                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 14 2010

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



BANK OF AMERICA, N.A., a Delaware                No. 08-16146
corporation,
                                                 D.C. No. 3:00-cv-004500-RCJ
              Plaintiff,

  v.                                             MEMORANDUM *

KYLE SWANSON,

              Defendant - Appellant,

WILLIAM BILLS; WINNEMUCCA
COLONY COUNCIL,
         Defendants - Counter-
         claimants -Appellants,

SHARON WASSON; et al.,
           Defendants -Counter-
   claimants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Robert C. Jones, District Judge, Presiding
                           Submitted October 4, 2010 **
                             San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                          -2-

Before: FERNANDEZ and SILVERMAN, Circuit Judges, and DUFFY, District
Judge.***

      Appellants—William Bills and the Winnemucca Colony Council and its

Chairman Linda Ayer (the “Bills Group”)—appeal from the district court’s grant of

summary judgment in favor of Appellees—Sharon Wasson and the Winnemucca

Indian Colony Council (the “Wasson Group”)—awarding the approximately

$400,000.00 held in a Bank of America account to Appellees. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.

      This case began when Winnemucca Indian Colony Council Chairman Glenn

Wasson was murdered on February 22, 2000. On August 28, 2000, Bank of America

filed a complaint in interpleader pursuant to Rule 22 of the Federal Rules of Civil

Procedure to resolve a dispute between the tribal factions as to who had authority to

use a bank account opened in the name of “Winnemucca Indian Colony.” Years of

protracted litigation ensued in tribal and federal courts.        Eventually, through

participation in the Ninth Circuit’s mediation process, on August 1, 2002, the parties

stipulated to the appointment of a special appellate panel to hear argument and to issue

a binding, non-appealable decision. The special appellate panel consisted of a panel

of judges from the Sioux Nation (the “Minnesota Panel”).


        ***
            The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
                                           -3-

      The Minnesota Panel issued its decision on August 16, 2002 (the “Minnesota

Panel Order”). The Minnesota Panel found that the valid tribal council included the

following people: Sharon Wasson, Thomas Wasson, William Bills, Elverine Castro,

and Thomas Magiera until his death. As such, the panel stated that “all subsequent

activities of the Bills Council are found to be unconstitutional and invalid.” The

Wasson Group moved for summary judgment based on the Minnesota Panel Order on

August 30, 2002.

      The district court denied the Wasson Group’s motion without prejudice and

afforded the Bills Group almost five years to further exhaust tribal remedies. During

that time, the Inter-Tribal Court of Appeals issued several orders, which are not in the

record in full before the district court or on appeal, addressing the issues in this case.

However, on May 17, 2007, the Inter-Tribal Court of Appeals, sua sponte, issued an

order dismissing the case stating that it had no appellate jurisdiction. The Wasson

group renewed its motion for summary judgment based on the Minnesota Panel Order.

Concluding that the parties had exhausted their tribal remedies and that the decision

of the Minnesota Panel was binding and non-appealable, the district court granted the
                                           -4-

Wasson Group’s motion for summary judgment and denied the Bills Group’s cross

motion. This timely appeal followed.1

      This court reviews a district court’s grant of summary judgment de novo.

Brodheim v. Cry, 584 F.3d 1262, 1267 (9th Cir. 2009). Generally, the rule of tribal

exhaustion requires that federal courts give precedence to tribal courts to determine

in the first instance the extent of their own jurisdiction to hear a particular case. See

Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14 (1987); Nat’l Farmers Union Ins. Co.

v. Crow, 471 U.S. 845, 856–57 (1985). Federal courts must enforce tribal court

decisions under principles of comity, unless “the tribal court either lacked jurisdiction

or denied the losing party due process of law.” AT&T Corp. v. Coeur D’Alene Tribe,

295 F.3d 899, 904 (9th Cir. 2002). A judge may dismiss a case sua sponte for lack of

jurisdiction, but that power is subject to the demands of due process. Cal. Diversified

Promotions, Inc. v. Musick, 505 F.2d 278, 280 (9th Cir. 1974). In reviewing a

decision to dismiss for lack of jurisdiction sua sponte, the reviewing court must

consider, “all of the circumstances . . . in determining whether the absence of notice



      1
         This court asked the parties to brief whether this appeal is timely under
Rule 6(a) of the Federal Rules of Civil Procedure. After careful consideration, we
conclude that under the version of Rule 6(a)(2) that was in effect at the time that
the Bills Group filed its Rule 59(e) motion, the appeal is timely, and, as such, we
have jurisdiction to consider it on the merits. See F ED. R. C IV. P. 6(a)(2) (effective
until Dec.1, 2009) (West 2009).
                                           -5-

as to the possibility of dismissal or the failure to hold an adversary hearing renders the

dismissal void.” Id. (internal quotation marks and citation omitted).

      We conclude that the parties exhausted their tribal remedies. The Inter-Tribal

Court of Appeals determined that it did not have jurisdiction.                Under the

circumstances of this case, the parties have been afforded more than due process in

both tribal and federal court. And, in any event, the Bills Group waived its due

process argument by failing to raise it properly before the district court or offer any

excuse for such failure. See Rains v. Flinn (In re Rains), 428 F.3d 893, 902 (9th Cir.

2005). Thus, we recognize the Inter-Tribal Court of Appeals’s dismissal based on

principles of comity. See Coeur D’Alene Tribe, 295 F.3d at 904.

      Further, we agree with the district court to the extent that it recognized the

Minnesota Panel Order on principles of comity; however, we do so on slightly

different grounds. See Ramirez v. Castro, 365 F.3d 755, 762 (9th Cir. 2004). First,

the Wasson Group submitted credible evidence that both parties and the Minnesota

Panel considered the Minnesota Panel Order binding and non-appealable. The Bills

Group provided no evidence to the contrary. See Rivera v. Nat’l R.R. Passenger

Corp., 331 F.3d 1074, 1078 (9th Cir. 2003). Further, the decision rendered by Tribal

Judge Swanson that the Bills Group urges this court to enforce is not entitled to

recognition as it “is inconsistent with the parties’ contractual choice of forum . . . ”,
                                            -6-

namely the Minnesota Panel. See Wilson v. Marchington, 127 F.3d 805, 810 (9th Cir.

1997). Thus, we affirm the district court’s judgment recognizing the Minnesota Panel

Order.

         Finally, as a matter of principle, counsel are reminded that this court has rules

that are to be followed. If something is to be relied upon by this court, it must be

entered into the record of the trial court and reproduced in the Excerpts of Record as

required by 9th Circuit Rule 30-1.3. See 9 TH C IR. R. 30-1.3. Rule 28 of the Federal

Rules of Appellate Procedure requires parties to support factual allegations with

appropriate references to the record. See F ED. R. C IV. P. 28. In egregious cases, we

have summarily affirmed the trial court’s judgment and dismissed the appeal when

parties have acted in complete disregard of these rules. See, e.g., Cmty. Commerce

Bank v. O’Brien (In re O’Brien), 312 F.3d 1135, 1136 (9th Cir. 2002); N/S Corp. v.

Liberty Mut. Ins. Co., 127 F.3d 1145, 1146 (9th Cir. 1997).

         Here, the Bills Group did not include an Excerpts of Record with their opening

brief. The Bills Group’s opening brief lacks appropriate record citations. Had the

Wasson Group not filed a Supplemental Excerpts of Record, we would have to scour

the district court record for the decisions appealed from and other pertinent portions

of the record. Even in the district court record, many of the exhibits, including vital

tribal court rulings, were submitted only in part. For example, the Bills Group only
                                          -7-

submitted three selective pages of the Inter-Tribal Court of Appeals’s March 19, 2004

decision on the jurisdiction of the Minnesota Panel, and no party provided that

decision in its excerpts of record to this court. Due to the complete disrespect for the

rules of this court and the rule of law, we seriously considered summarily dismissing

this appeal. However, on the unique facts of this case, we concluded that the clients

should not be punished for the failings of their attorneys.

      To the extent that the Bills Group made arguments not directly addressed in this

opinion, having been fully considered by this court, we conclude that they completely

lack merit.

      AFFIRMED.
