throbber
UNITED STATES COURT OF APPEALS
`FOR THE EIGHTH CIRCUIT
`Minnesota Department of Natural
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`Resources, Commissioner Sarah
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`Strommen, Deputy Commissioner Barb
`Naramore, DNR Section Manager
`Randall Doneen, Unnamed DNR
`Conservation Officers 1-10,
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`Plaintiffs,
`v.
`The White Earth Band of Ojibwe and
`Hon. David A. DeGroat, in his official
`capacity as Judge of the White Earth
`Band of Ojibwe Tribal Court,
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`Defendants
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`Case No. 21-3050
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`DNR’S MOTION FOR A
`PRELIMINARY INJUNCTION
`AND EXPEDITED BRIEFING
`AND REVIEW
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`This case arises from an extraordinary, unprecedented, and plainly prohibited
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`attempt by the White Earth Band of Ojibwe (“the Band”) to sue Minnesota
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`Department of Natural Resources’ officials (“DNR”) in tribal court for an order
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`requiring the officials to revoke a state-issued permit related to a pipeline
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`replacement project – no part of which crosses the Band’s reservation.
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`In response to the unprecedented tribal suit, DNR filed a motion to dismiss in
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`tribal court for lack of subject matter jurisdiction. The tribal court denied the motion.
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`DNR then filed a complaint and motion for a preliminary injunction in federal
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`district court to enjoin further proceedings in tribal court. DNR named the Band and
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`Appellate Case: 21-3050 Page: 1 Date Filed: 09/13/2021 Entry ID: 5075883
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`Judge David A. DeGroat in his official capacity as defendants. Judge DeGroat is the
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`Chief Judge of the tribal court and (at the time of the complaint) was the judge
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`presiding over the case. The district court heard arguments on the DNR’s motion
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`for a preliminary injunction – but then sua sponte dismissed the federal action
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`holding that both the Band and Judge DeGroat have sovereign immunity from suit
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`in federal court.
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`While DNR agrees the Band has sovereign immunity, Judge DeGroat does
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`not. See, e.g., Kodiak Oil & Gas (USA) Inc. v. Burr, 932 F.3d 1125, 1139 (8th Cir.
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`2019). DNR appeals to this Court for reversal of the district court’s dismissal of
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`Judge DeGroat. It also files this motion for preliminary relief. The tribal court has
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`scheduled a September 20 hearing on the Band’s motion for a preliminary injunction
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`in tribal court, so the need to protect DNR’s rights is urgent. With this motion, DNR
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`seeks three forms of expedited relief: (1) an injunction while this motion is resolved,
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`(2) an injunction while the appeal proceeds; and (3) expedited handling of this
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`appeal.
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`BACKGROUND
`The Band has been litigating against agency issued permits and certifications
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`for the Line 3 project in state and federal courts for years. See In re Enbrdige Line 3
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`Replacement Project, Case No. A20-1513, 2021 WL 3853422, *1 n.1 (Minn.
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`Ct. App. Aug. 30, 2021); Red Lake Band of Chippewa Indians v. U.S. Army Corps
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`of Engineers, 338 F.R.D. 1 (Dist. D.C. Jan. 9, 2021). Doubtlessly unsatisfied with
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`the result, the Band now pursues an action in tribal court.
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`On August 4th, Manoomin1, the White Earth Band of Ojibwe, its tribal
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`council, and a mix of individual band members and non-band members filed suit
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`against the DNR and DNR officials in tribal court. (Dkt. 1-1, ¶¶ 20-40.)2 The Band
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`named DNR and DNR officials in their official and individual capacities as
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`defendants. (Dkt. 1-1, ¶¶ 20-40.)
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`Much of the Band’s tribal complaint concerns its argument that DNR violated
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`the Treaty with the Chippewa, 1855 (“the 1855 Treaty”) by issuing groundwater
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`appropriation permits connected to construction of the Line 3 pipeline replacement
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`project (“Line 3”). (Id. ¶¶ 1, 46-57.) No part of Line 3 crosses the Band’s
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`reservation. (Dkt. 7 ¶ 2.) All the relief the Band seeks is directed to DNR or its
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`officials in their official capacities. (Id.) The Band seeks no relief that any official
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`could offer in their individual capacity. (Id.)
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`In the thirty-seven day span between the filing of the tribal suit and the filing
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`of this appeal, DNR faithfully but unsuccessfully: (1) moved the tribal court to
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`dismiss the tribal suit for lack of subject matter jurisdiction; (2) moved the tribal
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`1 Manoomin is wild rice, which in the Band’s tribal court can bring suit. See White
`Earth Band of Ojibwe code available here: https://whiteearth.com/divisions/
`judicial/ forms
`2 “Dkt.” references are to the district court docket entries.
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`3
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`court for a stay of proceedings until a final determination of the tribal court’s subject
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`matter jurisdiction could be determined; (3) moved the federal district court for a
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`preliminary injunction against further proceedings in tribal court; and (4) moved the
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`federal district court to reconsider its sua sponte dismissal. (Dkts. 1-2, 8 ¶ 3, 16,
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`16-1, 20, 25.)
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`On September 3, the federal district court dismissed sua sponte, holding that
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`under Fort Yates Pub. Sch. Dist. No. 4 v. Murphy, 786 F.3d 662 (8th Cir. 2015) the
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`Band and Judge DeGroat have sovereign immunity from suit. (Dkt. 20.) On
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`September 5, DNR sought leave to file a motion to reconsider the dismissal of Judge
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`DeGroat3 – arguing that the issue of sovereign immunity had not been raised by
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`Judge DeGroat, and the district court’s sua sponte ruling was clearly erroneous.
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`(Dkt. 21.) DNR explained that while suits directly naming a tribal court are not
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`allowed, suits against tribal judges in their official capacity are allowed pursuant to
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`Ex Parte Young – citing this Court’s recent ruling on this exact issue in Kodiak Oil
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`& Gas (USA) Inc. v. Burr, 932 F.3d 1125, 1139 (8th Cir. 2019). (Dkt. 21.) On
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`September 10, the district court denied DNR’s request for leave to file a motion to
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`reconsider. (Dkt. 25.) DNR filed this appeal the same day.
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`3 The Band has sovereign immunity, which it can waive. DNR does not contest the
`dismissal of the Band.
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`The tribal court has set an evidentiary hearing for September 20 on the Band’s
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`request for a preliminary injunction directed to DNR officials. (Dkt. 24.) Among
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`the relief the Band appears to seek is an injunction requiring DNR to rescind all
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`state-issued water appropriation permits related to Line 3. (Dkt. 1-1 at 46-47.) At
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`minimum, this would bring the two sovereigns into serious conflict with one another.
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`ARGUMENT
`At the heart of this motion are two simple propositions. First, no federal case
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`has ever held that tribal courts have jurisdiction over state officials engaged in the
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`administration of state regulatory programs, let alone for projects located off-
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`reservation. Second, the express purpose of Ex parte Young is to allow suits for
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`prospective injunctive relief against state or tribal officials sued in their official
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`capacities in federal court where their conduct violates federal law. This includes
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`suits to prevent tribal courts from exercising jurisdiction that they do not have. The
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`principle is well-settled and was recently reaffirmed by this court in Kodiak – a case
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`indistinguishable from this one.
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`The issue immediately before the Court on this motion is what relief should
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`be afforded to DNR while this appeal is pending given the extraordinary nature of
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`the tribal suit and the district court’s clearly erroneous dismissal. DNR requests
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`three concurrent forms of relief: (1) an injunction while this motion is resolved,
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`(2) an injunction while the appeal proceeds; and (3) expedited handling of this
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`appeal.
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`I.
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`APPLICABLE LAW.
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`This Court has clear authority under its rules to both expedite the appeal and
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`enter an injunction prohibiting further tribal court proceedings. Fed. R. App. Proc.
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`2, 8. Under Rule 2, this Court has the authority to suspend any of its procedural
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`rules to expedite its decision. Under Rule 8, this Court has the authority to enter
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`injunctions pending the disposition of the appeal.
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`In granting injunctive relief under Rule 8, the Eighth Circuit considers the
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`Dataphase factors. See, e.g., Fresenius Kabi USA, LLC v. Nebraska, 733 F. App’x
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`871, 872 (8th Cir. 2018); Brakebill v. Jaeger, 905 F.3d 553, 557 (8th Cir. 2018).
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`The Dataphase factors are: (1) the threat of irreparable harm to the moving party;
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`(2) the balance between this harm and the injury that granting the injunction would
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`inflict on the non-moving party; (3) the moving party’s likelihood of success on the
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`merits; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d
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`109, 113 (8th Cir. 1981). Likelihood-of-success factor is generally the most
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`important of the four Dataphase factors. See, e.g., Jones v. Jengley, 947 F.3d 1100,
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`1105 (8th Cir. 2020). It does not matter whether the issue comes to this Court on an
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`appeal from an order denying or granting an injunction, the analysis is the same.
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`Walker v. Lockhart, 678 F.2d 68, 70 (8th Cir. 1982).
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`Normally, “review of a preliminary injunction is layered: fact findings are
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`reviewed for clear error, legal conclusions are reviewed de novo, and the ‘ultimate
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`decision
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`to grant
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`the
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`injunction’
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`is reviewed for abuse of discretion.”
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`Comprehensive Health of Planned Parenthood Great Plains v. Hawley,
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`903 F.3d 750, 754 (2018). Here, however, the district court did not make any
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`findings of fact, ruling exclusively on the basis of its conclusion that both defendants
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`had sovereign immunity. (Dkt. 20.) As a result, the district court ruled exclusively
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`on questions of law, which this Court review de novo. Hawley, 903 F.3d at 754.
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`Moreover, this Court reviews all questions involving the jurisdiction of tribal courts
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`de novo. Nord v. Kelly, 520 F.3d 848, 852 (8th Cir. 2008) (“Determining the extent
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`to which an Indian tribe has the power to compel a non-Indian to submit to the civil
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`jurisdiction of a tribal court is a question of federal law, and we review the issue
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`de novo.”) (citations omitted). No deference therefore is owed to the district court
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`on any element of this appeal.
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`II. THE DNR IS LIKELY TO SUCCEED ON MERITS OF ITS CLAIMS ON APPEAL.
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`Because of the procedural posture of this case, there are two distinct issues
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`that the Court must review concerning the merits. First, the Court must determine if
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`DNR is likely to succeed with the merits of its claim that Chief Judge DeGroat lacks
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`sovereign immunity from suit in federal court when sued in his official capacity.
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`Assuming the Court finds DNR will likely prevail on this issue, the Court must then
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`determine if DNR is likely to succeed on the merits of its claims that its officials are
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`not subject to suit in tribal court on the claims pled. The Court should find that DNR
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`is likely to prevail with both arguments.
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`A.
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`Judge DeGroat, in his Official Capacity, Does Not Have Sovereign
`Immunity from Suit in this Court.
`This Court has made clear that the proper vehicle for a suit challenging tribal
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`court jurisdiction is an official capacity lawsuit naming the sitting judge or chief
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`judge of the relevant tribal court.4 Kodiak, 932 F.3d at 1131; see also Nord, 520
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`F.3d at 848. This is because under Ex parte Young, tribal court officials sued in their
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`official capacities do not have sovereign immunity from suit challenging tribal court
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`jurisdiction. See, e.g., Kodiak, 932 F.3d at 1131; cf. Fort Yates Pub. Sch. Dist. No.
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`4 v. Murphy ex rel. C.M.B., 786 F.3d 662, 670 (8th Cir. 2015) (dismissing claim
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`brought against tribal court rather than tribal official in an official capacity).
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`In dismissing Chief Judge DeGroat and denying the DNR’s motion for
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`preliminary injunction, the district court initially misconstrued DNR’s official
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`capacity suit against Judge DeGroat as a prohibited suit against the tribal court itself.
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`However, the case the district court relied on to dismiss, Fort Yates, is inapposite
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`because there the plaintiff there sued the tribal court, not the tribal judge in an official
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`capacity. Fort Yates, 786 F.3d at 670.
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`4 Judge DeGroat is the Chief Judge of the tribal court and was the sitting judge at the
`time this suit was commenced.
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`The Eighth Circuit (and every other court in the federal system that has
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`considered the issue) expressly allows suits to proceed against tribal judges in their
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`official capacities to challenge tribal court jurisdiction, so long as only prospective
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`non-monetary relief is sought. Kodiak, 932 F.3d at 1131; Crowe & Dunlevy, P.C. v.
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`Stidham, 640 F.3d 1140, 1156 (10th Cir. 2011); Tamiami Partners, ltd. v.
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`Miccosukee Tribe of Indians of Florida, 63 F.3d 1030, 1051 (11th Cir. 1995).5
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`This Court’s 2019 Kodiak decision is directly on point. In Kodiak, tribal
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`members sued non-tribal oil and gas companies in tribal courts alleging that the
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`companies were breaching gas leases. 932 F.3d at 1130. The companies filed
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`federal actions (that were consolidated) alleging the tribal courts lacked jurisdiction,
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`and seeking declaratory and injunctive relief – including preliminary injunctions. Id.
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`Unlike the Fort Yates plaintiffs, the Kodiak plaintiffs correctly named the chief
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`judges of the tribal courts in their official capacities as the federal defendants, rather
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`than the courts themselves. Id.
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`The case came to this Court on an appeal from the entry of a preliminary
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`injunction against the tribal judges, who argued they had sovereign immunity from
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`the suit – the exact basis for the dismissal here. Id. at 1131. The Eighth Circuit
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`emphatically rejected the argument:
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`5 Conversely, DNR was unable to locate any case in which a federal court dismissed
`a tribal court judge sued in an official capacity from a case brought to challenge
`tribal court jurisdiction. The district court cites none.
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`Here, the oil and gas companies seek only declaratory and injunctive
`relief, not damages. They also contend the tribal court officials
`exceeded the scope of their lawful authority. Thus, this case falls
`squarely within the Ex parte Young doctrine and is not barred by tribal
`sovereign immunity.
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`Id. Indeed, the customary practice in suits like this one is to name the judge presiding
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`over the tribal matter, or the chief judge of the tribal court (or both), in an official
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`capacity. See, e.g., Nevada v. Hicks, 533 U.S. 353, 355 n.1 (2001), Strate v. A-1
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`Contractors, 520 U.S. 438, 444 (1997); Kodiak, supra. at 1131; Nord, supra. at 851.
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`The district court failed to address, let alone distinguish Kodiak in its order denying
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`DNR’s motion for leave to seek reconsideration. (Dkt. 25.)
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`The district court here initially dismissed sua sponte. (Dkt. 20.) Judge
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`DeGroat made no argument that sovereign immunity applied to him. (See Dkt. 14.)
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`This may help explain why the district court mistakenly applied Fort Yates and failed
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`to address Kodiak – because it took no briefing on these issues. However, there is
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`no similar explanation available for why the district court failed to address or
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`distinguish Kodiak after the DNR relied almost exclusively on that case in its motion
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`for leave seek reconsideration. (Dkt. 25.)
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`Instead of following this Court’s precedent in Kodiak, the district court cited
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`four Supreme Court cases that did not support the district court’s analysis: V.O.P.A
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`v. Stewart, 563 U.S. 247 (2011); Pennhurst State Sch. & Hosp. v. Halderman,
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`465 U.S. 89, 107 (1984); Lewis v. Clarke, __ U.S. __, 137 S. Ct. 1285 (2017); and
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`Hawaii v. Gordon, 373 U.S. 57 (1963).
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`For example, the V.O.P.A holding in no way supports the district court’s
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`conclusion. There, one Virginia state agency sued another, arguing it had a federal-
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`law right to access certain records of its sister agency. 563 U.S. at 252. Pursuant to
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`Ex parte Young, V.O.P.A. named the commissioner of the sister agency in his
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`official capacity. Id.6 The issue before the Supreme Court was whether Ex parte
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`Young applies to an internecine dispute between two state agencies – a question it
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`answered affirmatively. Id. at 252. The district court here, however, strangely cited
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`the case for the proposition that Ex parte Young does allow official capacity suits for
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`injunctive relief – ignoring the holding of the case allowing just such a suit to
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`proceed. Id. at 257.
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`Pennhurst also does not support dismissal of this case. As the district court
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`observed, Pennhurst does contain a statement of the general rule (to which Ex parte
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`Young is the exception) that a suit against a state is barred “regardless of whether it
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`seeks damages or injunctive relief.” 465 U.S. at 102. However, the very next
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`sentence of Pennhurst states the exception.
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`6 The district court decision originating V.O.P.A. is at 2008 WL 2795940, showing
`that the commissioner was sued in his official capacity.
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`The Court has recognized an important exception to this general rule:
`a suit challenging the constitutionality of a state official’s action is not
`one against the State.
`465 U.S. at 102. And as this Court is well aware, this exception applies not just to
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`constitutional violations, but wherever an official violates a federal law for which
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`there is a right of action. See, e.g., VOPA, supra.7
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`The final two cases cited in by the court in denying leave for reconsideration
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`are inapposite, as Lewis addressed a damages claim against a tribal employee in his
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`individual capacity, and Gordon (a two-paragraph per curium order) relates to state
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`suits against the federal government.
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`This Court’s recent decision in Kodiak, in contrast, is completely dispositive
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`of the issue of whether sovereign immunity applies to Judge DeGroat for the claims
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`pled here. Kodiak applies well-settled law that non-members have a federal right to
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`sue in federal court to block an improper assertion of tribal jurisdiction. See, e.g.,
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`Hicks, 533 U.S. at 358; Kodiak, 932 F.3d at 1131; Nord, 520 F.2d at 852. Simply
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`put, Ex parte Young allows suits in federal court against tribal judges to challenge
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`tribal court jurisdiction. DNR is overwhelmingly likely to succeed in reversing the
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`7 Federal courts have long held that tribal courts violate the federal common law
`rights of non-members when they assert jurisdiction they do not have over the non-
`members, creating federal jurisdiction to enjoin tribal court proceedings pursuant to
`28 U.S.C. § 1331. Nat. Farmers Union Ins. Cos. v. Crow Tribe of Indians,
`471 U.S. 845 (1985); Nord, 520 F.3d at 852.
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`district court’s sua sponte dismissal of Judge DeGroat on sovereign immunity
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`grounds.
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`B. DNR is Likely to Succeed with its Argument the Tribal Court
`Lacks Subject Matter Jurisdiction to Hear Claims Against DNR
`Officials.
`DNR is also overwhelmingly likely to succeed on its second key assertion:
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`that the tribal court lacks subject matter jurisdiction. That is true for at least two
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`reasons. First, DNR officials enjoy sovereign immunity from suits in tribal court.
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`Second, even in the absence of sovereign immunity, the tribal court would lack
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`subject matter jurisdiction to hear suits against DNR officials for actions off-
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`reservation.
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`1.
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`DNR Officials Have Sovereign Immunity to Suit in Tribal
`Court.
`States enjoy absolute sovereign immunity from suit in the courts of other
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`states, or in tribal courts. Franchise Tax Bd. of California v. Hyatt, __ U.S. __,
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`139 S. Ct. 1485, 1493 (2019); Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 53 (1996);
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`Blatchford v. Native Vill. of Noatak & Circle Vill., 501 U.S. 775, 782 (1991);
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`Montana v. Gilham, 133 F.3d 1133, 1135 (9th Cir. 1998).
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`Federal law abrogates sovereign immunity for some types of Indian treaty
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`claims – but in a limited fashion that allows for suit only in federal court, and only
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`against state officials in their official capacity under an Ex Parte Young analysis.
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`See 28 U.S.C. §§ 1331, 1362; see also, e.g., Idaho v. Coeur d’Alene Tribe of Idaho,
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`521 U.S. 261, 268 (1997) (holding tribal claims are subject to the Eleventh
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`Amendment, and tribes are therefore limited to bringing suits against states through
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`official capacity suits for prospective injunctive relief under Ex parte Young); Mille
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`Lacs Band of Chippewa Indians v. State of Minnesota, 853 F. Supp. 1118, 1129
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`(D. Minn. 1994).
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`Here, the Band sued in tribal court, not federal district court. As a result, there
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`is no applicable abrogation of Minnesota’s sovereign immunity or Eleventh
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`Amendment immunity, and DNR is immune from the Band’s suit in in tribal court.
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`Coeur d’Alene Tribe of Idaho, 521 U.S. at 268. The Band’s naming of DNR officials
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`in their individual capacities changes nothing. Sovereign immunity extends to both
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`state agencies and state officials in their individual capacities if the suit challenges
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`state policies or procedures. Id. at 269; Hagen v. Sisseton-Wahpeton Community
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`College, 205 F.3d 1040, 1043 (8th Cir. 2000); Weeks Constr., Inc. v. Oglala Sioux
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`Housing Authority, 797 F.2d 668, 670 (8th Cir. 1986). In the tribal suit, the Band
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`challenges state policies and procedures, or seek declarations of rights in connection
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`with state policies and procedures. (E.g. Dkt. 1-1 at 11-14, ¶¶ a-j.).
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`Simply put, if the Band wishes to vindicate its alleged federal treaty rights, it
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`must sue in federal court. See Duro v. Reina, 495 U.S. 676, 679 (1990); Nevada v.
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`Hicks, 533 U.S. 353, 358 (2001); Montana v. U.S., 450 U.S. 544, 565 (1981);
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`Fond du Lac Band of Chippewa Indians v. Carlson, 68 F.3d 253, 256 (8th Cir. 1995).
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`2.
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`Even in the Absence of Sovereign Immunity, The Tribal
`Court Lacks Subject Matter Jurisdiction Over the Claims
`Pled.
`Tribal courts are courts of limited jurisdiction. Plains Commerce Bank v.
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`Long Family Land & Cattle Co., 554 U.S. 316, 324 (2008); Atty’s Process &
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`Investigation Servs., Inc. v. Sac & Fox Tribe of Mississippi in Iowa, 609 F.3d 927,
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`934 (8th Cir. 2010). Whether “a tribal court has adjudicative authority over
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`nonmembers is a federal question.” Id. Here, DNR officials are not members of the
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`Band. As a general matter, tribal courts lack jurisdiction over non-members. See,
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`e.g., Duro, 495 U.S. at 679; Hicks, 533 U.S. at 358; Montana, 450 U.S. at 565. There
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`are two narrow exceptions to this general rule, neither of which applies here.
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`First, tribal courts may exercise jurisdiction over non-members where the non-
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`member enters into a consensual relationship with the tribe though commercial
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`dealings or a similar arrangement. Id. Here, there are no commercial dealings or
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`similar arrangements between DNR and the Band on the subject matters of this suit
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`and the Band has not argued otherwise.
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`Second, tribal courts may exercise jurisdiction over non-members if their
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`conduct occurs on tribal or trust lands within its reservation, or “on fee lands within
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`its reservation when that conduct threatens or has some direct effect on the political
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`integrity, the economic security, or the health or welfare of the tribe.” Montana,
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`450 U.S. at 566 (emphasis added). In the tribal suit, the Band pleads no acts on lands
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`in its reservation – tribal, trust or fee. Line 3 does not cross any part of the White
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`Earth Reservation. (Dkt. 7 ¶ 2.)
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`The two seminal cases on tribal jurisdiction over nonmembers, Montana and
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`Hicks, are particularly instructive. In Montana, the Supreme Court considered
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`whether a tribe could regulate hunting and fishing by non-members on fee lands
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`within the reservation. 450 U.S. 557. The Supreme Court held the tribe could not –
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`generally limiting the legislative power of tribes over non-members to situations in
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`which they act on tribal or trust land within the reservation. Id. Montana is
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`dispositive of the tribal court’s jurisdiction over the Band’s claims here. If tribes
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`lack jurisdiction to regulate hunting and fishing of non-members even within some
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`parts of the reservation, they clearly lack the authority to regulate the conduct of
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`state officials off-reservation. Id. Here, that is what the Band is attempting to do –
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`regulate the conduct of State officials acting off-reservation with respect to the
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`State’s regulation of an off-reservation project. And because the jurisdiction of tribal
`
`courts extends no further than the tribe’s legislative authority, tribal courts have no
`
`jurisdiction over non-members for acts occurring off-reservation. A-1 Contractors,
`
`520 U.S. at 453.
`
`16
`Appellate Case: 21-3050 Page: 16 Date Filed: 09/13/2021 Entry ID: 5075883
`
`

`

`In Hicks, the Supreme Court further limited the jurisdiction of tribal courts for
`
`suits against State officials.8 That case involved a state game warden who executed
`
`a search warrant inside a reservation at the home of a tribal member. 533 U.S. at
`
`355-56. The member sued the officer in tribal court on a Section 1983 claim,
`
`alleging the officer violated his constitutional rights in conducting the search. Id.
`
`at 357. The Supreme Court held that the tribal court lacked jurisdiction to hear the
`
`claims, and the plaintiff was instead required to bring his suit in federal court. Id.
`
`Like Montana, Hicks is dispositive here. If tribal courts lack jurisdiction over claims
`
`for acts taken by state officials on the reservation, they clearly lack jurisdiction over
`
`claims for acts by state officials off the reservation.
`
`Because DNR is likely to succeed with its claim that the tribal court has no
`
`subject matter jurisdiction over State officials for conduct occurring off-reservation,
`
`this Court should enter an injunction precluding further the tribal court proceedings.
`
`
`8 Hicks also holds that state officials are not required to litigate their jurisdictional
`challenges in tribal court to exhaustion, because tribal court jurisdiction over them
`is clearly lacking, and exhaustion in tribal court would serve no purpose other than
`delay. 533 U.S. at 370. Despite this, the Band and Judge DeGroat argued to the
`district court that DNR officials were required to exhaust their remedies in tribal
`court – ignoring Hicks. They cited no case in which a federal court has required
`state officials to exhaust their jurisdictional challenges in tribal court. DNR has
`located no federal case in which the court required state officials to exhaust their
`remedies in tribal court before filing in federal court.
`
`17
`Appellate Case: 21-3050 Page: 17 Date Filed: 09/13/2021 Entry ID: 5075883
`
`

`

`III. THE DNR FACES IRREPARABLE HARM IN THE ABSENCE OF AN INJUNCTION.
`
`DNR faces two types of irreparable harm if this Court does not enter a
`
`preliminary injunction to prevent further proceedings in the tribal court.
`
`First, if DNR is forced to litigate the merits of the Band’s suit in tribal court,
`
`the DNR would lose the benefit that sovereign immunity confers – the ability to
`
`avoid suit in a foreign (non-federal) court. See, e.g., Parton v. Ashcroft, 16 F.3d 226,
`
`228 (8th Cir. 1994); McSurely v. McClellan, 697 F.2d 309, 317 (D.C. Cir. 1982);
`
`Briggs v. Goodwin, 569 F.2d 10, 60 (D.C. Cir. 1977).9
`
`Second, the State faces the very real possibility the tribal court will enter a
`
`preliminary injunction on September 20. The injunction the Band seeks would,
`
`among other things, purportedly require DNR officials to rescind DNR-issued
`
`permits. (Dkt. 1-1 at 14, 46 ¶ 86.) This would constitute an unheard of direct
`
`interference with the DNR’s administration of a State-law regulatory program
`
`concerning a project located off-reservation.
`
`DNR clearly meets the requirements for showing irreparable harm, and this
`
`factor favors the entry of a preliminary injunction.
`
`
`9 If DNR is forced to litigate tribal claims in tribal court to a resolution on the merits
`before seeking a federal determination that the tribal court had no subject matter
`jurisdiction, it is a reasonable to expect a raft of such tribal litigation to be filed
`challenging every controversial project in the state that has potential environmental
`impacts.
`
`18
`Appellate Case: 21-3050 Page: 18 Date Filed: 09/13/2021 Entry ID: 5075883
`
`

`

`IV. THE BALANCE OF HARMS FAVORS THE DNR.
`
`As set forth above, in the absence of a preliminary injunction, the DNR will
`
`suffer significant harms of the exact type its sovereign immunity is designed to
`
`prevent. In contrast, the harms the Band faces would be temporary and capable of
`
`remedy.
`
`First, the federal courts will be the ultimate arbiter of the tribal court’s subject
`
`matter jurisdiction – and thus there is no harm in advancing an adjudication of that
`
`issue through a preliminary injunction. Unlike a judgment from a state or federal
`
`court in which the court rules on its own subject matter jurisdiction, a tribal court
`
`determination that it has subject matter jurisdiction is not entitled to full faith and
`
`credit, but is instead subject to a de novo collateral attack. Nevada, 533 U.S. at 369;
`
`Nord, 520 F.3d at 852. As a result, the Band will have to come to federal court to
`
`litigate its jurisdiction, and the only harm from a preliminary injunction is that it
`
`must litigate the issue before it conducts proceedings in tribal court on the merits of
`
`the Band’s claim instead of after. In contrast, DNR faces the prospect of litigating
`
`in tribal court before it can obtain an adjudication that the court has no jurisdiction.
`
`Second, the Band has adequate recourse even if a preliminary injunction is
`
`entered. To the extent the Band has valid claims against DNR officials for which
`
`there are no applicable immunities, those claims can be brought in federal district
`
`court under an Ex parte Young. Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S.
`
`19
`Appellate Case: 21-3050 Page: 19 Date Filed: 09/13/2021 Entry ID: 5075883
`
`

`

`261, 268 (1997). Indeed, that is the mechanism the Mille Lacs Band Ojibwe used to
`
`successfully litigate its claims for usufructuary rights against the State. Mille Lacs
`
`Band of Chippewa Indians v. State of Minnesota, 853 F. Supp. 1118, 1129 (D. Minn.
`
`1994). Entering a preliminary injunction recognizing the tribal court’s lack of
`
`subject matter jurisdiction would simply require the Band to bring its claims in an
`
`appropriate forum. The balance of harms therefore favors entry of a preliminary
`
`injunction.
`
`V. THE PUBLIC INTEREST FAVORS ENTERING THE PRELIMINARY INJUNCTION.
`
`The public interest also favors entering the preliminary injunction. In addition
`
`to being required by well-established case law, a failure to recognize the DNR’s
`
`sovereign immunity would lead to jurisdictional chaos. One of the animating
`
`principles behind sovereign immunity is comity. Franchise Tax Bd. of California v.
`
`Hyatt, __ U.S. __, 139 S. Ct. 1485, 1492, 203 L. Ed. 2d 768 (2019). For a sovereign
`
`to assert immunity, it must in turn confer immunity on other sovereigns. Id. The
`
`Band zealously protects its own sovereign immunity when sued in state or federal
`
`court, as it should. See Harper v. White Earth Hum. Res., No. CV 16-1797
`
`(JRT/LIB), 2017 WL 701354, at *1 (D. Minn. Feb. 22, 2017). Minnesota courts
`
`recognize tribal sovereign immunity, including the Band’s. Gavle v. Little Six, Inc.,
`
`555 N.W.2d 284, 289 (Minn. 1996). Public policy requires reciprocity.
`
`20
`Appellate Case: 21-3050 Page: 20 Date Filed: 09/13/2021 Entry ID: 5075883
`
`

`

`While the mutual immuniti

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