Tribal Remedies, Exhaustion, and State Courts

American Indian Law Review Volume 44 Number 2 2020 Tribal Remedies, Exhaustion, and State Courts Pete Heidepriem Follow this and additional works at: https://digitalcommons.law.ou.edu/ailr Part of the Indian and Aboriginal Law Commons Recommended Citation Pete Heidepriem, Tribal Remedies, Exhaustion, and State Courts, 44 AM. INDIAN L. REV. 241 (2020), https://digitalcommons.law.ou.edu/ailr/vol44/iss2/3 This Article is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact . TRIBAL REMEDIES, EXHAUSTION, AND STATE COURTS Pete Heidepriem* A bedrock feature of sovereignty is a court exercising jurisdiction. 1 For Native nations, this is at risk. Through its judicial institution, a sovereign nation supports the force and effect of its laws, promotes respect for authority, and maintains culture.2 A rule in federal law, which this Article calls the “tribal remedies doctrine,” provides vital support to tribal judiciaries: it requires litigants to exhaust tribal court remedies before pursuing claims in a nontribal court. While the doctrine is mandatory in federal court, state courts across the country have shown different perspectives on whether it applies to them. With growing disorder among state courts, tribal court authority varies throughout the country. Considering the importance of courts in Native nations, this result is not acceptable. Establishing a uniform approach is critical to supporting tribal sovereignty and preventing arbitrary geography from determining each tribe’s authority. U.S. Supreme Court precedent, with special attention to Iowa Mutual, requires state courts to apply the tribal remedies doctrine. Separating the doctrine from the legal rules of administrative exhaustion and abstention confirms this conclusion and reveals that a pending tribal court action is not required before applying the tribal remedies doctrine in state courts. I. Introduction In 1985, the United States Supreme Court decided National Farmers and first announced the rule that litigants must exhaust tribal remedies before ` * Pete Heidepriem is an attorney in South Dakota, where he litigates a variety of civil cases and serves as a tribal prosecutor for the Lower Brule Sioux Tribe. For thoughtful edits and interest in this article, thanks to the American Indian Law Review. Thanks as well to the people who took the time to read this in its very early forms: Judge Jeffrey Viken, Judge Patricia Sullivan, Eric Schlimgen, Alexander Ball, and the sharpest reader the author knows, Kelly Wong. 1. See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14–18 (1987). 2. Robert D. Cooter & Wolfgang Fikentscher, Indian Common Law: The Role of Custom in American Indian Tribal Courts (Part I of II), 46 AM. J. COMP. L. 287, 293 (1998); Frank Pommersheim & Sherman Marshall, Liberation, Dreams, and Hard Work: An Essay on Tribal Court Jurisprudence, 1992 WIS. L. REV. 411, 429–34. 241 Published by University of Oklahoma College of Law Digital Commons, 2020 242 AMERICAN INDIAN LAW REVIEW [Vol. 44 pressing their cases in a nontribal court.3 Most courts now refer to the rule as the tribal court exhaustion doctrine. Since National Farmers, the Supreme Court has provided further comment on the rule only a few times. 4 As lower courts applied the doctrine, its general outline and underlying rationales became settled law, but the finer contours proved to be less straightforward. Two questions emerged as particularly divisive. First, does the doctrine, originally directed at federal courts, apply to state courts? And second, is a pending tribal court suit a prerequisite to invoking the doctrine? Courts and scholars come to many different conclusions on these questions. To varying degrees, courts in eighteen states have substantively addressed the doctrine’s applicability.5 The Utah Supreme Court’s 2017 decision in Harvey v. Ute Tribe is the latest comprehensive analysis of this question in a state court.6 Many more state and federal court decisions sort through the necessity of a pending case in tribal court. Since 2009, the Supreme Court declined to hear two cases presenting the issue of the doctrine’s state court application.7 The most recent instance was Harvey, and before the Supreme Court denied that petition for writ of certiorari in January 2019, it issued an order inviting a brief from the Office of the United States Solicitor General setting out the views of the United States. 8 The Solicitor General filed a brief in December 2018, recommending denial of the petition and providing thorough and previously unknown positions on these two key issues of the doctrine; specifically, that the doctrine might apply to state courts, and that it likely requires an already-filed tribal case.9 Names are important, so a point about them must be made at the outset. Sometimes courts establish and label a legal doctrine, and as the doctrine develops, a gap grows between the name and the substantive principles. For 3. Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 855–57 (1985). 4. See, e.g., Iowa Mut., 480 U.S. at 14–19; Strate v. A-1 Contractors, 520 U.S. 438, 448–53 (1997); see also Nevada v. Hicks, 533 U.S. 353, 369 (2001); El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 483–85 (1999). 5. See infra Part III; see infra Appendix I. 6. Harvey v. Ute Indian Tribe of Uintah & Ouray Reservation, 2017 UT 75, 416 P.3d 401, cert. denied, 139 S. Ct. 784 (2019). 7. Harvey, 139 S. Ct. 784; Coushatta Tribe of La. v. Meyer & Assocs., Inc., 556 U.S. 1166 (2009). 8. U.S. Supreme Court, Order List: 585 U.S. (June 25, 2018), https://www.supreme court.gov/orders/courtorders/062518zor_g3bh.pdf. 9. Brief for the United States as Amicus Curiae, Harvey v. UTE Indian Tribe of the Uintah & Ouray Reservation, 416 P.3d 401 (2019) (No. 17-1301), 2018 WL 6382963, at *12, *18; see infra Section III.D.5(a)(2). https://digitalcommons.law.ou.edu/ailr/vol44/iss2/3 No. 2] TRIBAL REMEDIES, EXHAUSTION, AND STATE COURTS 243 instance, the doctrine of fraudulent joinder is widely described as a misnomer. 10 It relates to pleading strategies to avoid federal jurisdiction, not actual fraud.11 Similarly, using the title “exhaustion of tribal remedies” breeds confusion because it brings to mind the well-established doctrine of exhaustion of administrative remedies. 12 This disconnect has prompted scholars and judges to frequently discuss them together.13 Later, this Article conducts a side-by-side analysis of the two doctrines and explains some core distinctions.14 From this point on, the Article will use the terms “tribal remedies doctrine,” “tribal exhaustion,” or simply, “the doctrine” to address this issue. The reasoning that follows seeks to provide a basis for this name adjustment and highlight (...truncated)