In re: Otter Tail v.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________

No. 96-3618
___________

I n re: Otter Tail Power Company, *

*
Petitioner. *
__________
Petition and Appeal from
the
No. 96-3637 United States District
Court
__________ for the District of North
Dakota.

Baker Electric, a North Dakota Rural *
Electric Cooperative Association, *
*
Appellee, *
*
v. *
*
Otter Tail Power Company, *
*
Appellant. *
___________

Submitted: January 14, 1997
Filed:
June 23, 1997
___________

Before McMILLIAN, WOLLMAN, and MAGILL,1 Circuit Judges.
___________

1
The Honorable Frank J. Magill was an active judge at the time this case was
submitted and assumed senior status on April 1, 1997, before the opinion was filed.
-2-
MAGILL, Circuit Judge.

The Baker Electric Cooperative, Inc. (Baker) brought
this suit for injunctive relief and damages against the
Otter Tail Power Company (Otter Tail) in the North Dakota
state court to prevent Otter Tail from providing
electricity to property on trust land on the Fort Totten
Indian Reservation in North Dakota. Otter Tail removed
the case to the United States District Court for the
District of North Dakota. Subsequently, the district
court remanded the matter back to the North Dakota state
court, concluding that the district court lacked subject
matter jurisdiction. Otter Tail now appeals, and we
reverse.

I.

The Spirit Lake Sioux Tribe2 (Tribe) is a federally
recognized Indian Tribe which occupies the Fort Totten
Reservation (Reservation). The Reservation, created by
treaty in 1867, see Treaty with the Sioux-Sisseton and
Wahpeton Bands, 15 Stat. 505 (1867), consists of 245,141
acres located within Ramsey, Eddy, Nelson, and Benson
counties of North Dakota. Approximately three-fourths of
the reservation is held in fee by non-tribal members,
while approximately 63,000 acres are either held in trust
for the Tribe by the United States, owned by the Tribe in
fee simple, or owned by tribal members in fee simple.
See Devils Lake Sioux Indian Tribe v. North Dakota Pub.
Serv. Comm'n, 896 F. Supp. 955, 958 (D.N.D. 1995) (Devils
Lake).

2
The Spirit Lake Sioux Tribe was previously known as the Devils Lake Sioux
Tribe.

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 Electricity consumers on the Reservation have
received electrical services from three utilities
companies: (1) Otter Tail, an investor-owned Minnesota
corporation; (2) Baker, a North Dakota cooperative; and
(3) Sheyenne Valley Electric Cooperative, Inc., also a
North Dakota cooperative. Controversy arose between
Otter Tail and the two cooperative utility companies in
1988 when the Tribe asked Otter Tail to provide

-4-
electricity to Dakota Tribal Industries (DTI), a tribally
owned business located on trust land within the
Reservation.

The North Dakota Public Service Commission (NDPSC) is
a state administrative body which regulates investor-
owned electric utilities in North Dakota. Pursuant to
North Dakota statute, NDCC 49-03.1, investor-owned
utilities must obtain a Certificate of Public Convenience
and Necessity (Certificate) from the NDPSC prior to the
construction, operation, or extension of a public utility
system. The NDPSC asserted that it had jurisdiction to
regulate the provision of electricity on the Reservation,
and Otter Tail attempted to obtain a Certificate from the
NDPSC allowing Otter Tail to extend its system to serve
DTI. Prior to obtaining a Certificate, however, Otter
Tail began providing electricity to DTI.

Baker protested the application for a Certificate,
and the NDPSC held a hearing. The NDPSC also issued a
show cause order for Otter Tail's alleged contempt in
providing electricity without having obtained a
Certificate. In response, Otter Tail sought a writ of
prohibition in the North Dakota state court against the
NDPSC's show cause order, alleging that the NDPSC did not
have jurisdiction over the Reservation.

After initial proceedings in the North Dakota state
district court, the North Dakota Supreme Court assumed
jurisdiction. In Application of Otter Tail Power Co.,
451 N.W.2d 95 (N.D. 1990), the North Dakota Supreme Court
reached two alternative holdings. First, because the
Tribe was not a party to the proceedings, the court held

-5-
that Otter Tail did not have standing to argue that the
NDPSC's assertion of jurisdiction over the Reservation
would impair tribal sovereignty. See id. at 97-98.
Second, the court held that, assuming that Otter Tail did
have standing to pursue this argument, the NDPSC
nevertheless had regulatory jurisdiction over the entire
Reservation. See id. at 98. Accordingly, the NDPSC was
allowed to continue its contempt proceeding against Otter
Tail. See id. at 107.

-6-
 Contrary to the North Dakota Supreme Court's decision
that the NDPSC had jurisdiction to regulate electrical
services on the Reservation, in July 1990 the Tribe
promulgated its own regulations, asserting that the Tribe
had exclusive authority to regulate electrical services
on the Reservation. See Baker Elec. Coop., Inc. v.
Chaske, 28 F.3d 1466, 1470 (8th Cir. 1994) (Baker).
Disregarding these tribal regulations, in August 1990 the
NDPSC ordered Otter Tail to stop servicing DTI. Both the
Tribe and Otter Tail brought suit against the NDPSC to
enjoin the state agency from interfering with the Tribe's
relationship with Otter Tail. See id.

The district court dismissed Otter Tail's suit on res
judicata grounds, finding that the North Dakota Supreme
Court's decision in Application of Otter Tail Power Co.
controlled Otter Tail's claims for relief. We reversed.
See Baker, 28 F.3d at 1475-76. On remand, we provided
extensive directions to the district court:

We remand with instructions that the district
court make detailed factual determinations and
set out its analysis in support of its legal
determinations. On remand, the district court
should consider the factors set out in Montana
v. United States, 450 U.S. 544 (1981), and its
progeny, to settle the core issue in this
dispute: whether the Tribe has the sovereign
authority to regulate electric services on the
Reservation, and whether the Tribe's authority
preempts that of NDPSC. The district court
should determine: first, whether Congress has
granted the Tribe the authority to regulate
electric services through the 1867 Treaty or
through subsequent congressional legislation;
second, if Congress has granted the Tribe

-7-
regulatory authority over electric services,
whether Congress later has abrogated that
regulatory authority; third, if Congress has
abrogated the Tribe's express regulatory
authority over electric services, whether the
Tribe retains inherent authority to regulate
electric services on the Reservation; fourth,
and finally, if the Tribe retains regulatory
authority over electric services, whether that
authority preempts NDPSC's authority.

-8-
Id. at 1476 (footnote omitted). See also id. at 1476-78
(detailing analysis to be conducted on remand by the
district court).

On remand, the district court held that the Tribe did
not have the exclusive authority to regulate the
provision of electrical services on the Reservation. See
Devils Lake, 896 F. Supp. at 961 ("The facts of this case
present no justification for the [Tribe's] exercise of
regulatory authority over the provision of electrical
service within the exterior boundaries of the
reservation. No showing has been made, and by inference
at least, can be made, that the health, welfare or safety
of any Tribal Member is in any way threatened under the
present system." (footnote omitted)). The district court
also held, however, "that where the service sought is to
a Tribal business located upon Trust land, the necessary
nexus between Tribal Interests and inherent sovereignty
is present." Id. The district court specifically
ordered:

1. That Otter Tail is entitled to summary
judgment on the issues between it and the North
Dakota Public Service Commission, to the effect
that the Tribe may by resolution or contract
determine who is to supply electrical service to
Tribal owned businesses located upon Indian
owned or trust lands, without regard to the rate
structure or other regulations of the North
Dakota Public Service Commission, and the Public
Service Commission is restrained from any
sanctions against Otter Tail, or any future
competitor, for providing such service. Nothing
herein shall limit the power or authority of the
North Dakota Public Service Commission except as
to such service, present or future.

-9-
2. That the North Dakota Public Service
Commission and utility parties are entitled to
judgment on the issue of the authority of the
Tribe to regulate the distribution of electrical
service within the exterior boundaries of the
reservation, except as specifically provided
above. The promulgation and enforcement of a
reservation wide utility regulation scheme,
without regard to land ownership, occupancy or
use is beyond the sovereign authority of the
tribe--under the fact specific situation present
here.

-10-
Id. at 961-62 (emphasis added).

Neither party appealed this decision. The Tribe did,
however, move the district court to modify its order. In
a subsequent order, filed April 3, 1995, the district
court denied this motion, stating:

Plaintiff's counsel has moved for a
modification of the judgment entered in this
file. The court granted summary judgment,
recognizing the sovereign authority of the Tribe
in certain limited situations where the
ownership and control of land coincided with the
operation of a tribal business or governmental
service.

In the motion, plaintiff asked that the
court extend the recognition of sovereign power
to authorize the Tribe to regulate the provision
of public utility type services to any usage by
a tribal member upon tribally owned or trust
lands. Although a logical extension of the
basis enunciated in the initial decision, the
broadening of the power to regulate to cover
individual tribal members living on trust land
goes beyond what the court views as the
necessary prerogative of sovereignty.

Order (Apr. 3, 1995) at 1-2, reprinted in Appellant's
App. at 36-37.

In the Fall of 1995, following the entrance of the
district court's orders, the Tribe asked Otter Tail to
provide electricity to several additional sites on trust
land. The Tribal Housing Authority (THA), a tribal
governmental agency which provides housing assistance,
requested Otter Tail to service certain accounts managed

-11-
or underwritten by the THA. These include the home of
Ms. Vivian Spotted Horse, a disabled tribal member who
has received extensive financial assistance from the THA
in moving, renovating, and heating her home.

In addition, the Tribe asked the Bureau of Indian
Affairs (BIA) to contract with Otter Tail to provide
electricity to the Four Winds School (School), a pre-
kindergarten

-12-
through twelfth grade primary and secondary education
institution built on trust lands. The buildings of the
school are owned by the BIA, which manages the School's
physical plant and leases the School to the Tribal school
board. The Tribal school board, which is a tribal
governmental agency, establishes the curricula for the
lower grades of the School. The School's ninth through
twelfth grade curricula are established by North Dakota
Independent School District No. 30 (ISD 30), a political
subdivision of the State of North Dakota. ISD 30
subleases part of the School from the Tribal school
district and operates a public high school on the site.3

Baker filed suit against Otter Tail in North Dakota
state court in 1996, seeking to enjoin Otter Tail from
servicing accounts on the Reservation which were not
specifically "tribal owned businesses located upon Indian
owned or trust lands." Compl. (Feb. 29, 1996) at 8, ¶ 21
(quotation omitted), reprinted in Appellant's App. at 46.
Baker also sought unspecified punitive damages from Otter
Tail. See id. Otter Tail removed the case to the
district court, and subsequently moved the district court
to dismiss the case without prejudice pending tribal
court adjudication.

3
On October 23, 1996, the Bureau of Indian Affairs (BIA), pursuant to a contract
with the Tribe, agreed to pay $37,500 annually for the provision of electrical services
for the School. See Contract (Oct. 23, 1996); reprinted in Appellant's Supp. App. at
5. On November 13, 1996, the Tribe accepted a bid by Otter Tail to subcontract the
provision of electrical services for the School. See Spirit Lake Sioux Tribe Resolution
No. A05-97-053 (Nov. 13, 1996); reprinted in Appellant's Reply Add. at 1.

-13-
 The district court denied Otter Tail's motion, but
dismissed the case for lack of subject matter
jurisdiction. The district court stated:

Baker Electric is once again threatened by
the encroachment of Otter Tail upon the
distribution area which Baker considers to be
protected by the North Dakota Territorial
Integrity law. As in previous proceedings,
Otter Tail relies upon permission granted by the
Devils

-14-
Lake Sioux Tribal Government, arguing that
Tribal Sovereignty trumps the jurisdiction of
the North Dakota Public Service Commission.

Baker Electric seeks to have the latest
foray thwarted through the issuance of
injunctive relief, through an order prohibiting
Otter Tail from furnishing power to the "Four
Winds School" and also to five elderly housing
units with individual meters and individual
payment responsibilities.

In a previous action, this court attempted
to define those tribal activities so essential
to the exercise of tribal sovereignty so as to
justify the right of the tribe to select a
supplier of electrical power in apparent
violation of the orders of the [NDPSC]. In
[Devils Lake,] that definition was posed as "the
operation of tribal owned businesses located
upon Indian owned or trust lands." [896 F.
Supp. at 961]. That opinion was issued after
remand from the circuit court of appeals and was
not appealed further.

Otter Tail argues that it must then follow
that a school building, owned by the federal
government, with primary grades under the
control of the Tribal Government and high school
grades under the control of a school board
organized and elected under North Dakota State
Law, with tax assessing authority, located upon
trust lands, must fall within the definition set
out above. It further contends that any
reservation resident receiving tribal housing
assistance in any form, living on [I]ndian owned
or trust lands, is equally within the sovereign
umbrella of Tribal authority.
Otter Tail further argues that the issue
should be decided first in Tribal Court and that
this court should not exercise jurisdiction

-15-
until after Tribal Court has determined the
width and breadth of tribal sovereignty. The
tribe is not a party to this proceeding and did
confer jurisdiction over this issue upon this
court in the previous proceeding by suing in
this court. Baker claims it is doing nothing
more than asking this court to cause enforcement
of the previous final judgment.

I see no choice available. Otter Tail may
indeed be ultimately correct in the spin which
it seeks to impart to the court's definition,
and

-16-
 very probably the protection afforded the
cooperatives through the territorial integrity
act will soon vanish with the gradual
legislative deregulation of the electric
generation and distribution industry. At this
moment however, the previously articulated
definition is the one I must follow, and, as
pure dicta, under it Baker is entitled to the
protection it seeks.

This court, however, is not the [NDPSC] and
has no interest in attempting to usurp the
regulatory authority of the [NDPSC].
Application of the territorial integrity law,
even with the complications of tribal
sovereignty, is the province of the [NDPSC]. I
sympathize with Baker's attempt to get the court
to enforce the previous ruling, but I do not
believe jurisdiction is present.

The application for a preliminary injunction
is denied and the action is ordered dismissed
for want of subject matter jurisdiction.

Mem. & Order (July 9, 1996) at 1-3, reprinted in
Appellant's App. at 113-15.

Baker sought a modification of this order, and Otter
Tail requested that the district court explain the basis
for its decision. In a subsequent order, the district
court modified its July 9 memorandum and order and
remanded the case to the North Dakota state court,
stating:

This action was originally filed by Baker
Electric in state court. Otter Tail Power
Company removed the matter to Federal Court.
Baker Electric is correct in pointing out that

-17-
the order appears to dismiss the original state
court action. This was not the intent of the
Court. The arguments of Otter Tail Power have
been reviewed. The Court is not persuaded to
change its original order and believes the
"basis of its decision" is reasonably
discernable.

-18-
Order (Sept. 5, 1996) at 1-2, reprinted in Appellant's
App. at 138-39. Otter Tail now appeals.4

II.

4
In addition to this appeal, Otter Tail has filed with this Court a duplicative
petition for a writ of mandamus, praying for the same relief as in Otter Tail's appeal.
This Court has recently held that a challenge to a district court's remand of a removed
case back to state court on the ground of lack of subject matter jurisdiction is properly
raised on appeal. See Gaming Corp. of America v. Dorsey & Whitney, 88 F.3d 536,
542 (8th Cir. 1996). Accordingly, we shall consider the merits of Otter Tail's appeal,
and we shall dismiss Otter Tail's petition for a writ of mandamus.

-19-
 We review the district court's remand of a removed
case for lack of subject matter jurisdiction de novo.
See Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536,
542 (8th Cir. 1996).5 Upon review, we conclude that the
district court erred in

5
28 U.S.C. § 1447 (1994) limits this Court's jurisdiction over certain remand
orders by district courts in removed cases. Section 1447 provides, in relevant part:

(c) A motion to remand the case on the basis of any defect in removal
procedure must be made within 30 days after the filing of the notice of
removal under section 1446(a). If at any time before final judgment it
appears that the district court lacks subject matter jurisdiction, the case
shall be remanded....

(d) An order remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise, except that an order
remanding a case to the State court from which it was removed pursuant
to section 1443 of this title shall be reviewable by appeal or otherwise.

Although these provisions appear to limit this Court's jurisdiction in the instant case,
we have explained that:

[Section 1447's] broadly stated restriction has been construed narrowly,
however, and the Supreme Court has explained that only cases remanded
under 28 U.S.C. § 1447(c) are subject to this nonreviewability provision.
Quackenbush v. Allstate Insurance Company, 116 S. Ct. 1712, 1718,
1720-21 (1996); Thermtron Products, Inc. v. Hermansdorfer, 423 U.S.
336, 346 (1976).

Gaming Corp., 88 F.3d at 541 (footnote omitted). Because "[t]his case was not
remanded under 28 U.S.C. § 1447(c), . . . § 1447(d) does not bar review by an
appellate court." Id.

-20-
remanding this matter to the state court.

"The propriety of removal to federal court depends on
whether the claim comes within the scope of the federal
court's subject matter jurisdiction." Peters v. Union
Pacific R.R. Co., 80 F.3d 257, 260 (8th Cir. 1996)
(citing 28 U.S.C. § 1441(b)). A
case is properly removed to the federal court "only if it
could have been brought in federal court originally."
Id.

The district court has "original jurisdiction of all
civil actions arising under the Constitution, laws, or
treaties of the United States." See 28 U.S.C. § 1331
(1994). A case presenting a federal question is,
therefore, properly removable to the district court. See
28 U.S.C. § 1441(b) ("Any civil action of which the
district courts have original jurisdiction founded on a
claim or right arising under the Constitution, treaties
or laws of the United States shall be removable without
regard to the citizenship or residence of the parties. .
. . "). Once a case is properly removed to a district
court, the "district court has no discretion to remand a
claim that states a federal question." Gaming Corp., 88
F.3d at 542. "The existence of a federal question is an
issue of law which we review de novo." Id.

"A federal question is raised in those cases in which
a well-pleaded complaint establishes either that federal
law creates the cause of action or that the plaintiff's
right

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to relief necessarily depends on resolution of a
substantial question of federal law." Peters, 80 F.3d at
260 (quotations and citation omitted). This well-pleaded
complaint rule
requires that a federal cause of action must be
stated on the face of the complaint before the
defendant may remove the action based on federal
question jurisdiction. A federal defense . . .
does not give the defendant the right to remove
to federal court.

Gaming Corp., 88 F.3d at 542-43 (citation omitted).
However, "[a] plaintiff's characterization of a claim as
based solely on state law is not dispositive of whether
federal question jurisdiction exists." Peters, 80 F.3d
at 260.

In its complaint, Baker challenges Otter Tail's right
to supply electrical services to certain tribal
operations without the benefit of a Certificate issued by
the NDPSC. See Compl. at 8, ¶ 21 (Mar. 4, 1993),
reprinted in Appellant's App. at 46. After recounting
the history of the litigation surrounding the delivery of
electrical services to the Reservation, Baker's complaint
specifically references the district court's prior
decision in this matter. See id. at 4, ¶ 10, reprinted
in Appellant's App. at 42. After providing its
interpretation of the district court's prior holding, id.
("The Court ruled that the State's regulatory authority
was superseded only in those cases involving the 'supply
of electrical service to tribal owned businesses located
upon Indian owned or trust lands.'" (citation omitted)
(emphasis added)), Baker's complaint alleges that Otter
Tail is servicing accounts that "are not 'tribally owned

-22-
businesses[,]' but, rather, are accounts directly within
the scope" of the NDPSC's authority. Id. at 6, ¶ 17,
reprinted in Appellant's App. at 44 (emphasis in
original). Baker's request for injunctive relief is
specifically premised on this alleged deviation by Otter
Tail from the terms of the district court's previous
order. See id. at 8, ¶ 21, reprinted in Appellant's App.
at 21.

To understand Baker's complaint, therefore, it is
necessary to examine the district court's prior order.
In reaching the holding upon which Baker relies, the
district court,

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pursuant to this Court's directive, explicitly analyzed
the effects of a United States treaty, various federal
statutes, and the federal common law of inherent tribal
sovereignty on the existence and extent of the Tribe's
authority, and the NDPSC's authority to regulate the
provision of electrical services on the Reservation. See
Devils Lake, 896 F. Supp. at 960-61. The district court
ultimately held that, while the Tribe did not have the
authority to regulate all of the electrical service
provisions on the Reservation, neither was the Tribe
wholly without regulatory authority. See id. at 961.
Conversely, the district court held that the NDPSC had
some regulatory authority over the Reservation, but that
its authority was not complete. Id. In reaching these
conclusions, the district court noted that its attempt
"to draw the line between permissible and non-permissible
exercises of Tribal powers . . . is somewhat of a
philosophical exercise." Id. Baker's instant complaint,
which "is nothing more than an action to enforce [the
district court's] prior judgment in Devils Lake Sioux
Tribe v. North Dakota Public Service Commission, 896 F.
Supp. [955] ([D.]N.D. 1995)," Baker Br. in Opp'n to Mot.
to Dismiss at 2 (May 3, 1996), reprinted in Appellant's
App. at 101, is therefore an attempt to more precisely
"draw the line" of Tribal regulatory authority.
Because "'tribal sovereignty is dependent on, and
subordinate to, only the Federal Government, not the
States,'" Baker, 28 F.3d at 1478 (quoting California v.
Cabazon Bank of Mission Indians, 480 U.S. 202, 207 (1987)
(other quotations omitted)), the extent of an Indian
Tribe's authority to regulate nonmembers on a
reservation, whether the source of that authority is
based on treaty rights, acts of Congress, or inherent

-24-
tribal sovereignty, is manifestly a federal question.
See National Farmers Union Ins. Cos. v. Crow Tribe, 471
U.S. 845, 852 (1985) ("The question whether an Indian
tribe retains the power to compel a non-indian property
owner to submit to the civil jurisdiction of a tribal
court is one that must be answered by reference to
federal law and is a 'federal question' under § 1331."
(footnote omitted)); see also Brendale v. Confederated
Yakima Indian Nation, 492 U.S. 408, 422-32 (1989)
(plurality opinion) (analyzing

-25-
limitations on Indian Tribe's regulatory authority in
light of United States treaties, federal statutes, and
federal common law).

Because Baker's complaint necessarily presents a
federal question, the district court had subject matter
jurisdiction in the instant case. See 28 U.S.C. § 1331.
Because the district court had subject matter
jurisdiction, the complaint was properly removed to the
district court. See 28 U.S.C. § 1441(b). Accordingly,
the district court erred in remanding this matter back to
the state court, and we reverse. See Gaming Corp., 88
F.3d at 542 ("A district court has no discretion to
remand a claim that states a federal question.").6

III.

Baker acknowledges that the district court has
subject matter jurisdiction in this case. See Appellee's
Br. at 21. Baker contends, however, that we should
construe the district court's remand in this case as an

6
We note that, beyond the jurisdictional grant of 28 U.S.C. § 1331, the district
court may well have jurisdiction over this matter on the basis of diversity. See 28
U.S.C.A. § 1332 (West. Supp. 1997), 28 U.S.C. § 1441(b) (case may be removed to
federal court where there is complete diversity of parties and amount in controversy
exceeds $75,000); see also Appellee's Br. at 21 ("Baker would admit diversity
jurisdiction to exist which would allow removal . . . ."). In addition, because the
plaintiff's complaint is essentially an attempt to enforce a prior order of the district
court, see Baker Br. in Opp'n to Mot. to Dismiss at 2 (May 3, 1996), reprinted in
Appellant's App. at 101, the district court retained sufficient jurisdiction to ensure the
effectiveness of its continuing order. See Picon v. Morris, 933 F.2d 660, 662 (8th Cir.
1991) ("When a court issues an injunction, it automatically retains jurisdiction to
enforce it." (quotations, citation, and alterations omitted)).

-26-
exercise of abstention, and that we should affirm the
district court's decision to abstain in this matter.

-27-
 "[A]bstention is an extraordinary and narrow
exception to the virtually unflagging obligation of
federal courts to exercise the jurisdiction given them."
In re Burns & Wilcox, Ltd., 54 F.3d 475, 477 (8th Cir.
1995) (quotations omitted). "Determining when to invoke
this narrow exception involves considerations of
federalism, comity, and judicial administration explored
in the Supreme Court's many and varied abstention cases."
Wolfson v. Mutual Benefit Life Ins. Co., 51 F.3d 141, 144
(8th Cir. 1995).7

The United States Supreme Court has identified
several circumstances in which "the considerations of
federalism, comity, and judicial administration . . .
may justify overriding the strong presumption in favor of
exercising federal jurisdiction." Wolfson, 51 F.3d at
145. Those branches of abstention relied on by Baker
include Railroad Comm'n of Tex. v. Pullman Co., 312 U.S.
496 (1941) (federal court may abstain where controlling
state law is unclear and a state court's clarification of
state law could made a federal court's federal
constitutional decision unnecessary); Younger v. Harris,
401 U.S. 37 (1971) (federal court must abstain from
enjoining state court criminal proceedings); and Burford
v. Sun Oil Co., 319 U.S. 315 (1943) (federal court may

7
In Quackenbush v. Allstate Ins. Co., 116 S. Ct. 1712 (1996), the United States
Supreme Court limited the holdings of both In re Burns & Wilcox and Wolfson on
other grounds. The Quackenbush Court disagreed with the In re Burns & Wilcox
court's conclusion that abstention-based remand orders are not immediately appealable,
see 116 S. Ct. at 1720, and modified the Wolfson Court's conclusion that Burford
abstention is available in an action for damages. See id. at 1728.

-28-
abstain in deference to complex state administrative
procedure).

Baker's suit against Otter Tail raises important
questions of federal law requiring interpretation of
treaties, federal statutes, and the federal common law of
inherent tribal sovereignty. Cf. Baker, 28 F.3d at 1476.
Baker's suit does not, however, raise any issues of
constitutional law. Accordingly, "Pullman abstention
does not apply because no federal constitutional issues
have been raised." In re Burns & Wilcox, 54 F.3d at

-29-
478. Nor could the district court abstain from assuming
jurisdiction over this matter on the basis of Younger.
"Younger abstention is inapplicable in the absence of an
ongoing state proceeding," id., and there is no ongoing
state proceeding in the instant case.

Finally, we conclude that Burford abstention, although the
most likely of the candidates offered by Baker, see id. (''Burford abstention applies
when a state has established a complex regulatory scheme supervised by state courts
and serving important state interests, and when resolution of the case demands
specialized knowledge and the application of complicated state laws." (quotations and
citations omitted)), is also inapplicable. The premise of
Burford abstention is that "a federal court should
abstain when the action before it involves matters of
state law best left to the state alone." Middle South
Energy, Inc. v. Arkansas Pub. Serv. Comm'n, 772 F.2d 404,
417 (8th Cir. 1985); see also Quackenbush, 116 S. Ct. at
1726 ("Ultimately, what is at stake is a federal court's
decision, based on a careful consideration of the federal
interests in retaining jurisdiction over the dispute and
the competing concern for the independence of state
action, that the State's interests are paramount and that
a dispute would best be adjudicated in a state forum."
(quotations and citation omitted)).

The question in the instant case is not what North
Dakota's regulatory law requires, but whether "federal
law . . . makes the proceeding or regulation at issue
beyond the state's authority." Middle South, 772 F.2d at
417. In this situation, "[t]here is no concern with
protecting a legitimate state regulatory scheme, and the
question becomes one of basic federal supremacy, which

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does not turn on local factors or local expertise." Id.
(citations omitted). Accordingly, we do not believe that
there is any basis for construing the district court's
decision to remand for the lack of subject matter
jurisdiction as a decision to abstain.8

8
In addition, the district court's dismissal of this matter for lack of subject matter
jurisdiction is antithetical to a decision to abstain, which implicitly acknowledges the
existence of jurisdiction. See Colorado River Water Cons. Dist. v. United States, 424
U.S. 800, 813 (1976) (abstention is a decision of the district court to "decline to
exercise or postpone the exercise of its jurisdiction" (quotations and citation omitted)).
We believe that the district court was capable of enunciating the basis of its decision
to remand, and we do not choose to interpret the district court's holding contrary to the
explicit terms of that holding.

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 IV.

For the foregoing reasons, we reverse the district
court's dismissal of this action for lack of subject
matter jurisdiction. We remand this matter back to the
district court for a decision on the merits of Baker's
complaint against Otter Tail.9

9
In Devils Lake, the district court held that, while the Tribe did not have the
exclusive authority to regulate the distribution of electricity on the Reservation, it did
have exclusive authority to "determine who is to supply electrical service to Tribal
owned businesses located upon Indian owned or trust lands . . . ." 896 F. Supp. at 961.
In a subsequent order, the district court declined to "extend the recognition of sovereign
power to authorize the Tribe to regulate the provision of public utility type services to
any usage by a tribal member upon tribally owned or trust lands." Order at 2 (April 3,
1995), reprinted in Appellant's App. at 37. The instant case presents the unsettled
question of whether the Tribe, or North Dakota, has the authority to regulate the
provision of electrical services to certain Tribal operations involving the delivery of
governmental services.

In its decision dismissing this case, the district court stated, in "pure dicta," that
"Baker is entitled to the protection it seeks." Mem. Op. at 3 (July 9, 1996), reprinted
in Appellant's App. at 115. This statement seems at odds with the court's declaration
in the same memorandum opinion that "Otter Tail may indeed be ultimately correct in
the spin which it seeks to impart to the" district court's previous determination. Id. at
2-3, reprinted in Appellant's App. at 114-15. We presume that these contradictory
statements were mere musings, and were not intended to telegraph a premature decision
in this matter. If we were similarly permitted to muse, also as a matter of pure dicta,
we would note that the ability of an Indian Tribe to generate revenues is vital to Tribal
interests--and thus an area of heightened sovereignty--because such revenues are
necessary for the provision of Tribal services. Cf. Merrion v. Jicarilla Apache Tribe,
455 U.S. 130, 137 (1982) ("The power to tax is an essential attribute of Indian
sovereignty because it is a necessary instrument of self-government and territorial
management. The power enables a tribal government to raise revenues for its essential
services."). Baker's apparent argument that an Indian Tribe would have a greater
sovereignty interest in exclusively regulating the provision of electrical services to a

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 A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

Tribal business--which generates income which allows the distribution of Tribal
services--than to a Tribal housing agency--which directly provides Tribal services--
therefore strikes us as somewhat counterintuitive.

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