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Norton v. Ute Indian Tribe of Uintah and Ouray Reservation

United States Court of Appeals, Tenth Circuit

July 11, 2017

UTE INDIAN TRIBE OF THE UINTAH AND OURAY RESERVATION, a federally recognized Indian Tribe; BUSINESS COMMITTEE FOR THE UTE TRIBE OF THE UINTAH AND OURAY RESERVATION, in its official capacity; UTE TRIBAL COURT OF THE UINTAH AND OURAY RESERVATION; HONORABLE WILLIAM REYNOLDS, in his official capacity as Acting Chief Judge of the Ute Tribal Court; DEBRA JONES, individually and as the natural parent of Todd R. Murray and as personal representative of the Estate of Todd R. Murray; ARDEN POST, individually and as the natural parent of Todd R. Murray, Defendants - Appellants.

         Appeal from the United States District Court for the District of Utah (D.C. No. 2:15-CV-00300-DB)

          Jeffrey S. Rasmussen (Thomas W. Fredericks, Frances C. Bassett, and Jeremy J. Patterson, with him on the briefs), Fredericks Peebles & Morgan, Louisville, Colorado for Defendants-Appellants.

          Jesse C. Trentadue (Britton R. Butterfield, with him on the brief), Suitter Axland, PLLC, Salt Lake City, Utah, for Anthoney Byron, Bevan Watkins, Gary Jensen, Keith Campbell, Troy Slaugh, and Vance Norton, Plaintiffs-Appellees.

          J. Clifford Petersen, Assistant Utah Attorney General (Scott D. Cheney, Assistant Utah Attorney General, and Sean D. Reyes, Utah Attorney General, with him on the brief), Office of the Attorney General for the State of Utah, Salt Lake City, Utah, for Craig Young, Dave Swenson, Jeff Chugg, Rex Olsen, and Sean Davis, Plaintiffs-Appellees.

          Before LUCERO, McKAY, and BACHARACH, Circuit Judges.


         This appeal arises from the death of Todd Murray, a Ute tribal member, following a police pursuit on the Uintah and Ouray Indian Reservation (the "Reservation"). Murray's parents, his estate, and the Ute Indian Tribe (the "Tribal Plaintiffs") sued the officers involved in Ute Tribal Court (the "Tribal Court") for wrongful death, trespass, and other torts. The officers then filed suit in federal court against the Tribe, its Business Committee, the Tribal Court, the Acting Chief Judge of the Tribal Court, and the other Tribal Plaintiffs. The district court enjoined the Tribal Court action, holding that Nevada v. Hicks, 533 U.S. 353 (2001), bars tribal civil jurisdiction over the officers, making exhaustion of tribal court remedies unnecessary. It further determined that certain defendants were not entitled to tribal sovereign immunity.

         We conclude that the district court erred in excusing the officers from exhaustion of tribal remedies with respect to the Tribe's trespass claim, which alleges that the officers asserted superior authority over tribal lands and barred a tribal official from accessing the scene of the Murray shooting. Although we do not decide today whether the Tribal Court possesses jurisdiction over that claim, exhaustion is required unless tribal court jurisdiction is "automatically foreclosed." Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 855 (1985). The officers have not made this showing for the trespass claim because that claim at least arguably implicates the Tribe's core sovereign rights to exclude and to self-govern. We further conclude that this claim is not barred by Hicks, which excused exhaustion based on a state's overriding interest in investigating off-reservation offenses. Such an interest is not at play in this case. Murray was not suspected of committing any off-reservation violation, and the officers were not cross-deputized to enforce state law on the Reservation. However, we agree with the district court that the remaining Tribal Court claims are not subject to tribal jurisdiction and thus exhaustion was unnecessary.

         We also affirm the district court's conclusion that the Acting Chief Judge of the Tribal Court is not protected by tribal sovereign immunity under the doctrine of Ex Parte Young, 209 U.S. 123 (1908). But we reverse the district court's denial of tribal sovereign immunity as to the Tribe, its Business Committee, and the Tribal Court. Under Ex Parte Young, officials are subject to claims for prospective relief, but the doctrine does not apply to governments and their subdivisions. See Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 496 (10th Cir. 1998).

         Exercising jurisdiction under 28 U.S.C. §§ 1291 and 1292(a)(1), we vacate in part and remand for further proceedings.


         Todd Murray, a Ute tribal member, died on April 1, 2007, following a police pursuit. Murray was a passenger in a vehicle that Utah State Trooper Dave Swenson attempted to stop for speeding near to, but outside of, the Reservation. Uriah Kurip, the driver, failed to stop and turned onto the Reservation. After an approximately thirty-minute chase, the vehicle ran off the highway and Kurip and Murray jumped out. Swenson exited his patrol car with his gun drawn and ordered Kurip and Murray to the ground. Kurip and Murray fled in opposite directions. Swenson apprehended Kurip quickly without further incident.

         Shortly after Swenson returned to his vehicle with Kurip, Vernal City Police Officer Vance Norton, Utah Highway Patrol Trooper Craig Young, and Uintah County Deputy Anthoney Bryon arrived on the scene. None of these officers, including Swenson, were cross-deputized to exercise law enforcement authority on the Reservation. When the additional officers arrived, they began searching for Murray. Norton pursued Murray over tribal trust lands located more than twenty-five miles within the Reservation. After finding Murray, Norton ordered him to the ground but Murray did not obey. Norton fired two shots toward Murray. Murray died from a gunshot wound to the head. The parties disagree whether Murray shot himself or was shot by officers. Raymond Wissiup, a Ute tribal member and certified law enforcement officer, arrived shortly thereafter, but the officers prevented him from accessing the scene.

         In 2009, Murray's parents and his estate filed suit in state court against the officers and their employers, asserting common law torts and claims under 42 U.S.C. § 1983. After the suit was removed to federal court, the district court granted summary judgment in favor of the officers on the § 1983 claims and declined to exercise supplemental jurisdiction over the state law claims. We affirmed in Jones v. Norton, 809 F.3d 564 (10th Cir. 2015).

         While that appeal was pending, Murray's parents, his estate, and the Tribe sued the officers in Tribal Court, solely asserting tort claims. The officers then filed suit in federal district court against the Tribe, its Business Committee, the Tribal Court, William Reynolds in his official capacity as Acting Chief Judge of the Tribal Court, and Murray's parents.[1] They moved for a preliminary injunction to halt the Tribal Court action. Reynolds and the Tribal Court moved to dismiss based on failure to exhaust Tribal Court remedies and sovereign immunity. The Tribe and its Business Committee filed a separate motion to dismiss, contending that all of the arguments set forth in the prior motion applied with equal force and service was improper.

         Both motions to dismiss were denied and the officers' motion for a preliminary injunction was granted by the district court. It concluded that the Tribal Court clearly lacked civil jurisdiction over the officers, and thus exhaustion of tribal court remedies was not required. The court further held that service was proper. Regarding sovereign immunity, the court analyzed the issue only with respect to Reynolds and the Tribal Court, ruling that those two parties were not immune from suit. This timely appeal followed.


         We review a district court's grant of a preliminary injunction for abuse of discretion. Dine Citizens Against Ruining Our Env't v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016). In conducting this analysis, we review "the district court's factual findings for clear error and its conclusions of law de novo." Fish v. Kobach, 840 F.3d 710, 723 (10th Cir. 2016). In granting a preliminary injunction, the district court concluded that the officers were not required to exhaust tribal remedies because it is "clear that the tribal court lacks jurisdiction." Burrell v. Armijo, 456 F.3d 1159, 1168 (10th Cir. 2006). "[T]he proper scope of the tribal exhaustion rule" is a legal issue we review de novo. Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1501 (10th Cir. 1997).

         "[F]ederal courts typically should abstain from hearing cases that challenge tribal court jurisdiction until tribal court remedies, including tribal appellate review, are exhausted." Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1149 (10th Cir. 2011) (quotation omitted). This rule is grounded in federal policies supporting tribal sovereignty, including: "(1) furthering congressional policy of supporting tribal self-government; (2) promoting the orderly administration of justice by allowing a full record to be developed in the tribal court; and (3) obtaining the benefit of tribal expertise if further review becomes necessary." Kerr-McGee, 115 F.3d at 1507 (citing Nat'l Farmers, 471 U.S. at 856-57). Because "the existence and extent of a tribal court's jurisdiction will require a careful examination of tribal sovereignty [and] the extent to which that sovereignty has been altered, divested, or diminished . . . that examination should be conducted in the first instance in the Tribal Court itself." Nat'l Farmers, 471 U.S. at 855-56; see also Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 16 (1987) ("[R]espect for tribal legal institutions requires that they be given a full opportunity to consider the issues before them and to rectify any errors." (quotations omitted)).

         As a prudential rule based on comity, the tribal exhaustion requirement is subject to several exceptions:

(1) where an assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith; (2) where the tribal court action is patently violative of express jurisdictional prohibitions; (3) where exhaustion would be futile because of the lack of an adequate opportunity to challenge the tribal court's jurisdiction; (4) when it is plain that no federal grant provides for tribal governance of nonmembers' conduct on land covered by the main rule established in Montana v. United States, 450 U.S. 544 (1981); or (5) it ...

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