Amicus Curiae Brief — Ryan Harvey, et al., Petitioners v. UTE Indian Tribe of the Uintah and Ouray Reservation, et al.

No. 17-1301

In the Supreme Court of the United States

RYAN HARVEY, ET AL., PETITIONERS

v.

UTE INDIAN TRIBE OF THE UINTAH AND OURAY

RESERVATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF UTAH

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JEFFREY BOSSERT CLARK

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

ALLON KEDEM

Assistant to the Solicitor

General

WILLIAM B. LAZARUS

ELIZABETH A. PETERSON

MARY GABRIELLE SPRAGUE

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether Utah’s state courts were required to decline to resolve petitioners’ claims, which include challenges to tribal jurisdiction, until the parties exhausted

their remedies in tribal court.

2. Whether exhaustion of remedies in tribal court

was required even though no party had yet invoked the

tribal court’s jurisdiction by filing suit there.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement ...................................................................................... 1

Discussion:

A. A substantial question exists regarding whether

the Utah Supreme Court has issued a “ final

judgment” over which this Court has jurisdiction ...... 8

B. The Utah Supreme Court’s decision does not

present any conflict warranting this Court’s

review ............................................................................ 12

C. This case would be a poor vehicle for considering

the questions presented .............................................. 20

Conclusion ................................................................................... 23

TABLE OF AUTHORITIES

Cases:

Altheimer & Gray v. Sioux Mfg. Corp., 983 F.2d 803

(7th Cir. 1993) ................................................................ 19, 20

Burlington N. R.R. v. Crow Tribal Council,

940 F.2d 1239 (9th Cir. 1991) ............................................. 22

Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975) ........ 9, 10, 11

Crawford v. Genuine Parts Co., 947 F.2d 1405

(9th Cir. 1991), cert. denied, 502 U.S. 1096 (1992) ........... 19

Drumm v. Brown, 716 A.2d 50 (Conn. 1998) .......... 16, 17, 19

Gavle v. Little Six, Inc., 555 N.W.2d 284

(Minn. 1996), cert. denied, 524 U.S. 911 (1998) .... 14, 15, 22

Hagen v. Utah, 510 U.S. 399 (1994) ................................... 3, 4

Harvey v. Ute Indian Tribe, 797 F.3d 800

(10th Cir. 2015) ................................................................ 5, 14

Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987) ..... passim

Jefferson v. City of Tarrant, 522 U.S. 75 (1997) ................... 8

(III)

IV

Cases—Continued:

Page

Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555

(1963) .................................................................................... 11

Meyer & Assocs., Inc. v. Coushatta Tribe of La.,

992 So. 2d 446 (La. 2008), cert. denied,

556 U.S. 1166 (2009)...................................................... 17, 18

Michigan v. Bay Mills Indian Cmty., 572 U.S. 782

(2014) ...................................................................................... 1

Montana v. United States, 450 U.S. 544 (1981) ............. 2, 16

NAACP v. Claiborne Hardware Co.,

458 U.S. 886 (1982).............................................................. 10

National Farmers Union Ins. Cos. v. Crow Tribe

of Indians, 471 U.S. 845 (1985) ................................ passim

Nevada v. Hicks, 533 U.S. 353 (2001) .................................. 13

Ninigret Dev. Corp. v. Narragansett Indian

Wetuomuck Hous. Auth., 207 F.3d 21

(1st Cir. 2000) ...................................................................... 18

Patsy v. Board of Regents, 457 U.S. 496 (1982).................. 11

Radio Station WOW, Inc. v. Johnson,

326 U.S. 120 (1945).............................................................. 10

State v. Zaman, 946 P.2d 459 (Ariz. 1997),

cert. denied, 522 U.S. 1148 (1998) ............................... 15, 16

Strate v. A-1 Contractors, 520 U.S. 438 (1997) ..... 1, 2, 12, 21

Three Affiliated Tribes of the Fort Berthold

Reservation v. Wold Eng’g, P.C., 467 U.S. 138

(1984) .................................................................................... 13

United States v. Tsosie, 92 F.3d 1037 (10th Cir. 1996) ...... 19

United States v. Wheeler, 435 U.S. 313 (1978)...................... 1

Washington State Dep’t of Soc. & Health Servs.

v. Guardianship Estate of Keffeler,

537 U.S. 371 (2003).............................................................. 10

Williams v. Lee, 358 U.S. 217 (1959) .......................... passim

Young, Ex parte, 209 U.S. 123 (1908) .................................... 6

V

Statutes:

Page

28 U.S.C. 1257 ........................................................................ 11

28 U.S.C. 1257(a) ..................................................................... 8

Ute Law & Order Code § 1-2-3(5) (2013) .............................. 9

In the Supreme Court of the United States

No. 17-1301

RYAN HARVEY, ET AL., PETITIONERS

v.

UTE INDIAN TRIBE OF THE UINTAH AND OURAY

RESERVATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF UTAH

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This brief is submitted in response to this Court’s order inviting the Solicitor General to express the views

of the United States. In the view of the United States,

the petition for a writ of certiorari should be denied.

STATEMENT

1. a. Indian tribes are subject to Congress’s “plenary control,” but “unless and ‘until Congress acts, the

tribes retain’ their historic sovereign authority.” Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788

(2014) (quoting United States v. Wheeler, 435 U.S. 313,

323 (1978)). That historic authority extends to matters

of “internal self-government,” for which tribes retain

“the right to prescribe laws applicable to tribe members

and to enforce those laws.” Wheeler, 435 U.S. at 322.

Tribes also “retain considerable control over nonmember conduct on tribal land.” Strate v. A-1 Contractors,

520 U.S. 438, 454 (1997).

(1)

2

Tribal control over nonmembers on non-Indian land

is relatively limited, by contrast, and tribes generally

“lack civil authority over the conduct of nonmembers on

non-Indian land within a reservation.” Strate, 438 U.S.

at 446. This Court has recognized “two exceptions” to

that rule, however. Ibid. (discussing Montana v. United

States, 450 U.S. 544 (1981)). As relevant here, a “tribe

may regulate, through taxation, licensing, or other means,

the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” Montana, 450 U.S. at 565.

b. In National Farmers Union Insurance Cos. v.

Crow Tribe of Indians, 471 U.S. 845 (1985), this Court

addressed the effect of tribal sovereign interests on adjudication by federal courts of tribal-court jurisdiction.

In that case, a member of the Crow Tribe obtained a

default judgment in tribal court against nonmembers

(collectively, “National Farmers”) based on claims arising from an injury that had occurred on non-Indian land

within the Crow Reservation. Id. at 847-848. Rather

than appeal that judgment in tribal court, National

Farmers filed a federal-court suit against the tribe, its

courts, and its officials seeking an injunction against

further tribal-court proceedings. Id. at 848.

Whether such an injunction was proper, this Court

explained, turned on “whether an Indian tribe retains

the power to compel a non-Indian property owner to

submit to the civil jurisdiction of a tribal court.” 471 U.S.

at 852. And in the Court’s view, “examination” of that

question “should be conducted in the first instance in

the Tribal Court itself.” Id. at 856. Pointing to Congress’s policy of “supporting tribal self-government and

3

self-determination,” as well as the need for “orderly administration of justice in the federal court[s],” the Court

held that the district court should have “stay[ed] its

hand until after the Tribal Court has had a full opportunity to determine its own jurisdiction and to rectify

any errors it may have made.” Id. at 856-857 (footnote

omitted). “Exhaustion of tribal court remedies,” the

Court explained, “will encourage tribal courts to explain

to the parties the precise basis for accepting jurisdiction, and will also provide other courts with the benefit

of their expertise in such matters in the event of further

judicial review.” Id. at 857.

In Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9

(1987), after a tribal court had assumed jurisdiction

over claims arising from an on-reservation automobile

accident, an insurance company that was a party to the

tribal-court proceeding brought a diversity action in

federal court seeking a declaratory judgment that it had

no duty to defend and indemnify the insured. Id. at 11-13.

This Court affirmed dismissal of the action, explaining

that “the exhaustion rule announced in National Farmers” applies “[r]egardless of the basis for jurisdiction”

in federal court. Id. at 16. The Court held that affording “unconditional access to the federal forum would

place it in direct competition with the tribal courts,

thereby impairing the latter’s authority over reservation affairs.” Ibid. “Until appellate review” in tribal

court “is complete,” the Court concluded, the “Tribal

Courts have not had a full opportunity to evaluate the

claim and federal courts should not intervene.” Id. at 17.

2. The Ute Indian Tribe of the Uintah and Ouray

Reservation is a federally recognized tribe with a reservation in northeastern Utah. See Hagen v. Utah, 510 U.S.

4

399, 402-408 (1994). This Court held in Hagen that the

Ute Reservation had been diminished. Id. at 421.

Petitioner Ryan Harvey owns and operates two companies (Rocks Off and Wild Cat Rentals, also petitioners here) that lease equipment and provide dirt, sand,

and gravel to oil-and-gas production companies. Pet.

App. 4a. Petitioners allege that their facilities are located on non-Indian fee lands outside the diminished

Ute Reservation and that they do not operate within the

diminished Reservation. Pls.’ Am. State Compl. (Am.

Compl.) ¶¶ 26-35 (dated Aug. 29, 2013). Petitioners

acknowledge, however, that some of their customers

may transport their products and equipment onto the

Reservation. Id. ¶¶ 31, 35.

Petitioners believe that they do not require tribal authorization to conduct business with customers who operate within the Reservation. Am. Compl. ¶ 36. But

they allege that, beginning in September 2012, a commissioner of the Ute Tribal Employment Rights Office

(UTERO), Dino Cesspooch, threatened to “shut down”

their business unless they obtained certain tribal authorizations, id. ¶ 37, which Harvey then obtained “under duress,” id. ¶ 47. See id. ¶¶ 48-57.

In March 2013, petitioners further allege, Harvey received a letter from UTERO’s Director, Sheila Wopsock, informing him that the Tribe’s Energy and Minerals Department had “revoked” Rocks Off ’s access

permit and that Rocks Off was therefore no longer in

compliance with UTERO’s requirements for “lawful entrance upon the Reservation.” Pet. App. 5a; see id. at

5a-6a. Shortly thereafter, UTERO sent a letter to “all

Oil & Gas Companies” informing them that Rocks Off

was “no longer authorized to perform work on” the Reservation. Id. at 6a. The letter also stated that “[a]ny

5

use” of Rocks Off “by an employer doing work on the

Reservation after receipt of this Notice may result in

the assessment of penalties and/or sanctions against

such employer to the fullest extent of the law.” Ibid.

Petitioners allege that, as a result of UTERO’s letter,

their customers have declined to “do business with [petitioners] or work with anyone that does business with

[petitioners],” and that their business has been “substantially and irreparably harmed” as a result. Am.

Compl. ¶¶ 74, 75.

3. In April 2013, petitioners filed suit in Utah state

district court against, among others, the Tribe and several tribal officials (including Cesspooch and Wopsock)

in their official and individual capacities. Pet. 8; Pet.

App. 7a. Petitioners’ amended complaint raised two

federal claims, contending that the Tribe and tribal officials exceeded their jurisdiction, and five state-law

claims. Pet. App. 7a. Petitioners sought “declaratory

judgments that the tribe and its officials exceeded their

jurisdiction, injunctions against all of the defendants,

and damages.” Ibid.

After the Tribe’s attempt to remove the case to federal district court was rejected on the ground that it had

waived its right to remove, see Harvey v. Ute Indian

Tribe, 797 F.3d 800, 803 (10th Cir. 2015), the state district court dismissed claims against the Tribe based on

its sovereign immunity, Pet. App. 97a-106a, and against

the other defendants on the ground that the Tribe was

a necessary and indispensable party, id. at 107a-117a.

The court also held that the Tribe’s sovereign immunity

precluded petitioners’ claims against the tribal officials,

id. at 128a-131a, and that certain other claims failed to

state a ground on which relief could be granted, id. at

117a-126a.

6

4. The Utah Supreme Court affirmed in part and reversed in part. Pet. App. 1a-93a. The decision was unanimous in several respects. First, it affirmed dismissal of

all claims against the Tribe based on its sovereign immunity. Id. at 10a-15a. Second, characterizing petitioners’ claims for injunctive relief against the tribal officials as official-capacity claims, the court held that any

claim that those officials exceeded their authority under

tribal law was barred by the Tribe’s sovereign immunity, but that claims that the officials exceeded limitations

on their authority under federal law could be asserted

under the framework of Ex parte Young, 209 U.S. 123

(1908). Pet. App. 21a. Third, the court held that the

state district court had erred in dismissing the case for

failure to join an indispensable party (the Tribe). Id. at

22a-25a. Fourth, the court dismissed certain state-law

claims against certain defendants. Id. at 38a-52a.

As a result of those rulings, and as relevant here, the

following claims were left for resolution: (1) claims for

declaratory and injunctive relief against the tribal officials in their official capacities, asserting that they had

exceeded federal-law limitations on their authority; and

(2) various state-law claims for damages against the

tribal officials in their personal capacities and against

other defendants. The Utah Supreme Court divided on

the proper disposition of those claims.

Justice Durham, writing for the court, concluded

that, although no suit was then pending in tribal court,

petitioners should have been required to exhaust tribal

remedies. Pet. App. 26a-35a. Noting that a tribe has a

sovereign right to exclude non-Indians from its land,

Justice Durham described the “central question” in the

case as “whether the tribal officials were regulating who

may come onto tribal land.” Id. at 29a-30a. A tribal

7

court should have the “first opportunity” to answer that

question, she concluded, including by deciding whether

the Tribe had authority under tribal law to require petitioners to obtain a permit and whether its officials lawfully revoked the permit. Id. at 30a. Justice Durham

accordingly remanded the case to the state district

court, instructing it either to dismiss the case in favor

of tribal-court proceedings or “to stay the state court

proceedings to await the outcome in the tribal court.”

Id. at 34a; see id. at 34a-35a.

Justice Himonas concurred and issued a separate

opinion to explain his view that tribal-court exhaustion

under National Farmers and LaPlante properly applies in state-court proceedings. Pet. App. 53a-73a.

That doctrine is a judicially recognized component of

federal Indian law, he explained, binding on the States

under the Supremacy Clause. Id. at 60a-67a. Justice

Himonas emphasized that federal and state courts are

thus required to defer to tribal courts whenever a

“tribal court has a colorable claim of jurisdiction” based

on one of the two Montana “exceptions.” Id. at 58a-59a.

Associate Chief Justice Lee concurred in part and

dissented in part, finding no need for petitioners to exhaust tribal remedies in this case. Pet. App. 74a-93a. In

Justice Lee’s view, the tribal-exhaustion doctrine is not

a “binding federal rule” that applies in state-court proceedings, particularly where no pending tribal proceeding exists. Id. at 76a. Justice Lee would instead “adopt

a rule of exhaustion as a matter of comity under Utah

common law,” id. at 84a, but he would require Utah’s

courts to “stay [their] exercise of jurisdiction only after

one of the parties has invoked the jurisdiction of the

tribal courts,” id. at 76a.

8

DISCUSSION

Petitioners contend that the Utah Supreme Court

erred in ordering the state district court to dismiss or

stay further adjudication of petitioners’ claims until the

Tribe’s courts have weighed in on the dispute. Petitioners argue that disagreement exists regarding whether

federal tribal-exhaustion principles apply in state court.

Although state supreme courts have taken somewhat

different approaches in cases involving claims that implicate tribal jurisdiction, those decisions have largely

rested on multiple case-specific factors, and no clear-cut

conflict exists. Several features of this case, including

its interlocutory posture, would also make it an inappropriate vehicle for considering the circumstances in which

state courts should defer in favor of tribal-court proceedings. Further review is unwarranted at this time.

A. A Substantial Question Exists Regarding Whether The

Utah Supreme Court Has Issued A “Final Judgment”

Over Which This Court Has Jurisdiction

This Court’s jurisdiction to review state-court decisions is limited to “[f ]inal judgments or decrees rendered by the highest court of a State in which a decision

could be had.” 28 U.S.C. 1257(a). That provision “establishes a firm final judgment rule.” Jefferson v. City

of Tarrant, 522 U.S. 75, 81 (1997).

The Utah Supreme Court’s decision in this case is interlocutory in that it did not finally determine or terminate the litigation. After affirming dismissal of some of

petitioners’ claims and reinstating others, the court remanded “for the district court to determine whether the

case should be dismissed or stayed under the tribal exhaustion doctrine.” Pet. App. 52a; see id. at 35a. If the

district court elects to stay the case until any proceedings have concluded in the tribal courts, adjudication of

9

petitioners’ claims could later resume in state court.

But in addition, Justice Himonas—whose decision Justice Durham “charge[d] the district court to carefully

follow,” id. at 35a n.12—indicated that petitioners would

not be required to file their claims in tribal court unless

there was a “nonfrivolous basis” for believing that tribal

courts would have jurisdiction over petitioners’ claims.

Id. at 71a. Justice Himonas noted that the “plain language” of a provision of tribal law seems to preclude

tribal courts from “from exercising jurisdiction over”

certain of petitioners’ claims. Ibid. (citing Ute Law &

Order Code § 1-2-3(5) (2013)); see id. at 71a-73a. Justice

Himonas thus indicated that further proceedings in the

district court would likely be needed to determine

whether requiring petitioners to resort to tribal court

was appropriate. See id. at 73a (“[T]he tribal exhaustion doctrine cannot require a plaintiff to file a truly

frivolous claim in tribal court.”).

While not disputing the case’s interlocutory “posture,” Reply Br. 10, petitioners nevertheless argue that

the ruling below may be treated as final under two of

the exceptions to the final-judgment rule recognized in

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975).

First, petitioners argue that, “although the case has

been remanded, ‘the federal issue will not be mooted or

otherwise affected by the proceedings yet to be had because those proceedings have little substance and they

are wholly unrelated to the federal question.’ ” Reply

Br. 10 (quoting 420 U.S. at 478) (brackets and ellipsis

omitted). Second, petitioners argue that, “even if the

remand did bear on the federal issue, ‘later review cannot be had, whatever the ultimate outcome of the case.’ ”

Ibid. (quoting 420 U.S. at 481) (ellipsis omitted).

10

Although the issue is not entirely clear, good reason

exists to doubt whether Cox Broadcasting authorizes

review here. The first exception petitioners invoke does

not apply because further substantive proceedings in

state court will likely affect, and may in fact moot, the

federal issue. The district court may decide, in line with

Justice Himonas’s instructions to consider the issue,

that resort to tribal courts is not required because tribal

courts would plainly lack jurisdiction over petitioners’

claims (or some of them). Or petitioners might prevail

in tribal court. Or they might prevail in state court after

tribal-court proceedings have been instituted and exhausted, if the state court concludes that the tribal

courts exceeded the federal-law limitations on their jurisdiction and then rules for petitioners on the merits.

This case is thus unlike decisions in which further statecourt proceedings were anticipated to “have little substance,” Cox Broadcasting, 420 U.S. at 478, most of

which involved a final merits determination by the

State’s highest court, accompanied by a remand to address ancillary issues such as damages or attorney’s

fees. See, e.g., Washington State Dep’t of Soc. & Health

Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371,

381 n.5 (2003); NAACP v. Claiborne Hardware Co.,

458 U.S. 886, 907 n.42 (1982); Radio Station WOW, Inc.

v. Johnson, 326 U.S. 120, 126 (1945).

As to the other Cox Broadcasting exception, petitioners argue (Reply Br. 10) that, absent review by this Court,

their opportunity to challenge the Utah Supreme Court’s

exhaustion decision “will be lost forever.” Whether that

is true will depend, however, on the course of future

proceedings, including whether the state district court

concludes on remand that invocation and exhaustion of

tribal-court remedies would be futile. Or if state-court

11

proceedings are stayed pending any proceedings instituted in tribal court, and the tribal courts rule in a manner adverse to petitioners on a factual or legal question

bearing on federal-law limitations on tribal-court jurisdiction, then petitioners may challenge that ruling upon

return to state court; rejection of that federal-law challenge would presumably be reviewable by the Utah Supreme Court—and then, if necessary, by this Court.

Justice Durham’s opinion also suggested that “if Harvey does not agree with the tribe’s determination of its

jurisdiction, he will be able to seek review of the tribal

court’s order in federal court,” Pet. App. 34a, after which

petitioners could presumably seek this Court’s review.

Petitioners are correct (Reply Br. 10) that only review by this Court at this stage is likely to fully vindicate what they assert to be a “right to proceed in state

court without having to exhaust in tribal court.” Petitioners rely (id. at 11) on Patsy v. Board of Regents, 457

U.S. 496 (1982), but that decision involved review of a

federal court’s exhaustion ruling. In Mercantile National Bank v. Langdeau, 371 U.S. 555, 558 (1963), the

Court took jurisdiction, under Section 1257, over the defendants’ challenge to a state-court decision regarding

venue, where the defendants alleged that a federal statute “prohibit[ed] further proceedings against the defendants in the state court in which the suit is now pending.” See Cox Broadcasting, 420 U.S. at 481-487 (discussing Mercantile National Bank and similar cases).

But given the respect due tribal courts under National

Farmers and LaPlante, there is considerable doubt

that “refusal immediately to review the state-court decision” in this case would “seriously erode federal policy,” which is necessary to fall within the exception. Id.

at 482-483.

12

B. The Utah Supreme Court’s Decision Does Not Present

Any Conflict Warranting This Court’s Review

1. In National Farmers Union Insurance Cos. v.

Crow Tribe of Indians, 471 U.S. 845 (1985), this Court

held that federal courts must abstain from resolving

certain questions concerning federal-law limitations on

the jurisdiction of a tribal court before which a suit is

pending, because those questions should first be resolved in the tribal-court proceeding. In Iowa Mutual

Insurance Co. v. LaPlante, 480 U.S. 9 (1987), the Court

held that a federal court, under its diversity jurisdiction, should not resolve a dispute on the merits under

state law when a suit is already pending in tribal court

arising out of the same occurrence. Id. at 12-14, 16.

That rule, the Court explained, applies as a matter

of “federal policy” when necessary to prevent “direct

competition with the tribal courts” by “any nontribal

court”—which would appear to include a state court—

on matters of tribal “authority over reservation affairs.”

Id. at 16; see id. at 15 (“federal law” prohibits “statecourt jurisdiction” that “would interfere with tribal sovereignty and self-government”).

For similar reasons, however, the justification for

abstaining in favor of tribal-court proceedings under

the specific rationales of National Farmers and LaPlante

would appear ordinarily to depend on whether tribalcourt proceeding are, in fact, pending. See Strate v.

A-1 Contractors, 520 U.S. 438, 448 (1997) (“[National

Farmers] describe[s] an exhaustion rule allowing tribal

courts initially to respond to an invocation of their jurisdiction.”). If no tribal-court proceeding is pending,

adjudication of the parties’ claims by a non-tribal court

would not create any “direct competition” with tribal

courts. LaPlante, 480 U.S. at 16. Instead, where a non-

13

Indian attempts to sue a tribe or tribal member in state

court concerning on-reservation conduct (whether or

not there is a pending tribal-court proceeding), any bar

to the state court’s adjudication of the case would normally be based, not on National Farmers or LaPlante,

but on Williams v. Lee, 358 U.S. 217 (1959), which held

that suits against tribal members in state court involving on-reservation conduct are generally barred, id. at 223.

In arguing that the rationale for exhaustion “does

not require a case to be pending in the tribal court,” Pet.

App. 28a, Justice Durham opined that to permit any

state-court adjudication of “a tribe’s right to exclude individuals from their land” would necessarily infringe on

tribal sovereignty, ibid. But this Court has concluded

that state courts may resolve disputes involving tribes

and tribal members concerning access to a reservation,

where the cause of action arose outside of Indian country. See Nevada v. Hicks, 533 U.S. 353, 362 (2001). And

the Court “repeatedly has approved the exercise of jurisdiction by state courts over claims by Indians against

non-Indians, even when those claims arose in Indian

country.” Three Affiliated Tribes of the Fort Berthold

Reservation v. Wold Eng’g, P.C., 467 U.S. 138, 148

(1984). There is accordingly no categorical prohibition

against state-court adjudication of suits that implicate

tribal interests. Nor is a state court forbidden, if necessary to resolve state-law claims over which the court

otherwise has jurisdiction, from interpreting tribal

law—any more than it would be forbidden from interpreting federal law or the law of another State.

This case, however, includes claims for injunctive relief against tribal officials in their official capacity for

allegedly exceeding federal-law limitations on their au-

14

thority in taking regulatory action concerning permitting of access to the Reservation. Such a suit raises particular concerns under the distinct barrier to statecourt adjudication under Williams v. Lee. Resolution

of those federal claims would, in turn, inform resolution

of the state-law damages claims against those officials.

See Pet. App. 34a-35a & n.11. Yet the parties’ petitionstage briefs do not even cite Williams v. Lee.

2. Petitioners assert (Pet. 2) that “widespread confusion” and persistent “disagreement” exists among

state courts regarding the applicability in state court of

the tribal-court exhaustion doctrine. Notably, however,

petitioners cite only four state supreme court decisions

in the 30 years following LaPlante. That is unsurprising, as suits involving tribal litigants are often filed in,

or removed to, federal court. Cf. Harvey v. Ute Indian

Tribe, 797 F.3d 800, 803 (10th Cir. 2015) (respondents’

removal rejected because they “waived their right to removal and their right to consent to removal”). The four

cited state supreme court decisions, moreover, were decided largely on case-specific circumstances. In the absence of crystallized disagreement in the state courts,

review in this case is not warranted. That is especially

so because Associate Chief Justice Lee’s dissent would

have applied an exhaustion principle as a matter of comity under state law, albeit only where one of the parties

had instituted a proceeding in tribal court, see Pet. App.

76a, 84a—the very situation in which this Court required exhaustion in National Farmers and LaPlante.

a. The earliest case on which petitioners rely, Gavle

v. Little Six, Inc., 555 N.W.2d 284 (Minn. 1996), cert.

denied, 524 U.S. 911 (1998), involved state-law tort claims

by a non-Indian employee against a tribal corporation

15

based on actions occurring both within and outside Indian country. The Minnesota Supreme Court focused

primarily on whether a state court should exercise jurisdiction over those claims under the Williams v. Lee

test of whether state-court adjudication would unduly

infringe upon tribal sovereignty. Id. at 291-292. To answer that question, the court considered multiple factors, including the lack of any “federal prohibition on

state court consideration of civil claims arising out of

the acts of Indian business entities occurring outside of

Indian country,” id. at 290, and the need to avoid

“highly inappropriate” claim-splitting, in which allegations of tortious conduct within Indian country would

be tried in tribal court, but allegations of tortious conduct outside Indian country would be tried in state

court, ibid. As part of its infringement inquiry, the

court briefly discussed the exhaustion principles at issue in National Farmers and LaPlante. Id. at 291. Ultimately, although it found “the question [to be] a close

one,” the court concluded that the State’s courts should

exercise jurisdiction, but only to decide “whether [the

tribal defendant] may assert the defense of sovereign

immunity.” Id. at 292. The court then held that all the

plaintiff ’s claims were barred by sovereign immunity.

Id. at 292-296.

In State v. Zaman, 946 P.2d 459 (Ariz. 1997) (en banc),

cert. denied, 522 U.S. 1148 (1998), Arizona brought suit

in state court on behalf of an Indian mother (a member

of the Navajo Nation) and her child to obtain custody

and child support from the non-Indian father. Id. at

460. The Arizona Supreme Court rejected the father’s

challenge to state-court jurisdiction, concluding that it

would not “unduly infringe on Indian self-governance” under Williams v. Lee, and that “[t]he infringement test

16

protects Indians” and “is not an offensive tool to be used

against them.” Id. at 461. The court questioned whether

a tribal court, under Montana v. United States, 450 U.S.

544 (1981), and other relevant precedents, would have

jurisdiction over the action. 946 P.2d at 463-464. The

court concluded that it did not need to decide that issue,

however, because “it would be unwise to hold that the

state court should refrain from exercising certain state

court jurisdiction in favor of uncertain tribal court jurisdiction” under the circumstances—namely, that the

Indian mother “has a right to bring th[e] action in state

court,” and there “is no countervailing tribal interest in

helping [the non-Indian father] escape his legal obligations.” Id. at 464.

In Drumm v. Brown, 716 A.2d 50 (Conn. 1998), the

plaintiffs were an employee of a tribal casino and two

state police officers working there. The plaintiffs asserted various tort claims in state court against officers

of the tribe and its gaming enterprise arising from the

defendants’ accusations of misconduct against the plaintiffs. Id. at 52-53. After the state trial court dismissed

the complaint for failure to exhaust tribal remedies, the

police officers filed suit in tribal court, and all the plaintiffs appealed the dismissal. Id. at 54. The Connecticut

Supreme Court first held that it would treat the tribalexhaustion doctrine as “binding” on Connecticut courts,

id. at 61, because National Farmers and LaPlante appear to have been based on “substantive” federal policy,

id. at 63. But even if the exhaustion doctrine “constitute[s] only a federal court procedural rule,” the court

explained, it would nevertheless “adopt the doctrine”

for Connecticut courts in order to avoid harming “the

federal policy of supporting tribal self-government and

17

self-determination.” Ibid. But the court went on to interpret National Farmers and LaPlante as requiring

exhaustion only when a proceeding was pending in

tribal court, although such proceeding need not be the

first-filed action. Id. at 64-66. The court consequently

held that the plaintiffs’ state-court action should be

stayed on the claims of the two police-officer plaintiffs,

who had also filed suit in tribal court, but could proceed

on the claims of the employee-plaintiff, who had not

done so. Id. at 66-67.

Finally, Meyer & Associates, Inc. v. Coushatta Tribe

of Louisiana, 992 So. 2d 446 (La. 2008), cert. denied,

556 U.S. 1166 (2009), involved a breach-of-contract action filed in state court by a construction firm against

the Coushatta Tribe. Id. at 448-449. The Louisiana Supreme Court observed that this Court “has never held

that the exhaustion of tribal remedies doctrine applies

to the states.” Id. at 450. But even assuming that it

does, the Louisiana Supreme Court continued, it would

apply only where the state and tribal courts “share jurisdiction.” Ibid. Therefore, to know whether exhaustion was appropriate, the state court would first have to

decide “whether the Tribe had validly waived its sovereign immunity,” and the state court should “declin[e] to

defer to the Tribal Court on that issue.” Ibid. The court

then concluded that the Tribe had indeed waived its sovereign immunity. Id. at 450-451. In light of what it believed to be the “discretionary” nature of the tribalcourt exhaustion doctrine, the parties’ contractual choiceof-law provision subjecting the dispute to Louisiana

law, and Louisiana’s “major interest in contractual disputes involving its corporations and municipalities,” the

court concluded that the state trial court had not

18

“abused its discretion” in declining to stay the case in

favor of exhaustion in tribal court. Id. at 451-452.

As the foregoing shows, this handful of state supreme court decisions defies easy characterization.

Each relied on multiple considerations—often drawing

simultaneously on related Indian-law doctrines, such as

the Williams v. Lee infringement test (which no party

has discussed in its briefing here)—in deciding whether

to stay state-court proceedings in favor of proceedings

in tribal court. Nor did those courts give categorical

yes-or-no answers to that question. Petitioners thus

oversimplify when they assert (Pet. 18-19) that Gavle

took an approach “opposite” to that of Drumm and describe Zaman and Meyer & Associates as holding that

the exhaustion doctrine categorically does not “apply”

in state courts. The differing outcomes in those cases

are more properly attributed to the courts’ consideration of case-specific factors.

b. Petitioners briefly assert (Pet. 21-22; Reply Br. 8-9)

that the decision below warrants review because of a

conflict regarding whether the tribal-exhaustion doctrine applies in the absence of parallel tribal-court proceedings. Because that question is relevant in this case

only if the doctrine applies in state court as an initial

matter, it would not independently warrant this Court’s

review.

In any event, there is some disagreement (although

less than petitioners claim) about the relevance of pending tribal-court proceedings. As petitioners note, several federal courts of appeals have concluded that the

absence of simultaneous tribal-court proceedings is not

dispositive in cases brought in federal court. Pet. 21

(citing Ninigret Dev. Corp. v. Narragansett Indian

Wetuomuck Hous. Auth., 207 F.3d 21, 31 (1st Cir. 2000);

19

United States v. Tsosie, 92 F.3d 1037, 1041 (10th Cir.

1996); Crawford v. Genuine Parts Co., 947 F.2d 1405,

1407 (9th Cir. 1991), cert. denied, 502 U.S. 1096 (1992)).

In this case brought in state court, the Utah Supreme

Court likewise concluded that the tribal-exhaustion doctrine “does not require a case to be pending in the tribal

court,” Pet. App. 28a, while Associate Chief Justice Lee

argued in dissent that “the LaPlante line of cases” does

not apply “in the absence of a pending case filed in tribal

courts,” id. at 84a-85a. By contrast, the Connecticut Supreme Court held in Drumm “that exhaustion is not required in the absence of a pending action in the tribal

court,” 716 A.2d at 64, and it appears to be the only state

court of last resort to so hold.

Petitioners also rely (Pet. 22) on the Seventh Circuit’s decision in Altheimer & Gray v. Sioux Manufacturing Corp., 983 F.2d 803 (1993), but that case did not

resolve the issue. The Seventh Circuit noted that National Farmers and LaPlante had “dealt only with the

situation where a tribal court’s jurisdiction over a dispute has been challenged by a later-filed action in federal court.” Id. at 814. But it also observed that those

cases had articulated “broader” principles, which several federal appellate courts had applied “to cases in

which there existed no first-filed tribal court action.”

Ibid. The Seventh Circuit saw no need to weigh in on

that issue, however, because “even [those] Circuits” had

not applied the tribal exhaustion doctrine automatically,

but instead had “f [ou]nd it necessary to examine the factual circumstances of each case.” Ibid. After looking at

several case-specific factors—most importantly the

tribal defendant’s “explicit[] agree[ment] to submit to

the venue and jurisdiction of federal and state courts located in Illinois”—the Seventh Circuit determined that

20

abstention would not be appropriate. Id. at 815; see id.

at 814-815. The court’s decision therefore did not turn

on the absence of pending tribal-court proceedings.

C. This Case Would Be A Poor Vehicle For Considering

The Questions Presented

Even if this Court has jurisdiction to review the Utah

Supreme Court’s decision, see pp. 8-11, supra, that decision is unclear in several key respects. Insofar as this

Court might seek to determine whether and in what

manner invocation of tribal-court proceedings would

be appropriate under the circumstances of this case—

rather than decide whether the tribal-exhaustion doctrine “applies to state courts” as a categorical matter,

Pet. i—the lack of clarity in the decision below could inhibit the Court’s ability to fully undertake that task.

First, although petitioners seek to prevent the Ute

tribal courts from resolving their state-law “claims,”

e.g., Pet. 2, 27, it is unclear whether the Utah Supreme

Court intended to adopt a categorical rule mandating

tribal-court resolution of claims—as distinguished from

specific questions relevant to those claims—in a case

such as this. Justice Durham’s opinion for the court focused primarily on certain legal questions that the

tribal court should address, including “[w]hether the

tribe may demand that Harvey obtain a permit,” Pet.

App. 30a, and “[w]hether the tribal officials unlawfully

revoked Harvey’s permit,” ibid.; see id. at 35a n.11

(whether Tribe’s actions “exceeded the tribe’s authority”). Those “question[s] of tribal law,” in Justice

Durham’s view, require tribal resolution because they

speak directly to the Tribe’s “jurisdiction[ ]” and “selfgovernance.” Id. at 30a. Elsewhere, however, Justice

Durham stated more broadly that “Harvey must exhaust his remedies in tribal court, even if the tribal

21

court must end up applying some state law,” id. at 33a,

a statement that suggests exhaustion of claims, as to

which nontribal law (i.e., state law) would be relevant.

Petitioners’ arguments, which are grounded in concerns about state sovereignty and due process, see Pet.

25-33, are premised on reading the decision below

broadly, as requiring claims to be filed in tribal court.

See Pet. i. But neither petitioners nor respondents have

argued that a state court may not, while retaining jurisdiction over claims over which it would otherwise have

jurisdiction under Williams v. Lee, provide for a tribal

court to decide specific questions within its expertise—

in a manner analogous to principles of primary jurisdiction or certification of state-law issues to a state court.

And we are aware of no basis in federal law for disapproving that procedure.

Moreover, there appear to be issues in this case that

could affect the propriety of requiring exhaustion in

tribal court of some or all of petitioners’ claims. If the

tribal court lacks jurisdiction to adjudicate one or more

of petitioners’ claims, filing such claims in the tribal

court would be futile and presumably not required. See

National Farmers, 471 U.S. at 856 n.21 (exhaustion not

required where it “would be futile”). Justice Himonas

thus instructed the district court to consider on remand

whether, under tribal law, the tribal courts could hear

petitioners’ claims seeking relief against the tribal officials in their official capacities. See pp. 9-10, supra.

Also unclear is whether tribal courts may adjudicate petitioners’ state-law claims for damages. Tribal courts

have limited jurisdiction over nonmember conduct on

non-Indian land, see Strate, 520 U.S. at 454, and at this

stage of the litigation it is disputed where the events

underlying petitioners’ claims took place. Compare Pet.

22

6 (“[Petitioners] never engaged in business on reservation land.”), with Br. in Opp. 19 (“[T]his case involves an

exercise of the Tribe’s authority to exclude nonmembers from the Reservation.”). And depending on resolution of that question, the general limitation under

Williams v. Lee on state-court jurisdiction over suits

against Indians for on-reservation conduct would also

have to be considered. Nor is it clear whether petitioners’ claims could appropriately be split between state

and tribal courts based on where conduct relevant to

different claims occurred. Cf. Gavle, 555 N.W.2d at 290291 (finding claim-splitting there “highly inappropriate”).

A state court in a case such as this may also need to

consider whether invocation of tribal administrative

proceedings would be appropriate in the first instance.

See, e.g., Burlington N. R.R. v. Crow Tribal Council,

940 F.2d 1239, 1244-1247 (9th Cir. 1991) (requiring

plaintiff to exhaust both administrative and judicial

tribal remedies before federal litigation could proceed).

Respondents have argued (at 22) that petitioners failed

to avail themselves of the administrative procedures the

Tribe affords for challenging the revocation of tribal authorizations. As the case comes to this Court, however,

it is not clear what the procedures are for challenging

the revocation of an access permit (see p. 4, supra),

whether petitioners were advised of them, or whether

they still remain available to petitioners.

23

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JEFFREY BOSSERT CLARK

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

ALLON KEDEM

Assistant to the Solicitor

General

WILLIAM B. LAZARUS

ELIZABETH A. PETERSON

MARY GABRIELLE SPRAGUE

Attorneys

DECEMBER 2018