackfeet Reservation within a highway right-of-way granted to and maintained by the State of Montana.Wilson v. Marchington,127 F.3d 805, 813-14(9th Cir.1997)("this case mirrors the facts of Strate almost precisely").The same is true of Austin's Express, Inc. v. Arneson,996 F.Supp 1269(D. Mont.1998), which involved a Crow pedestrian killed on Interstate 90 within the Crow Reservation.See also, Montana v. King,191 F.3d 1108(9th Cir., 1999)(Fort Belknap Community's TERO ordinance did not apply to State employees carrying out State's sovereign responsibilities to maintain a State highway on the Reservation).

¶15 Distinguishing its holding with respect to state highways, the Supreme Court in Strate specifically stated that it expressed no view "on the governing law or proper forum when an accident occurs on a tribal road within a reservation."Strate, 520 U.S. at 442(emphasis added).The Strate Court did not comment about jurisdiction or applicable law when an accident occurs on an exclusively federal road within a reservation.

¶16The Supreme Court's most recent guidance on Tribal jurisdiction over reservation lands conveyed to the United States was in South Dakota v. Bourland,508 U.S 679(1993).In Bourland, the Supreme Court held that the Government's taking from the Cheyenne River Sioux Tribe of the area comprising the Oahe Dam and Reservoir Project abrogated the Tribe's right to...