dissenting:
Because the majority improvidently extends the National Farmers Union-LaPlante abstention doctrine far beyond the scope intended by the Supreme Court, and because the record is inadequate to determine whether defendant Taylor’s actions fall within the scope of tribal immunity, I respectfully dissent.
I
A
Talismanic invocation of tribal court jurisdiction is surely insufficient to mandate federal court abstention. Yet that is all that is present here. This is a tort action for alleged malpractice committed in Portland, Oregon. Neither party to this litigation is a member of the Colville Tribes, nor is even Native American. Indeed, the only connection to an Indian tribe is that the alleged tortfeasor, Taylor, was employed by a tribal corporation and was in Portland on his client’s business when he allegedly committed the tort. The majority would close the door to the federal court whenever a suit had any connection to a tribe, no matter how removed or remote. I simply cannot read National Farmers Union and LaPlante so expansively as to require federal court abstention in this situation.
There are two fundamentals of this case that the majority seems unwilling to accept. First, Stock West is alleging a tort, a negligent misrepresentation in the opinion letter. Stock West’s claim is not based on the contracts to build and operate the sawmill on the reservation. The sawmill contracts are a legal nullity and could not possibly form the basis of a cause of action; indeed, a tribal court has so held. See Confederated Tribes of the Colville Reservation v. Stock West Inc., 15 Indian L.Rptr. 6019 (Colville Tribal Ct. May 2, 1988).
Nor was the transaction underlying the opinion letter the sawmill contracts. In fact, the sawmill contracts had been executed one year earlier. Rather, the opinion letter was prepared in connection with the loan agreement, which was entered into in Portland. Stock West’s tort claim against Taylor stands independent of the sawmill contracts with the tribes.1
Second, the tort alleged by Stock West occurred hundreds of miles from the Col-ville Tribes’ reservation, in Portland, Oregon. The majority apparently believes that Stock West’s malpractice and misrepresentation claim may have arisen on the Colville reservation because the allegedly fraudulent opinion letter was researched and drafted on the reservation. I cannot agree. It is not malpractice to write a fraudulent letter and then discard it. Nor was there any misrepresentation until Taylor travelled to Portland, Oregon and delivered the opinion letter to Stock West at the loan closing. Under Oregon law, the delivery of the opinion letter is the tort. Rice v. McAlister, 268 Or. 125, 519 P.2d 1263, 1265 (1974). See also Heil v. Morrison Knudsen Corp., 863 F.2d 546, 550 (7th Cir.1988) (“[A] tort is not wrongful conduct in the air; the arrow must hit its mark.”). It is beyond peradventure, in my view, that the tort upon which Stock West’s action is based occurred in Portland, when the allegedly fraudulent legal opinion was presented to Stock West. See Cavalier Label Co. v. Polytam, Ltd., 687 F.Supp. 872, 879 (S.D.N.Y.1988) (“The tort of fraud is considered to be committed where the misrepresentation is uttered.”).
Because the cause of action alleged by Stock West did not arise on the Colville Tribes’ reservation, the Supreme Court cases announcing a doctrine of abstention for exhaustion of tribal remedies, National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985) and Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 *922(1987), and the cases in this circuit following them, simply do not apply here. In both National Farmers Union and LaPlante it was undisputed that the transaction or occurrence underlying the plaintiffs claim occurred within the boundaries of a reservation. To extend the extraordinary doctrine of abstention to a claim based on an occurrence that happened off the reservation is, in my view, unwarranted.
In National Farmers Union, the suit arose out of a motorcycle-pedestrian accident that occurred in a school parking lot “located on land owned by the State within the boundaries of the Crow Indian Reservation.” National Farmers Union, 471 U.S. at 847, 105 S.Ct. at 2449. The pedestrian sued the school and obtained a default judgment in tribal court. Id. at 847-48, 105 S.Ct. at 2449. The school (and its insurer) then sought a temporary restraining order in federal court to prevent the issuance of a writ of execution against school property. Id. Because the underlying incident occurred on the reservation, the existence of civil tribal court jurisdiction over the school and its insurer — non-Indian parties — seemed likely, and the Court held that the determination of whether jurisdiction existed “should be conducted in the first instance in the Tribal Court itself.” Id. at 856, 105 S.Ct. at 2454. Nowhere did the Court suggest that the bare assertion of tribal jurisdiction by one of the parties, even where the claim did not arise on the reservation, would be sufficient to require abstention by the district court.
Two years later, the Supreme Court revisited the tribal court abstention doctrine in LaPlante. There too, the Court pointed out that the cause of action was based on an accident that occurred “within the boundaries of the Reservation.” LaPlante, 480 U.S. at 11, 107 S.Ct. at 974. The Court extended the abstention doctrine of National Farmers Union, a federal question case, to matters arising under a district court’s diversity jurisdiction, id. at 16, 107 S.Ct. at 976, but again gave no indication that such doctrine would apply to actions that did not arise on the reservation.
This circuit too has always limited its application of the National Farmers Union-LaPlante abstention doctrine to causes of action that arose on an Indian reservation. See United States v. Plainbull, 957 F.2d 724, 725 (9th Cir.1992) (action for “trespass by [defendants’] livestock on tribal lands”); Crawford v. Genuine Parts Co., 947 F.2d 1405, 1406 (9th Cir.1991) (“action arose when an automobile accident occurred on ... the Blackfeet Indian Reservation”), cert. denied, — U.S. -, 112 S.Ct. 1174, 117 L.Ed.2d 419; Burlington Northern R.R. Co. v. Crow Tribal Council, 940 F.2d 1239, 1241 (9th Cir.1991) (action to challenge tribal ordinance that “established] ‘general duties’ for common carriers operating on the Crow Reservation”); Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1222 (9th Cir.1989) (action to compel arbitration of contract “to construct and later manage a sawmill on the Colville reservation”); White Mountain Apache Tribe v. Smith Plumbing Co., 856 F.2d 1301, 1303 (9th Cir.1988) (“The parties agree that all relevant subcontracts were entered into, and all relevant deliveries were made on the Fort Apache Indian Reservation.”); Wellman v. Chevron U.S.A, Inc., 815 F.2d 577, 578 (9th Cir.1987) (“suit ... concerning a contract with a non-Indian corporation for work on tribal lands”); A & A Concrete, Inc. v. White Mountain Apache Tribe, 781 F.2d 1411, 1416 (9th Cir.) (“undisputed that the transactions which form the bases for appellants’ claims occurred or were commenced on tribal territory”), cert. denied, 476 U.S. 1117, 106 S.Ct. 2008, 90 L.Ed.2d 659 (1986).
National Farmers Union-LaPlante abstention applies only to civil actions that arise on the reservation because a presumption arises that tribal courts have jurisdiction. “Tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty. Civil jurisdiction over such activities presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute.” LaPlante, 480 U.S. at 18, 107 S.Ct. at 977 (emphasis added) (internal citations omitted). Where *923the presumption of tribal jurisdiction is absent, abstention cannot be justified.
In my view, there can be no question that this suit arose off the reservation. Further, I disagree with the majority that a merely “colorable question” as to whether the suit is somehow connected to another transaction that did arise on the reservation can be sufficient to prevent a federal court from exercising its jurisdiction. Abstention comes at a high cost. It deprives the plaintiff of his statutory entitlement to choose a federal court as his forum. Moreover, it ordinarily delays the final resolution of the case, and increases the costs of litigation. See England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 418, 84 S.Ct. 461, 466, 11 L.Ed.2d 440 (1964) (acknowledging the “delay and expense to which application of the abstention doctrine inevitably gives rise”). “The Supreme Court has stated that the doctrine of abstention ‘is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.’ ” Plainbull, 957 F.2d at 727 (quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163 (1959)). The fact that there may be some question that Stock West’s suit may be remotely related to a previous transaction that did occur on the reservation cannot be sufficient to abrogate this duty.
B
That Taylor was employed by tribal corporations as attorney when he committed the alleged tort does not change the result. Taylor was not executing tribal policy when he rendered the opinion letter, but rather simply complying with subsection 4.2.18 of the loan agreement, which required the tribal corporations, as borrowers, to “deliver[ ] to [the] Bank the opinion of Borrower’s counsel.” Although Taylor was the senior attorney in the Reservation Attorney’s office, there is no evidence in the record that he participated in tribal governance or held a policy-making position in tribal government akin to the role an attorney general plays in state or federal government. Nor is Taylor even a member of the Colville Tribes.
In any event, Taylor is not being sued in his role as senior attorney in the Reservation Attorney’s office, or even as counsel to the tribal corporations. Taylor is being sued for violating his duties to third parties as a member of the Washington bar, and his attorney-client relationship with the tribal corporations is not at issue. The Colville Tribes are not a party to this suit. Stock West does not challenge tribal actions or policies, or seek damages from the Tribes. However this suit comes out, the Tribes cannot be liable to judgment.
Thus, the only connection between this suit and Taylor’s employer, the tribal corporations, is that Taylor was travelling on tribal corporation business when the tort allegedly was committed in downtown Portland, Oregon. Surely if Taylor had negligently hit someone with a Tribe-owned car in Portland while driving to his meeting, abstention would not be mandated (even if the Colville Tribal court asserted jurisdiction) if the injured party brought suit in federal court in Portland. The negligent tort alleged here is in substance no different.
Regardless of who his client is, Taylor has certain independent duties as a member of the state bar, and it is these duties he is alleged to have violated. The identity of Taylor’s employer or client is immaterial in an action of this kind since the alleged tort occurred off the reservation. Under these circumstances, National Farmers Union-LaPlante abstention simply does not apply.
II
The district court denied discovery on the question of Taylor’s alleged immunity. The issue is far from clear. “[W]hen tribal officials act in their official capacity and within the scope of their authority, they are immune.” Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269, 1271 (9th Cir.1991). Whether Taylor is a “tribal official,” and if so whether the ren*924dering of a negligent legal opinion as part of a commercial transaction is within his official capacity and the scope of his authority, cannot be determined on this record. I would remand for further discovery.
I cannot agree with the majority that the district court erred in even considering the question of sovereign immunity. While it cannot be gainsaid that tribal courts are best qualified to interpret tribal law, tribal official immunity is governed by federal law. Both before and after development of the National Farmers Union-LaPlante abstention doctrine, this court has had many occasions to consider whether tribal immunity extends to individual tribal officials. See Imperial Granite, 940 F.2d at 1271-72; Burlington Northern R.R. Co. v. Blackfeet Tribe, 924 F.2d 899, 901-02 (9th Cir.), petition for cert. filed, 60 U.S.L.W. 3294 (Oct. 2, 1991); Evans v. McKay, 869 F.2d 1341, 1348 n. 9 (9th Cir.1989); Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 479-80 (9th Cir.1985); Snow v. Quinault Indian Nation, 709 F.2d 1319, 1322 (9th Cir.1983), cert. denied, 467 U.S. 1214, 104 S.Ct. 2655, 81 L.Ed.2d 362 (1984); Davis v. Littell, 398 F.2d 83, 84-85 (9th Cir.1968), cert. denied, 393 U.S. 1018, 89 S.Ct. 621, 21 L.Ed.2d 562 (1969). In none of these cases did we hold that the district court was barred from addressing the question of tribal official immunity. Hence, I would permit the district court to consider whether tribal immunity extends to Taylor’s actions here.
Accordingly, I respectfully dissent.
. Interestingly, the tribal corporations expressly waived sovereign immunity from suit in any court of competent jurisdiction under both the sawmill contracts, see Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1224 n. 6 (9th Cir.1989), and the loan agreement. Presumably, such waiver extends to Mr. Taylor as attorney for the tribal corporations which the Colville Tribal court will honor if it now assumes jurisdiction in this case.