VANCE NORTON; GARY JENSEN; KEITH CAMPBELL; ANTHONEY BYRON; BEVAN WATKINS; TROY SLAUGH; DAVE SWENSON; JEFF CHUGG; REX OLSEN; CRAIG YOUNG; SEAN DAVIS, Plaintiffs - Appellees,
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.
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
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.
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.
LUCERO, McKAY, and BACHARACH, Circuit Judges.
LUCERO, CIRCUIT JUDGE.
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
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.
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.
jurisdiction under 28 U.S.C. §§ 1291 and
1292(a)(1), we vacate in part and remand for further
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.
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.
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).
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. 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.
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.
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).
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."
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 ...