FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VALINDA JO ELLIOTT,
Plaintiff-Appellant,
v. No. 07-15041
WHITE MOUNTAIN APACHE TRIBAL D.C. No.
CV-05-04240-MHM
COURT; HONORABLE JOHN DOE
TRIBAL JUDGE; and WHITE OPINION
MOUNTAIN APACHE TRIBE,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Argued October 22, 2008
Resubmitted May 7, 2009
San Francisco, California
Filed May 14, 2009
Before: Sidney R. Thomas and Susan P. Graber,
Circuit Judges, and Stephen G. Larson,* District Judge.
Opinion by Judge Graber
*The Honorable Stephen G. Larson, United States District Judge for the
Central District of California, sitting by designation.
5819
ELLIOTT v. WHITE MOUNTAIN 5821
COUNSEL
Cari M. McConeghy-Harris, Law Offices of David Michael
Cantor, P.C., Tempe, Arizona, for the plaintiff-appellant.
5822 ELLIOTT v. WHITE MOUNTAIN
Robert C. Brauchi, Tucson, Arizona, and Alexander B. Rit-
chie, White Mountain Apache Tribe, Whiteriver, Arizona, for
the defendants-appellees.
Joe B. Sparks, The Sparks Law Firm, P.C., Scottsdale, Ari-
zona, for the amicus curiae.
OPINION
GRABER, Circuit Judge:
A tribal court’s jurisdiction over nonmembers of the tribe
is limited. As a matter of comity, however, federal courts gen-
erally decline to entertain challenges to a tribal court’s juris-
diction until the tribal court has had a full opportunity to rule
on its own jurisdiction. Finding that no exception to that gen-
eral 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 understand-
able effort to attract the helicopter occupants’ attention, Plain-
tiff set a small signal fire.
ELLIOTT v. WHITE MOUNTAIN 5823
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 Plain-
tiff.1 The tribe, however, brought a civil action against Plain-
tiff 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 juris-
diction under the relevant United States Supreme Court cases.
Plaintiff sought interlocutory appellate review of that deci-
sion 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 dis-
missed 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 Defen-
1
The United States Attorney’s Office did prosecute Leonard Gregg, a
part-time forest fire fighter who set the Rodeo fire in an effort to seek
work. He was convicted of arson, sentenced to 120 months of imprison-
ment, and ordered to pay more than $27 million in restitution.
2
For simplicity, we refer to these sources of tribal law collectively as
“tribal regulations.”
5824 ELLIOTT v. WHITE MOUNTAIN
dants 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 dis-
trict court dismissed the action without prejudice to its refiling
after Plaintiff has exhausted her tribal court remedies. Plain-
tiff 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. Defen-
dants argue that the district court’s order and subsequent judg-
ment are not “final” for purposes of § 1291 because those
documents state that the action is dismissed “without preju-
dice.” According to Defendants, the present decision is not
“final” because Plaintiff eventually could refile after exhaust-
ing her tribal court remedies. We reject Defendants’ hyper-
technical reading of § 1291.
[1] 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
3
A search for a blanket rule among our own cases on whether dismissals
without prejudice are “final” leads one into this “twilight zone,” as we
ELLIOTT v. WHITE MOUNTAIN 5825
Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152 (1964) (quot-
ing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546
(1949)). In turn, we have given the following practical con-
struction: “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 omit-
ted).
[2] 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 sepa-
rate 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.
[3] The first prong of the test, which is separate from the
district court’s intent, is whether there has been a “full adjudi-
cation 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.
have given conclusory and somewhat contradictory statements on the sub-
ject. Compare, e.g., Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1085
(9th Cir. 2003) (“A dismissal of an action without prejudice is a final
appealable order.”), with Wakefield v. Thompson, 177 F.3d 1160, 1162
(9th Cir. 1999) (“Although there are exceptions to the rule, dismissals with
prejudice generally constitute final orders, while dismissals without preju-
dice generally do not.”).
5826 ELLIOTT v. WHITE MOUNTAIN
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 Defen-
dants, 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 final-
ity requirement. That guidance undermines Defendants’ tech-
nical argument. We therefore turn to the merits of this appeal.
B. Exhaustion of Tribal Court Remedies
[4] “Non-Indians may bring a federal common law cause of
action under 28 U.S.C. § 1331 to challenge tribal court juris-
diction.” Boozer, 381 F.3d at 934 (citing Nat’l Farmers Union
Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 850-53
(1985)). But a plaintiff must first exhaust tribal court reme-
dies. See, e.g., Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 19
(1987); Nat’l Farmers, 471 U.S. at 856-57; see also Atwood
v. Fort Peck Tribal Court Assiniboine, 513 F.3d 943, 948 (9th
Cir. 2008) (applying the doctrine).
[5] Plaintiff acknowledges the doctrine generally but argues
that it does not apply for two reasons. First, she argues that
ELLIOTT v. WHITE MOUNTAIN 5827
she already exhausted her tribal court remedies. In the alterna-
tive, she argues that she need not exhaust tribal court reme-
dies 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 com-
plete 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: “Although the Blackfeet Tribal Code estab-
lishes a Court of Appeals, see ch. 11, § 1, it does not allow
interlocutory appeals from jurisdictional rulings. Accordingly,
appellate review of the Tribal Court’s jurisdiction can occur
only after a decision on the merits.” 480 U.S. at 12. The Court
in Iowa Mutual held that
[t]he federal policy of promoting tribal self-
government encompasses the development of the
entire tribal court system, including appellate courts.
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. In this case, the Tribal Court has made an ini-
tial determination that it has jurisdiction over the
insurance dispute, but Iowa Mutual has not yet
obtained appellate review, as provided by the Tribal
Code, ch. 1, § 5. Until appellate review is complete,
the Blackfeet Tribal Courts have not had a full
opportunity to evaluate the claim and federal courts
should not intervene.
Id. at 16-17.
5828 ELLIOTT v. WHITE MOUNTAIN
[6] Plaintiff makes policy arguments as to why the Iowa
Mutual rule should be different, but she does not, and cannot,
cite a case standing for the proposition that the Iowa Mutual
rule has been overruled.4 We therefore hold that Plaintiff has
not exhausted her tribal court remedies.
2. Exceptions to Exhaustion of Tribal Court Remedies
[7] The Supreme Court has outlined four exceptions to the
exhaustion rule: (1) when an assertion of tribal court jurisdic-
tion is “motivated by a desire to harass or is conducted in bad
faith"; (2) when the tribal court action is “patently violative
of express jurisdictional prohibitions"; (3) when “exhaustion
would be futile because of the lack of an adequate opportunity
to challenge the [tribal] court’s jurisdiction"; and (4) when it
is “plain” that tribal court jurisdiction is lacking, so that the
exhaustion requirement “would serve no purpose other than
delay.” Nevada v. Hicks, 533 U.S. 353, 369 (2001) (internal
quotation marks omitted).
Plaintiff makes brief arguments concerning the first three
exceptions, none of which is persuasive. The district court
correctly held that there is no evidence of bad faith or harass-
ment in the record. Plaintiff has failed to identify—and the
record does not reveal—any “express jurisdictional prohibi-
tion[ ]” against tribal court jurisdiction. And, as discussed
above, Plaintiff will have an adequate opportunity to chal-
lenge the tribal court’s jurisdiction in the tribal appellate
4
This court recently held that, if the tribal appellate court has a discre-
tionary interlocutory appeals process, that is sufficient for purposes of
exhaustion. See Ford Motor Co. v. Todecheene, 488 F.3d 1215, 1217 (9th
Cir. 2007) (order) (“Ford will be deemed to have exhausted its tribal reme-
dies once the Navajo Nation Supreme Court either resolves the jurisdic-
tional issue or denies a petition for discretionary interlocutory review
. . . .” ). That holding has no effect on the situation here, because Iowa
Mutual controls where the tribal court system lacks any jurisdiction over
interlocutory appeals.
ELLIOTT v. WHITE MOUNTAIN 5829
court; she simply must wait until trial is complete. Exhaustion
therefore is not “futile.”
[8] We focus on the fourth exception: whether it is “plain”
that the tribal court lacks jurisdiction. If “jurisdiction is ‘col-
orable’ or ‘plausible,’ ” then the exception does not apply and
exhaustion of tribal court remedies is required. Atwood, 513
F.3d at 948.
[9] In their unique relationship with the United States,
Indian tribes retain a certain amount of “inherent sovereign
power.” Montana v. United States, 450 U.S. 544, 565 (1981).
But the Supreme Court has “[s]tress[ed] that Indian tribes
cannot exercise power inconsistent with their diminished sta-
tus as sovereigns.” Id. For example, tribes cannot exercise
their inherent criminal jurisdiction over nonmembers. Oli-
phant v. Suquamish Indian Tribe, 435 U.S. 191, 212 (1978),
superseded by statute on other grounds as stated in United
States v. Lara, 541 U.S. 193, 205-07 (2004). The question is
murkier with respect to the exercise of a tribe’s inherent civil
jurisdiction over nonmembers. Where, as here, the nonmem-
ber is a defendant in the tribal court action, “whether tribal
courts may exercise jurisdiction over a nonmember defendant
may turn on how the claims are related to tribal lands.” Smith
v. Salish Kootenai Coll., 434 F.3d 1127, 1132 (9th Cir. 2006)
(en banc).
We begin our analysis with Montana, “the pathmarking
case concerning tribal civil authority over nonmembers.”
Strate v. A-1 Contractors, 520 U.S. 438, 445 (1997). In Mon-
tana, the Supreme Court addressed whether a tribe may regu-
late hunting and fishing by nonmembers on reservation lands
owned in fee by nonmembers (“fee lands”). 450 U.S. at 557.
The Court held that civil regulation of nonmembers on fee
lands is governed by “the general proposition that the inherent
sovereign powers of an Indian tribe do not extend to the activ-
ities of nonmembers of the tribe.” Id. at 565. But it described
two exceptions to that general rule:
5830 ELLIOTT v. WHITE MOUNTAIN
To be sure, Indian tribes retain inherent sovereign
power to exercise some forms of civil jurisdiction
over non-Indians on their reservations, even on non-
Indian fee lands. A tribe may regulate, through taxa-
tion, licensing, or other means, the activities of non-
members who enter consensual relationships with
the tribe or its members, through commercial deal-
ing, contracts, leases, or other arrangements. A tribe
may also retain inherent power to exercise civil
authority over the conduct of non-Indians on fee
lands within its reservation when that conduct threat-
ens or has some direct effect on the political integ-
rity, the economic security, or the health or welfare
of the tribe.
Id. at 565-66 (citations omitted).
The Court held that neither exception applied to hunting
and fishing regulations concerning fee lands. Id. at 566. But
the Court was clear that such regulation is permissible con-
cerning lands belonging to the tribe:
The Court of Appeals held that the Tribe may pro-
hibit nonmembers from hunting or fishing on land
belonging to the Tribe . . . and with this holding we
can readily agree. We also agree with the Court of
Appeals that if the Tribe permits nonmembers to fish
or hunt on such lands, it may condition their entry by
charging a fee or establishing bag and creel limits.
Id. at 557 (citation omitted).
Ownership status of the land also played an important role
in the Supreme Court’s decision in Strate. There, the Court
held that tribal courts lack jurisdiction over claims against
nonmembers arising out of traffic accidents on a state high-
way that passes through reservation lands. 520 U.S. at 442.
Key to the Court’s analysis was its holding that the short
ELLIOTT v. WHITE MOUNTAIN 5831
stretch of state highway that passed over reservation lands
was “equivalent, for nonmember governance purposes, to
alienated, non-Indian land.” Id. at 454 (footnote omitted). The
Court noted “that tribes retain considerable control over non-
member conduct on tribal land,” id., and expressly declined
to consider whether tribal courts would have jurisdiction over
accidents occurring on a tribal road, id. at 442.
Ownership status of the land is not necessarily dispositive.
In Hicks, the Supreme Court addressed whether a tribe “can
regulate state wardens executing a search warrant for evi-
dence of an off-reservation crime.” 533 U.S. at 358. The
Court rejected the argument that the tribe has regulatory juris-
diction over nonmembers on reservation lands owned by the
tribe simply because of that ownership status: “[T]he exis-
tence of tribal ownership is not alone enough to support regu-
latory jurisdiction over nonmembers.” Id. at 360. The Court
held that the same principles underlying the two Montana
exceptions also applied to civil regulation of nonmembers on
lands owned by the tribe. Id. The Court then balanced the
tribe’s interest in regulating activity by state wardens with the
state’s interest in investigating off-reservation crimes and held
that the state’s interest outweighed that of the tribe. Id. at 361-
65.
In responding to the concurrence’s argument that tribal
ownership of the land should have played a larger role in the
analysis, the majority stated: “[W]e acknowledge that tribal
ownership is a factor in the Montana analysis, and a factor
significant enough that it may sometimes be dispositive. We
simply do not find it dispositive in the present case, when
weighed against the State’s interest in pursuing off-
reservation violations of its laws.” Id. at 370 (alteration, cita-
tion, and internal quotation marks omitted).
We have held repeatedly that determining the scope of
tribal court jurisdiction is not an easy task. See, e.g., Smith,
434 F.3d at 1130 (“Sixteen years ago, we observed that
5832 ELLIOTT v. WHITE MOUNTAIN
‘[t]here is no simple test for determining whether tribal court
jurisdiction exists.’ The statement is no less true today.”
(alteration in original) (quoting Stock W., Inc. v. Confederated
Tribes of the Colville Reservation, 873 F.2d 1221, 1228 (9th
Cir. 1989))). Here, however, we need not make a definitive
determination of whether tribal court jurisdiction exists; we
must decide only whether jurisdiction is plausible. Atwood,
513 F.3d at 948. We conclude that tribal court jurisdiction is
plausible here.
[10] The tribe seeks to enforce its regulations that prohibit,
among other things, trespassing onto tribal lands, setting a fire
without a permit on tribal lands, and destroying natural
resources on tribal lands. The Supreme Court has strongly
suggested that a tribe may regulate nonmembers’ conduct on
tribal lands to the extent that the tribe can “ ‘assert a landown-
er’s right to occupy and exclude.’ ” Hicks, 533 U.S. at 359
(quoting Strate, 520 U.S. at 456). The tribal regulations at
issue stem from the tribe’s “landowner’s right to occupy and
exclude.” Trespass regulations plainly concern a property
owner’s right to exclude, and regulations prohibiting destruc-
tion of natural resources and requiring a fire permit are related
to an owner’s right to occupy. See Hicks, 533 U.S. at 359 (dis-
cussing a landowner’s right to occupy and exclude); Strate,
520 U.S. at 455-56 (same). Accordingly, the tribe’s ownership
of the land may be dispositive here. See Hicks, 533 U.S. at
370 (“[T]ribal ownership is a factor in the Montana analysis,
and a factor significant enough that it may sometimes be dis-
positive.” (alteration and internal quotation marks omitted));
id. at 359 (suggesting strongly that regulations concerning a
“landowner’s right to occupy and exclude” are permissible
against nonmembers).
We reject Plaintiff’s argument that the Court’s holding in
Hicks forecloses tribal court jurisdiction. The Court did hold,
in Hicks, that tribal courts lacked jurisdiction notwithstanding
tribal ownership of the land. But the crux of the Court’s rea-
soning was that the state’s strong interest in executing its
ELLIOTT v. WHITE MOUNTAIN 5833
criminal warrants concerning an off-reservation crime out-
weighed the tribe’s interest in regulating the activities of
“state wardens.” Id. at 370. The Court expressly stated that its
“holding in this case is limited to the question of tribal-court
jurisdiction over state officers enforcing state law. We leave
open the question of tribal-court jurisdiction over nonmember
defendants in general.” Id. at 358 n.2. Here, of course, Plain-
tiff cannot assert any state interest to be balanced against the
tribe’s strong interest in enforcing its regulations governing
trespass, prevention of forest fires, and preservation of its nat-
ural resources.
[11] Furthermore, the tribe makes a compelling argument
that the regulations at issue are intended to secure the tribe’s
political and economic well-being, particularly in light of the
result of the alleged violations of those regulations in this very
case: the destruction of millions of dollars of the tribe’s natu-
ral resources. See Montana, 450 U.S. at 566 (“A tribe may
also retain inherent power to exercise civil authority over the
conduct of non-Indians on fee lands within its reservation
when that conduct threatens or has some direct effect on the
political integrity, the economic security, or the health or wel-
fare of the tribe.”). Accordingly, even if we applied the two
Montana exceptions without regard to the Supreme Court’s
instruction that ownership of the land may be dispositive in
some cases, we reach the same conclusion: In the circum-
stances of this case, we cannot say that the tribal court plainly
lacks jurisdiction.5
5
It is an open question whether a tribe’s adjudicative authority is equal
to its regulatory authority. Hicks, 533 U.S. at 358. It is possible, therefore,
that the tribe may have authority to regulate a nonmember’s trespass and
destruction of natural resources yet lack authority to hale the nonmember
into tribal court. That possibility does not affect our conclusion that tribal
court jurisdiction is plausible. We need not, and do not, resolve the open
question whether tribal courts have jurisdiction to the same extent that a
tribe may regulate nonmember activity.
5834 ELLIOTT v. WHITE MOUNTAIN
CONCLUSION
We are sympathetic to Plaintiff’s concerns about defending
her actions in an unfamiliar court system. But, because tribal
court jurisdiction is plausible, principles of comity require us
to give the tribal courts a full opportunity to determine their
own jurisdiction in the first instance.
AFFIRMED.