Elliott v. White Mountain Apache Tribal Court

Full title: Valinda Jo Elliott, Plaintiff, v. White Mountain Apache Tribal Court…

Court: United States District Court, D. Arizona

Date published: Dec 6, 2006

No. CIV 05-4240-PCT-MHM (D. Ariz. Dec. 6, 2006)

Opinion

No. CIV 05-4240-PCT-MHM.

December 6, 2006

ORDER

MARY MURGUIA, District Judge

Currently before the Court is Defendants White Mountain Apache Tribal Court; Honorable John Doe Tribal Judge; and White Mountain Apache Tribe's ("Defendants") Second Amended Motion to Dismiss. (Dkt. #6). After reviewing the pleadings and conducting oral argument on December 4, 2006, the Court issues the following Order.

I. Background

On December 27, 2005, Plaintiff Valinda Jo Elliott ("Plaintiff") filed the instant Complaint in this Court. (Dkt. #1). Plaintiff's Complaint seeks declaratory and injunctive relief against Defendants. Specifically, Plaintiff seeks to enjoin the prosecution of a civil action against Plaintiff in the White Mountain Apache Tribal Court and for a declaratory judgment that the Tribal Court may not exercise jurisdiction over Plaintiff. (Dkt. #1, Complaint ("Compl.) ¶ 1). Plaintiff is named in the Tribal Court complaint for her alleged role in contributing and/or causing a fire that caused substantial damage to the land within the territory and boundary of the White Mountain Apache Tribe reservation in the months of June and July 2002. (Id. ¶ 9). After being lost in the wilderness for approximately three days, Plaintiff set a signal fire to flag down an overflying helicopter traveling to a nearby fire. (Id.). The signal fire worked and the helicopter picked up Plaintiff and flew her to safety. (Id.). However, the signal fire spread and continued to burn. The signal fire merged into the nearby burning fire and formed the Rodeo-Chediski fire; one of the State of Arizona's largest fires burning over 400,000 acres of land, including land within the White Mountain Apache Tribal reservation. On June 11, 2003, the White Mountain Apache Tribe instituted a civil action in White Mountain Apache Tribal Court against Plaintiff. The current tribal complaint asserts claims against Plaintiff, a non-Indian and non-member of the White Mountain Apache Tribe, seeking civil penalties including restitution for violations of the White Mountain Apache Tribe government and game and fish codes as well as acts of negligence and trespass. (Defendants' Second Amended Motion to Dismiss, Exhibit A).

Plaintiff challenged the jurisdiction of the White Mountain Apache Tribal Court during the course of litigation in that court. (Compl. ¶ 12). Specifically, Plaintiff filed a motion to dismiss for lack of jurisdiction citing the Supreme Court's ruling in Montana v. United States, 450 U.S. 544 (1981). Plaintiff's motion was denied at the Tribal trial court level on December 18, 2003 and the White Mountain Apache Court of Appeals dismissed Plaintiff's appeal on April 12, 2005, finding that it did not possess the requisite jurisdiction to hear the appeal because a final order had not yet been issued in the case. (Defendants' Second Amended Motion to Dismiss, Exhibits B and C). Plaintiff asserted the instant action on December 27, 2005 and on March 20, 2006, Defendants filed their instant Second Amended Motion to Dismiss citing Rules 12(b)(2), 12(b)(4), 12(b)(5) and 12(b)(6) as basis for dismissal. Plaintiff has opposed the Motion and it is fully briefed and ripe for the Court's consideration.¹

1 Defendants' basis for dismissal pursuant to Rule 12(b)(2), 12(b)(4) and 12(b)(5) is moot as the Parties agree that the issue with service of process has been resolved.

II. Analysis

Defendants move to dismiss Plaintiff's complaint on several grounds invoking Rule 12(b)(6) including (1) Plaintiff did not properly exhaust the requisite tribal remedies prior to bringing the instant action; and (2) the Tribal Court clearly has jurisdiction pursuant to the Supreme Court's ruling in Montana v. United States, 450 U.S. 544 (1981).

A. Exhaustion of Tribal Remedies

Defendants contend that dismissal, or at the very least a stay, of Plaintiff's Complaint is proper because Plaintiff has not exhausted tribal remedies prior to bringing suit in this Court. This position is in direct contravention to the allegation of Plaintiff's Complaint which states "Plaintiff has exhausted her Tribal remedies and Tribal jurisdiction clearly does not lie under Montana v. U.S. Therefore, any further proceedings in Tribal Court are contrary to law." (Compl. ¶ 15). Support for Defendants' position derives from the Supreme Court's ruling inNational Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 854-57, (1985) which held that "a district court should order a stay, or dismiss the action, notwithstanding the fact it has subject matter jurisdiction over a civil action against a non-Indian, to permit a tribal court to determine in the first instance whether it has the power to exercise subject matter jurisdiction in a civil dispute between Indians and non-Indians that arises on an Indian reservation." Stock West Corp. v. Taylor, 964 F.2d 912 (9^th Cir. 1992) (en banc). The Supreme Court justified such action in district courts because "an orderly administration of justice in federal court will be served by allowing a full record to be developed in the Tribal Court before either the merits or any question concerning appropriate relief is addressed." National Farmers, 471 U.S. at 856. Moreover, Defendants point out that according to the Supreme Court "exhaustion of tribal remedies requires that tribal appellate courts be given the opportunity to review determinations of the lower tribal courts." Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 17 (1987). Defendants further note that to date, only the White Mountain Apache trial court has made a determination on the merits as to jurisdiction over Plaintiff in the White Mountain Apache Tribal Court. (Defendants' Second Amended Motion to Dismiss, Exhibit B). The White Mountain Apache Court of Appeals dismissed Plaintiff's interlocutory type appeal noting that the White Mountain Apache Rules of Appellate Procedure only give the appellate court jurisdiction to hear "final decisions and orders" from tribal court. (Defendants' Second Amended Motion to Dismiss, Exhibits C). As such, the appellate court did not reach the merits and dismissed for lack of jurisdiction. Defendants, therefore, argue that the exhaustion of tribal remedies has not been met. Conversely, Plaintiff argues that a decision on the merits from the White Mountain Apache Court of Appeals is not required under the holding of Iowa Mutual and that because the tribe has taken the requisite "`first bite' at the apple" in determining jurisdiction that the tribal remedies requirement has been met. (Plaintiff's Response, pp. 3-4).

The Court finds itself in agreement with Defendants on this issue. It is undisputed that the White Mountain Apache Court of Appeals has not entertained the merits of Plaintiff's appeal regarding her motion for lack of jurisdiction before the Tribal Court. As noted above, the holding in Iowa Mutual is clear in that, at the very least, the Tribal appellate courts must be given the opportunity to entertain the merits of the jurisdiction issue before bringing any claim in federal court. Here, no such opportunity was presented as the White Mountain Apache Court of Appeals lacked jurisdiction to review Plaintiff's appeal. In addition, there does not appear to be any type of discretionary type of review that the White Mountain Apache Court of Appeals could have exercised as the Appellate Rules of the White Mountain Apache Tribe apparently do not consider hearing non-final orders, such as Plaintiff's appeal. As such, the appellate court lacked even the opportunity to hear Plaintiff's appeal. Until this appeal is heard, or at least the Tribal appellate court has the opportunity to hear it, this Court finds that the exhaustion requirement has not been met.

While the Court finds that as a general matter, tribal remedies were not exhausted prior to bringing suit in this Court, the inquiry does not stop here. Plaintiff offers several bases justifying the exercise of jurisdiction in this Court even though exhaustion has not been met. For instance, Plaintiff contends that exhaustion is not required where, as here, there is no colorable or plausible claim of jurisdiction. In addition, Plaintiff asserts that the three exceptions to the exhaustion requirement support jurisdiction in this Court.

(1) Appropriateness of Tribal Jurisdiction

As noted by the Ninth Circuit in Allstate Indem. Co. v. Stump, 191 F.3d 1071, 1073 (9^th Cir. 1999) the Supreme Court has affirmed the exhaustion requirement prior to bringing federal suit unless "it is plain" that the tribal court lacks jurisdiction over the dispute. (citing Strate v. A-1 Contractors, 520 U.S. 438, 459 (1997)). Thus, where the tribal court plainly lacks jurisdiction, exhaustion serves no other purpose than delay and is, therefore, unnecessary. Nevada v. Hicks, 533 U.S. 353, 356 (2001). In this case, Plaintiff asserts that tribal jurisdiction is clearly lacking, thus excusing any failure to exhaust her tribal remedies prior to bringing suit in this Court. Defendants, on the other hand, take exception to Plaintiff's position and argue that this case falls firmly within the authorization of tribal jurisdiction discussed in the seminal case on tribal jurisdiction over nonmembers of United States v. Montana, 450 U.S. 544 (1981).

As recognized by the Ninth Circuit, "[a]nalyis of Indian tribal court jurisdiction begins with United States v. Montana." Ford Motor Co. v. Todecheene, 394 F.3d 1170, 1174 (9^th Cir. 2005). InMontana, the Supreme Court "held that an Indian tribe could not regulate hunting and fishing by non-Indians on non-Indian owned fee land within the reservation." Id. The Supreme Court further explained that there are two sources of tribal jurisdiction against nonmembers; either positive by law, by way of statute or treaty, or through the inherent sovereignty of the tribe.Montana, 450 U.S. at 564.² The Supreme Court further stated that "the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." Id. at 565. However, this general principle, applicable to the instant case as the Plaintiff is a non-member defendant in Tribal Court, is subject to two exceptions. The first exception is that 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." Id. at 565. The second exception is that 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 welfare of the tribe."Id. at 566. The Ninth Circuit recently spoke to the Montana exceptions and grant of jurisdiction over nonmembers in tribal courts in Smith v. Salish Kootenai College ("SKC), 434 F.3d 1127 (9^th Cir. Jan. 10, 2006) (en banc). In SKC, the Ninth Circuit noted that courts generally look to two specific facts when considering tribal court jurisdiction over a nonmember. First, courts look to the party status of the nonmember. Id. at 1131. In other words, whether the nonmember is a plaintiff or defendant in tribal court. Second, courts have considered, perhaps to a lesser extent, whether the events giving rise to the cause of action occurred within the reservation. Id.; (citing Montana, 450 U.S. at 1132, (stating "[t]o be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians . . . even on non-Indian fee lands.")). The Ninth Circuit further explained that with respect to instances, such as here, where the defendant in Tribal Court is a nonmember, that Ninth Circuit precedent suggests "that whether tribal courts may exercise jurisdiction over a nonmember defendant may turn on how the claims are related to tribal lands." Id. at 1132. The Ninth Circuit noted several decisions in which tribal jurisdiction over a nonmember defendant based upon events occurring on the reservation was appropriate. Id. (citing McDonald v. Means, 309 F.3d 530 (9^th Cir. 2002) (cause of action arose out of accident on tribal land; tribal court had jurisdiction); Allstate Indem. 191 F.3d 1971 (cause of action arose out of accident on tribal roads, remanded for exhaustion of tribal determination of jurisdiction); and Stock W. Inc., v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221 (9^th Cir. 1989) (contracts with tribe for activities on reservation; tribal court's determination of jurisdiction entitled to comity)). The Ninth Circuit further concluded that the Supreme Court has left open the question of tribal-court jurisdiction over nonmember defendants in general. Id. (citing Hicks, 533 U.S. at 358 n. 2).

2 In the instant case, there is no argument that tribal jurisdiction is appropriate based upon statute or treaty, rather Defendants argue that tribal jurisdiction is appropriate based upon inherent sovereignty of the tribe.

In light of the discussion above, this Court is presented with the question of whether "it is plain" that the Tribal Court lacks jurisdiction over the Plaintiff, a nonmember defendant in White Mountain Apache Tribal Court. See Strate, 520 U.S. at 459. Defendants argue at length in their Motion that the jurisdiction is proper in Tribal Court based upon the tribe's inherent sovereignty. Based upon the events at issue before the Tribal Court, Defendants cite the second exception of Montana in support of tribal jurisdiction; specifically that [Plaintiff's] activities on tribal land have clearly impacted the White Mountain Apache Tribe's political integrity, economic security, health and welfare . . ." (Defendants' Motion, p. 15). In support of the application of the second exception to Montana, the Defendants cite the tribe's interest and ownership of the reservation land that was damaged and is at issue before the Tribal Court. Specifically, the fire damage and destruction to the White Mountain Apache land took place entirely on the tribe's trust lands and not on land held in fee simple for nonmembers. Moreover, Defendants cite the tribe's ownership and regulatory authority over this land. Most notably, the timber that was destroyed. See White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 138 (1980) (stating that "[u]nder federal law, timber on reservation land is owned by the United States for the benefit of the Tribe . . .).³ The Defendants further note that protection of the tribal timber has been further solidified with the Indian Reorganization Act of 1934 ("IRA"). Notably, the purpose of § 6 of the IRA, codified as 25 U.S.C. § 466, is "`to assure a proper and permanent management of the Indian Forest' under modern sustained-yield methods so as to `assure that the Indian forests will be permanently productive and will yield continuous revenues to the tribes.'" United States v. Mitchell, 463 U.S. 206, 221 (1983). In fact, the White Mountain Apache Tribe's constitution provides the tribe with authority "to manage all economic affairs and enterprises of the Tribe including tribal lands, timber, sawmills, . . ." See WMAT Constitution, Article IV, § 1(i). Defendants further contend that the inherent sovereignty is buttressed by the tribe's right to exclude nonmembers from its land. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 144 (1982) (stating that "[n]onmembers who lawfully enter tribal lands remain subject to the tribe's power to exclude them," which includes the power to place conditions on entry, on continued presence, or on reservation conduct.). Thus, in light of the tribe's interest and ownership in the land at issue, Defendants contend that jurisdiction is proper as the tribe possesses inherent sovereignty based upon the power to regulate, manage and protect its forest resources and to enforce its laws.

3 The Supreme Court in White Mountain Apache Tribe noted that Fort Apache Reservation occupies over 1.6 million acres including 720,000 acres of commercial forest.

Conversely, Plaintiff maintains that there is no doubt that jurisdiction does not lie before the Tribal Court. Specifically, Plaintiff argues that neither exception of Montana applies to this case. Most notably, with respect to the second exception ofMontana, Plaintiff argues that Defendants provide no authority suggesting that this exception is appropriate in this case. Rather, Plaintiff contends that Defendants are attempting "to unilaterally expand supreme court case law" (Plaintiff's Response, p. 7) and to permit such jurisdiction would be "a leap beyond reason." (Id. p. 10).

The Court does not agree with Plaintiff that it would be a "leap beyond reason" to provide for Tribal Court jurisdiction over Plaintiff. Specifically, the Court finds that, at the very least, there is a debatable question or colorable claim as to the application of the second exception of the Montana to this case. The Ninth Circuit's thorough analysis of Montana and Ninth Circuit authority in Ford Motor Co v. Todecheene, 394 F.3d 1170 (2005) is instructive in this regard. In Ford Motor, the Ninth Circuit affirmed the district court's finding in a products liability case involving a car accident on tribal land that tribal defendant, Ford Motor, "was not required to exhaust tribal remedies before challenging tribal court jurisdiction in federal court, because jurisdiction was plainly lacking and exhaustion would serve only to delay the proceedings." Id. at 1173. With respect to the second Montana exception, the Ninth Circuit held that it provided no basis for tribal jurisdiction. Id. at 1181-82. In making this determination; however, the Ninth Circuit addressed the dissent's point that "tribal ownership of the land on which an accident occurs is a `significant' factor that may `may sometimes be dispositive.'" Id. at 1182 (emphasis original). The Ninth Circuit noted that "sometimes is not always. And this case is not one of those times when ownership should be considered a dispositive factor in the Montana analysis." Id. More importantly, for this case's purposes, the Ninth Circuit went on to explain that "[t]here is absolutely nothing in the record to support the premise that the status of the land impacted potential liability in this case. This case does not involve encroachment upon tribal land, damage to tribal land, interference with the use of tribal land, or any other effect upon tribal land that might prove dispositive." Id. Finally, in rejecting the dissent's reliance on McDonald, a case in which the Ninth Circuit held tribal jurisdiction to be proper over a nonmember, the Ninth Circuit noted that McDonald involved a ruling where the nonmember defendant's horse had wandered onto the roads of the reservation, thereby impacting the interest of the tribe in keeping its roadways free from obstruction. No such circumstances existed in Todecheene. Id.

Unlike the situation presented in Todecheene, this case does involve, heavily, the tribal land. The tribal land at issue, containing timber which the White Mountain Apache Tribe clearly have an interest in, is at the heart of this litigation. UnlikeTodecheene, this case does involve "damage to tribal land" and the "interference with the use of the tribal land." Id. Specifically, a significant portion of the White Mountain Apache Tribe's reservation was burned and damaged by the Rodeo-Chediski fire which is alleged to be attributable, at least in part, to Plaintiff's actionable conduct. Moreover, the White Mountain Apache Tribe's useage of such acreage has undoubtedly been impacted. Todecheene, provides distinguishing instructive authority that demonstrates that ownership of the land is significantly relevant to this litigation. As such, the Court finds that, at the very least, there is a debatable question or colorable claim as to whether jurisdiction lies in the Tribal Court. The second exception of Montana provides tribes with the inherent power to exercise civil authority over nonmembers where the conduct "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." The conduct at issue occurring on the reservation due to the alleged actions of the Plaintiff potentially threatens the economic security of the tribe based upon the interference of the use of the tribe's land and timber and the overall welfare of the tribe as such resources are material to the tribe's stability. As such, it is debatable that the tribe retains jurisdiction to enforce its regulatory authority over the Plaintiff. Because Plaintiff did not exhaust her tribal remedies before coming to this Court, the Court need not go any further in regards to a final determination as to whether jurisdiction is proper before the Tribal Court.

(2) Exceptions to Tribal Exhaustion

In addition to challenging tribal jurisdiction on the basis that it is plainly lacking, Plaintiff also argues that the three applicable exceptions to tribal exhaustion apply to this case. InNational Farmers, 471 U.S. 845, 857, n. 21 (1985), the Supreme Court noted that exhaustion would not be required where: (1) the assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith; (2) where the action is patently violative of express jurisdictional prohibitions; or (3) where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court's jurisdiction.

With respect to the first exception, Plaintiff argues tribal jurisdiction is motivated by a desire to harass or is in bad faith. Plaintiff relies on the situation involving Mr. Leonard Gregg, a member of the White Mountain Apache Tribe and firefighter who intentionally set fires that led to the Rodeo fire that eventually merged with the Chediski fire. Plaintiff takes issue with the fact that even though Mr. Gregg is an enrolled member of the White Mountain Apache Tribe and intentionally caused the Rodeo fire, he has not been charged civilly or criminally in Tribal Court. Plaintiff uses Mr. Gregg's case to suggest that Plaintiff is being disparately treated and prosecuted for relief that should, at least in part, be directed at Mr. Gregg.

The Court; however, does not find persuasive Plaintiff's reliance on Mr. Gregg's situation. As noted by the Parties, Mr. Gregg was convicted in this District for crimes resulting from his actions causing the Rodeo fire. CR 02-661-PHX-JAT (Dkt. #77). Notably, Mr. Gregg in addition to his one hundred and twenty (120) month term of imprisonment with the Bureau of Prisons has also been ordered to pay restitution in the amount of $27,882,502. The Court struggles to see how the situation of Mr. Gregg demonstrates or suggests that tribal civil jurisdiction over Plaintiff for actions that resulted in damage to land owned by the White Mountain Apache Tribe is motivated by a desire to harass or is in bad faith. At best, Plaintiff's argument is based upon speculation.

As to the second exception, Plaintiff argues that the holding in Montana v. United States, 450 U.S. 544 (1981) and its progeny demonstrates the jurisdiction before the Tribal Court is patently violative of express jurisdictional prohibitions. However, this argument has been addressed above by the Court and in this Court's view, jurisdiction before the Tribal Court is not "patently violative" of jurisdictional prohibitions. Rather, there is a debatable question as to the propriety of jurisdiction over Plaintiff in Tribal Court based upon her actions on the White Mountain Apache Tribe's reservation and resulting damage. Thus, the Court does not find Plaintiff's argument as to the second exhaustion exception persuasive.

Lastly, Plaintiff argues that exhaustion would be futile because of the lack of an adequate opportunity to challenge the Tribal Court's jurisdiction. Again, Plaintiff takes issue with the procedural history of her initial challenge before the trial level Tribal Court, which rejected her jurisdictional challenge and the Tribal appellate court's dismissal of Plaintiff's appeal for lack of jurisdiction. Plaintiff argues that it would be inequitable to require her to go through the entire case at the trial level and then along with the other issues re-litigate them to the Tribal Court of Appeals. The Court; however, does not find Plaintiff's argument persuasive as it contrary to the Supreme Court's precedent established in Iowa Mutual, 480 U.S. at 17. As noted above, the Supreme Court was clear in stating in pertinent part:

[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.

Id.

In Iowa Mutual, the Supreme Court noted that while the tribal court had made an initial determination as to jurisdiction, the insurer defendant in tribal court, had not yet obtained appellate review as provided in the Blackfeet tribal code. Thus, the Supreme Court stated "[u]ntil 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. The Court finds this language to be clear and provides against Plaintiff's argument. Due to the Rules of Appellate Procedure for the White Mountain Apache Code, it does not appear that the White Mountain Apache Court of Appeals has even had the opportunity to entertain Plaintiff's appeal as it only has jurisdiction over "final decisions and orders." See Rule 2A, White Mountain Apache Rules of Appellate Procedure; (Defendants' Motion, Exhibit C). Moreover, as noted above, there are compelling reasons for the federal courts to allow the tribal court systems the first opportunity to address such issues, including the "orderly administration of justice in federal court . . ." National Farmers, 471 U.S. at 855-57. In addition, by allowing the tribal courts a full opportunity to determine jurisdiction it provides the tribal courts with the ability "to rectify any errors it may have made." Id. at 856-57. As such, while it is clear that Plaintiff takes exception with the trial Tribal Court's ruling with respect to jurisdiction over Plaintiff; this determination needs to be taken to the Tribal appellate court in accordance with the Tribal appellate rules so that the appellate court can have an opportunity to address the jurisdictional issue. Until that time, Plaintiff's action in this Court is premature.

In sum, the Court finds that Plaintiff has failed to exhaust her tribal remedies prior to bringing the instant suit. In addition, there is a debatable question or colorable claim as to the propriety of jurisdiction over Plaintiff in Tribal Court exemplifying Plaintiff's obligation to exhaust tribal remedies prior to bringing the instant suit. In addition, the Court does not find any applicable exception justifying Plaintiff's failure to exhaust.

B. Future Handling

The final determination this Court must make is whether to dismiss Plaintiff's suit before this Court or to stay the present matter pending a determination from the Tribal Court. See SAC, 434 F.3d at 1131, n. 1 (stating "[o]rdinarily, so long as there is a `colorable question' whether a tribal court has subject matter jurisdiction, federal courts will stay or dismiss an action in federal court `to permit a tribal court to determine in the first instance whether it has the power to exercise subject-matter jurisdiction in a civil dispute between Indians and non-Indians that arises on an Indian reservation.'") (citations omitted).⁴ For instance, in Stock West, 964 F.2d at 920, the Ninth Circuit affirmed the district court's decision to dismiss the lawsuit filed by a nonmember corporation as a matter of comity where the tribal court had not yet resolved the questions of tribal sovereignty.⁵ Additionally, the Supreme Court has held that whether the matter should be dismissed or stayed is a question reserved for the district court's discretion. See Nat'l Farmers, 471 U.S. at 857. In this Court's view, and in the interests of comity, dismissal of the Plaintiff's suit is appropriate. Plaintiff has identified no prejudice resulting from such determination and can properly challenge jurisdiction once the matter is ripe for federal district court consideration.

4 Notably, in SAC, the Ninth Circuit made clear that the district court did not issue its decision that tribal court had jurisdiction until the plaintiff nonmember had exhausted his appeals in tribal court. Id. at 1131, n. 1.

5 The Ninth Circuit subsequently held that the district should have stayed the action based upon the alternative ground for dismissal of sovereign immunity. Id.

Accordingly,

IT IS HEREBY ORDERED granting Defendants' Second Amended Motion to Dismiss. (Dkt. #6). Plaintiff's action is dismissed without prejudice.

IT IS FURTHER ORDERED that the Clerk enter judgment accordingly.