concluding that even if the Supreme Court’s precedents establish “only a federal court procedural rule,” that court may look to similar policies in (continued . . .
How later courts described this case
- concluding that even if the Supreme Court’s precedents establish “only a federal court procedural rule,” that court may look to similar policies in (continued . . .
- suggesting that the exhaustion doctrine, inseparable from the policy of deference to tribal courts, is an interstitial rule of federal common law, which is binding upon state courts under the Supremacy Clause; concluding that the exhaustion doctrine is binding on state courts because states are equally likely to disrupt the "federal policy supporting tribal self-government"
- concluding that the concerns "upon which the doctrine is based [are] most pressing when a parallel proceeding is pending in the tribal court"
- finding that exhaustion of tribal remedies doctrine is not jurisdictional, and, therefore, does not mandate dismissal
Written by the judges who cited it.
The opinion
BERDON, J.,
concurring in part and dissenting in part. I agree with the majority that the trial court incorrectly dismissed the action brought by the three plaintiffs, John C. Drumm, Richard Perron and Gerald O. Maranda, on the ground that they failed to “exhaust tribal remedies.” I, like Justice McDonald, disagree that this action with respect to Drumm and Perron should be stayed. They obviously filed their complaint with the tribal court only to protect themselves after the trial court wrongfully dismissed this action. Under those circumstances, fairness would dictate that if Drumm and Per-ron withdraw their complaint before the tribal court they be allowed to prosecute this complaint.
Accordingly, I dissent in part.