Burlington Northern Railroad v. Red Wolf

Opinion by Judge WRIGHT; Dissent by Judge KLEINFELD. EUGENE A. WRIGHT, Circuit Judge. We must decide whether a district court may enjoin Indian tribal court proceedings before tribal remedies have been exhausted. We conclude that it may not because no exception to the exhaustion rule applies. BACKGROUND: A jury in Crow Tribal Court awarded $250 million to the heirs of two tribal members killed when a Burlington Northern Railroad train hit their car at a railroad crossing on the reservation. Under the Crow Tribal Code, execution on the judgment was automatically stayed for ten business days. The Railroad moved to stay the judgment and to waive the Code’s supersedeas bond requirement pending its appeal to the Crow Court of Appeals. The trial court denied the motion and ordered the Railroad to post bond in the amount of the judgment plus interest as required by Rule 18 of the Crow Tribal Court.1 The Railroad appealed that bond ruling. Before the tribal appellate court ruled on that question, the Railroad sought and received a temporary restraining order in federal court enjoining enforcement of the tribal court judgment. The' tribal trial court held a previously scheduled hearing regarding posting of a su-persedeas bond, but the Railroad refused to post such a bond and presented no alternatives to secure the judgment. The trial court held that without the Railroad’s participation it could not modify its previous order. The Tribal Court of Appeals declined to review the trial court’s bond order until after that court entered final orders concerning the specific security required as a condition of staying the judgment. It provided guidelines for the trial court’s determination of the appropriate bond or other security required and directed that court to stay all proceedings to execute on the judgment and any requirement for security during the pen-dency of any restraining orders issued by the district court. It further instructed the trial court to proceed to determine the appropriate form of security to be implemented when all federal restraining orders were lifted. Meanwhile, the district court granted the Railroad’s motion for a preliminary injunction against execution or enforcement of the tribal court judgment. The injunction was intended to “maintain[ ] the status quo and preserv[e] the court’s jurisdiction should future federal litigation occur in this matter.” The district court ordered the Railroad to post with the federal court a $5 million bond as security for the injunction, retained jurisdiction and stayed all further proceedings pending exhaustion of tribal remedies. The judgment creditors appeal the preliminary injunction. ANALYSIS: 1. Standard of Review We review de novo whether the court was required to abstain from granting the [870] injunction because Indian tribal court remedies had not been exhausted. Burlington Northern R.R. v. Crow Tribal Council, 940 F.2d 1239, 1244-45 (9th Cir.1991) (“[T]he requirement of exhaustion of tribal remedies is not discretionary; it is mandatory.”); Stock West Corp. v. Taylor, 964 F.2d 912, 920 (9th Cir.1992) (en banc) (conducting independent review of the applicable law and affirming abstention pending exhaustion of tribal court remedies). 2. Exhaustion of Tribal Court Remedies In matters over which tribal courts assert concurrent jurisdiction, exhaustion of tribal court remedies is required as a matter of comity. National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 857, 105 S.Ct. 2447, 2454, 85 L.Ed.2d 818 (1985). “At a minimum, exhaustion of tribal remedies means that tribal appellate courts must have the opportunity to review the determinations of the lower tribal courts.” Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 17, 107 S.Ct. 971, 977, 94 L.Ed.2d 10 (1987). The Railroad argues that the tribal courts had an adequate opportunity to decide whether or not it must post a supersedeas bond. Its motion for a stay from posting a bond in tribal court was considered by both the tribal court and the tribal appellate court. It concedes, however, that there was no final ruling on the form and amount of security that would suffice to stay the judgment. The district court acknowledged that tribal remedies had not been exhausted, but nevertheless exercised its injunctive power to maintain the status quo and to preserve its jurisdiction. As with any other exercise of federal jurisdiction, injunctive relief requires exhaustion of tribal court remedies unless there is an applicable exception to the exhaustion rule. National Farmers recognized certain exceptions to the exhaustion requirement: We do not suggest that exhaustion would be required where an assertion of tribal jurisdiction “is motivated by a desire to harass or is conducted in bad faith,” cf. Juidice v. Vail, 430 U.S. 327, 338 [97 S.Ct. 1211, 1218, 51 L.Ed.2d 376] (1977) 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. National Farmers, 471 U.S. at 856 n. 21, 105 S.Ct. at 2454 n. 21; see also, Crawford v. Genuine Parts Co., Inc., 947 F.2d 1405, 1408 (9th Cir.1991), cert. denied, 502 U.S. 1096, 112 S.Ct. 1174, 117 L.Ed.2d 419 (1992). The Railroad does not argue that a National Farmers exception applies. But it does argue that further tribal court proceedings to determine the amount of a bond or the nature of other security would be futile because it could not risk posting a bond or other security in tribal court. It asserts as a reason for refusing to post bond in tribal court that alleged due process violations at trial might not be eligible for federal review if the judgment can be enforced on the reservation.2 The Railroad argues that a federal court proceeding to enforce the judgment could provide its only opportunity to challenge the $250 million judgment. See Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1410 (9th Cir.) (holding that a foreign judgment cannot be enforced if it was obtained in a manner not in accord with due process), cert. denied, — U.S. -, 116 S.Ct. 519, 133 L.Ed.2d 427 (1995). By refusing to post a bond in tribal court, the Railroad hopes to force the judgment creditors to enforce the judgment in federal court against off-reservation assets. The Railroad’s “futility” argument cannot be construed as an exception to the exhaustion requirement. The National Farmers futility exception applies where exhaustion would be futile because of lack of adequate opportunity to challenge the court’s jurisdiction. National Farmers, 471 U.S. at 856 n. 21, 105 S.Ct. at 2454 n. 21 . The judgment creditors here agreed to condition the super-sedeas bond upon completion of all available [871] federal review. Regardless of the extent of review available, it may not be said that there is inadequate opportunity to challenge the court’s jurisdiction when, as here, federal review of tribal court jurisdiction is assured. 3. Retention of Jurisdiction v. Exercise of Jurisdiction In its order granting injunctive relief, the district court acknowledged that exhaustion is a matter of comity, not a jurisdictional prerequisite. It said, citing National Farmers, that retention of jurisdiction pending completion of tribal proceedings is consistent with the exhaustion doctrine. The court concluded it could exercise jurisdiction for the purpose of maintaining the status quo and preserving its jurisdiction even though the Railroad had not first exhausted its tribal court remedies. This conclusion confuses the court’s discretion to retain jurisdiction pending exhaustion of tribal court remedies (an alternative to dismissal) with the exercise of jurisdiction prior to exhaustion. The court lacks discretion to exercise its jurisdiction until tribal remedies have been exhausted or an exception to the exhaustion requirement makes exhaustion unnecessary. CONCLUSION: We hold that under National Farmers, the court erred in exercising its jurisdiction because the Railroad had not exhausted its remedies in the tribal courts or established that any exception to the exhaustion requirement applied. The district court will dissolve the preliminary injunction and either dismiss this action without prejudice or stay it until all tribal court remedies have been exhausted. REVERSED AND REMANDED. Footnotes [1] Rule 18(b) provides that when a final order or judgment is appealed, the tribal court may grant a stay of execution or judgment upon appellant’s motion, provided that appellant, on or before the date of filing the appeal, posts a surety bond sufficient to guarantee performance of the judgment and payment of the costs of appeal. [2] This due process review would be unavailable if appellants later prevail on their argument that Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), precludes private enforcement of the Indian Civil Rights Act, 25 U.S.C. § 1302(8), in federal court.