                                                            FILED
                                                 United States Court of Appeals
                                                         Tenth Circuit

                                                     December 10, 2009
                 UNITED STATES COURT OF APPEALS
                                              Elisabeth A. Shumaker
                                                        Clerk of Court
                         FOR THE TENTH CIRCUIT

ALISON DICKSON; DONNA
SINGER; FRED RIGGS,

           Plaintiffs-Appellants,

     and                                       No. 08-4148
                                      (D.C. No. 2:00-CV-00584-BSJ)
MICHELLE LYMAN; HELEN                            (D. Utah)
VALDEZ; STEVEN MACARTHUR;
NATHANIEL PENN; CANDACE
LAWS; LINDA CACAPARDO;
SUE BURTON; AMY TERLAAK;
CANDACE HOLIDAY; NICOLE
ROBERTS,

           Plaintiffs,

v.

SAN JUAN COUNTY; SAN JUAN
HEALTH SERVICES DISTRICT; J.
TYRON LEWIS, Commissioner;
BILL REDD, Commissioner; CRAIG
HALLS; REID M. WOOD; CLEAL
BRADFORD; ROGER ATCITTY;
JOHN LEWIS; JOHN
HOUSEKEEPER; KAREN ADAMS;
PATSY SHUMWAY; JAMES D.
REDD; L. VAL JONES; MANFRED
R. NELSON; RICHARD BAILEY;
MARILEE BAILEY; ORA LEE
BLACK; GARY HOLLADAY; LORI
WALLACE; CARLA GRIMSHAW;
GLORIA YANITO; JULIE
BRONSON; LAURIE SCHAFER;
    LYN STEVENS, San Juan County
    Commissioner,

               Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and EBEL, Circuit Judges.



        Plaintiffs-Appellants Dickson, Riggs and Singer (hereafter “Appellants”)

appeal from the district court’s order denying their motion for relief from this

court’s final judgment. The district court ruled that the law-of-the-case doctrine

prohibited it from considering Appellants’ new legal theories that a Navajo

Nation tribal court had subject-matter jurisdiction over defendants,

notwithstanding this court’s decision to the contrary. The court’s order also

granted defendants’ motion to enjoin Appellants from initiating any further

proceedings against them. We affirm.

        Background. The factual background of this case is undisputed and is

thoroughly set forth in this court’s prior decision. MacArthur v. San Juan

*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                         -2-
County, 497 F.3d 1057, 1060-1064 (10th Cir. 2007) (hereafter, “MacArthur III”).

Thus, we set forth only the procedural background necessary to resolve this

appeal. 1 Appellants and other plaintiffs filed a complaint in the Navajo Nation

tribal court against defendants San Juan County; San Juan Health Services

District (“SJHSD”); and numerous county officials, trustees and employees of

those entities (hereafter “Defendants”). Plaintiffs’ claims pertained to their

employment at the Montezuma Creek Health Clinic, operated by the SJHSD and

located in San Juan County, Utah, within the exterior boundaries of the Navajo

Nation. Some, but not all, of the plaintiffs were members of the Navajo Nation.

Only one of the Defendants, Mr. Atcitty, was a tribal member. In December

1999, the Navajo tribal court entered a sweeping preliminary injunction against

the Defendants. 2



1
       Even this procedural recitation is streamlined. For example, in prior
related actions, Appellants and other plaintiffs brought numerous state and federal
law claims against the same defendants in federal court. In a 112-page decision,
the district court dismissed the majority of the claims under Federal Rule 16 and
declined to exercise supplemental jurisdiction over the remaining claims.
MacArthur v. San Juan County, 416 F. Supp. 2d 1098, 1208-10 (D. Utah 2005).
This court dismissed the appeal as frivolous. MacArthur v. San Juan County,
495 F.3d 1157, 1158 (10th Cir. 2007).
2
       The tribal court ordered Defendants to reinstate Ms. Singer and Mr. Riggs
to their employment positions; offer Ms. Dickson full time employment; expunge
plaintiffs’ disciplinary record; refrain from requiring physician assistants to
maintain time cards; and pay all of plaintiffs’ attorney fees and expenses.
MacArthur III, 497 F.3d at 1062. It further prohibited Defendants from
eliminating or interfering with certain medical services provided by the health
clinic. Id.

                                         -3-
      – MacArthur I and II. Plaintiffs sought to enforce the tribal court’s

injunction and related tribal court orders by filing suit in federal district court,

seeking a declaratory judgment and a preliminary injunction. But the district

court ruled that it was prohibited from enforcing the tribal court orders because

Defendants enjoyed sovereign immunity from suit in tribal court, and it dismissed

plaintiffs’ complaint. On appeal, we remanded the matter to the district court,

directing it to conduct an analysis of the tribal court’s adjudicative authority over

Defendants in accordance with Montana v. United States, 450 U.S. 544 (1981),

before it addressed the sovereign immunity issue. MacArthur v. San Juan County,

309 F.3d 1216, 1227 (10th Cir. 2002) (hereafter “MacArthur I”). The district

court did so, and ultimately again granted judgment in favor of Defendants.

MacArthur v. San Juan County, 391 F. Supp. 2d 895, 1056-57 (D. Utah 2005)

(hereafter “MacArthur II”).

      – MacArthur III. On appeal, a panel of this court ruled that the federal

courts must not recognize the tribal court orders because the Navajo tribal “court

lacked subject matter jurisdiction (i.e. adjudicatory authority) over nearly all of

Defendants’ activities.” MacArthur III, 497 F.3d at 1067. We first rejected

plaintiffs’ argument that the federal court lacked authority to do anything but

enforce the tribal court orders. We ruled that the question of whether a tribal

court has regulatory and adjudicatory authority, and thus whether a federal court




                                           -4-
can enforce a tribal court order, is a matter of federal law giving rise to

subject-matter jurisdiction under 28 U.S.C. § 1331. Id. at 1066.

      We then began our analysis of the merits with Montana, 450 U.S. 544, “the

pathmarking case concerning tribal civil authority over nonmembers.” Strate v.

A-1 Contractors, 520 U.S. 438, 445 (1997). Montana held that, as a general rule,

“‘the inherent sovereign powers of an Indian tribe do not extend to the activities

of nonmembers of the tribe.’” MacArthur III, 497 F.3d at 1068 (quoting

Montana, 450 U.S. at 565). Montana recognized two “narrow exceptions” to that

general presumption: (1) a “‘tribe may regulate, through taxation, licensing, or

other means, the activities of nonmembers who enter consensual relationships

with the tribe or its members, through commercial dealing, contracts, leases, or

other arrangements’”; and (2) a “‘tribe may . . . exercise civil authority over the

conduct of non-Indians on fee lands within its reservation when that conduct

threatens or has some direct effect on the political integrity, the economic

security, or the health or welfare of the tribe.’” Id. (quoting Montana, 450 U.S.

at 565-66).

      Applying Montana’s general rule and two exceptions to the facts relevant

to each plaintiff and each defendant, this court ultimately ruled that Montana’s

general presumption against tribal civil jurisdiction applied to all Defendants

except one, Mr. Atcitty. Consequently, we held that Defendants’ employment

activities were beyond the regulatory and, therefore, adjudicative, authority of the

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Navajo Nation. MacArthur III, 497 F.3d 1070-1076. 3 The Supreme Court denied

certiorari review. MacArthur v. San Juan County, 128 S.Ct. 1229 (2008).

      Rule 60(b) Motion. Following MacArthur III, Appellants filed numerous

motions in federal and tribal court seeking to avoid the MacArthur III decision.

At issue in this appeal is Appellants’ Federal Rule of Civil Procedure 60(b)

motion asking the district court to alter the holding of MacArthur III, particularly

its reliance on the legal precedents set forth in Montana. In a detailed and

scholarly published decision, the district court denied the Rule 60(b) motion.

MacArthur v. San Juan County, 566 F. Supp. 2d 1239, 1251 (D. Utah 2008)

(hereafter “MacArthur IV”). It discussed Appellants’ new legal theories, but held

it was prohibited under the law-of-the-case doctrine from reconsidering the issues

answered by MacArthur III. It also granted a permanent injunction against

Appellants and their attorneys from proceeding in any forum to relitigate the

questions of jurisdiction, immunity and enforceability of tribal court orders

already decided by the Tenth Circuit in MacArthur III. Id.

      In their Rule 60(b) motion, Appellants “canvasse[d] the treaties and statutes

defining the legal relationship between the United States and the Navajo Nation”

and argued that there is no express legal basis supporting Montana’s presumption

that tribal courts generally lack civil jurisdiction over nonmembers. MacArthur

3
       We exercised our discretion to refuse to enforce the tribal court judgment
as to those claims asserted against defendant Atcitty, over which the tribal court
arguably had subject-matter jurisdiction. MacArthur III, 497 F.3d at 1076.

                                         -6-
IV, 566 F. Supp. 2d at 1242. Appellants also argued that the federal courts lack

authority to decide the Navajo Nation’s jurisdiction in the first place. They

further asserted that the federal courts could not decide the question of the Navajo

Nation’s adjudicatory authority in this case because the Navajo Nation was not a

party to the litigation. Further, they argued that because the Navajo Nation had

entered into a contract with the Bureau of Indian Affairs (BIA) concerning its

judicial programs, pursuant to Medellin v. Texas, 129 S.Ct. 360 (2008), its tribal

courts were “executive agreement claims settlement courts whose acts are entitled

to full force and effect in the courts of the United States.” MacArthur IV, 566 F.

Supp. 2d at 1247 (quotation marks omitted).

      In its exhaustive decision, the district court recited the history of the

relevant legislation and Supreme Court decisions preceding and culminating in

Montana’s holding that tribal courts have very limited civil authority over

nonmembers and nonmember activities within tribal boundaries. Id. at 1242-44.

It acknowledged that scholars and even some members of the Supreme Court

dispute the rule and reasoning of the Montana decision. Id. at 1249.

Nonetheless, it ruled that the Supreme Court’s decision in Montana, which

continues to be followed by the Court, is binding on all lower federal courts,

including it and the Tenth Circuit. Id. at 1245. The district court further ruled

that the Navajo Nation was not a necessary party to the determination of the

jurisdictional issues in this case, distinguishing cases relied upon by Appellants in

                                          -7-
which the litigation was against the tribe itself. Id. at 1245-46. The court

explained that, by bringing an action in federal court seeking enforcement of the

tribal orders, Appellants had invoked the federal court’s jurisdiction under

§ 1331, including its authority to decide the tribal court’s subject-matter

jurisdiction over the Defendants. Id. at 1246-47. Finally, it ruled that the Navajo

Nation’s contract with the BIA was nothing more than a contract to provide

financial assistance, and it did not alter or supercede any of the relevant

legislation or judicial precedent concerning tribal civil authority over

nonmembers. Id. at 1247-48. Ultimately, the district court ruled that Appellants’

arguments as to the tribal court’s jurisdiction and the federal court’s authority to

resolve those issues had been answered by MacArthur III, and, thus, under the

law-of-the-case doctrine, the district court lacked any authority to deviate from

the Tenth Circuit’s mandate. Id. at 1250-51.

      Analysis. Appellants argue on appeal, as they did before the district court,

that “[t]his case presents an opportunity . . . to eliminate the Montana doctrine

from application to the Navajo Nation and . . . mak[e] Navajo law the ‘Supreme

Law of the Land[,]’ binding on all Courts domestically.” Opening Br. at 5. They

contend that (1) all of the federal court decisions in this case were in excess of

their constitutional Article III authority and, therefore, are void; (2) Congress and

the Executive Branch have entered into treaties with the Navajo Nation, such that

all Navajo Nation tribal court actions are binding on the federal courts, pursuant

                                          -8-
to Medellin, 129 S.Ct. 360; and (3) they were denied due process by not being

allowed to litigate the applicability of the Montana doctrine before it was

mandatorily applied by the Tenth Circuit in MacArthur I.

      Appellants’ lengthy and novel legal theories set forth in their Rule 60(b)

motion and their opening brief all seek, quite simply, to relitigate the very same

questions already addressed by this court in MacArthur III: namely, did the tribal

court have subject matter jurisdiction over the nonmember Defendants in this

matter, and do the federal courts have jurisdiction to answer this question. This

court has answered both questions, ruling that the tribal court did not have

jurisdiction over the nonmember Defendants and that the federal courts do have

jurisdiction to determine that issue.

      Appellants are simply arguing that the Montana and MacArthur III

decisions were error. Montana has not been overruled, see Plains Commerce

Bank v. Long Family Land and Cattle Co. Inc., 128 S.Ct. 2709, 2719-20 (2008),

and MacArthur III is both a published decision of this court and the final decision

in this case. “[T]his panel is bound to follow the decisions of the Supreme Court

and the published decisions of this court.” Tootle v. USDB Commandant,

390 F.3d 1280, 1283 (10th Cir. 2004). More specifically, the district court and

this panel are precluded by the law-of-the-case doctrine from revisiting the issues

decided in MacArthur III.




                                         -9-
      Under the law-of-the-case doctrine, “when a court decides upon a rule of

law, that decision should continue to govern the same issues in subsequent stages

in the same case.” Arizona v. California, 460 U.S. 605, 618 (1983). Under this

doctrine, “both district courts and appellate courts are generally bound by a prior

appellate decision in the same case.” Alphamed, Inc. v. B. Braun Medical, Inc.,

367 F.3d 1280, 1285-86 (11th Cir. 2004). “It is a rule based on sound public

policy that litigation should come to an end . . . by preventing continued

re-argument of issues already decided.” Gage v. Gen. Motors Corp., 796 F.2d

345, 349 (10th Cir. 1986) (internal citations omitted). If it were not for the

law-of-the-case doctrine, “there would be no end to a suit if every obstinate

litigant could, by repeated appeals, compel a court to listen to criticisms on their

opinions, or speculate of chances from changes in its members.” Roberts v.

Cooper, 61 U.S. 467, 481 (1857).

      We cannot find anywhere in Appellants’ sixty-two page opening brief or

fifty-three page reply brief where they even contend the district court erred in

denying their Rule 60(b) claims under the law-of-the-case doctrine. The only

time Appellants even acknowledge this doctrine is in an argument in their reply

brief headed, “The Law of the Case Being Navajo Law Supports These

Plaintiffs.” Reply Br. at 20. There, Appellants simply make the circular

argument that one aspect of the holding of MacArthur I–remanding the case to the

district court to address the Montana doctrine in the first instance–should be

                                         -10-
deemed the law of the case, ostensibly in an erroneous belief this would enable

them to continue challenging the Montana doctrine.

      The law of the case as determined in MacArthur III continues to control

this matter. Thus, the district court did not err in following the rulings of this

court that Montana controls the legal analysis of the jurisdictional issues and,

applying Montana, that the tribal court lacked subject-matter jurisdiction to

exercise civil authority over the conduct of the nonmember Defendants.

Accordingly, we affirm the district court’s denial of Appellants’ Rule 60(b)

motion.

      Injunction. In its order, the district court granted Defendants’ motion to

permanently enjoin Appellants Singer, Riggs and Dickson, individually and

through their counsel of record, from seeking to enforce certain orders issued by

the Navajo tribal court in any judicial proceeding before any court as against any

of the Defendants, and it permanently enjoined these Appellants from prosecuting

any claim for damages or other relief in tribal court against the Defendants over

whom the MacArthur III decision determined the tribal court lacked

subject-matter jurisdiction. MacArthur IV, 566 F. Supp. 2d at 1251. We cannot

find any place in Appellants’ opening brief or even their reply brief where they

challenge that ruling. “Issues not raised in the opening brief are deemed

abandoned or waived.” Coleman v. B-G. Maint. Mgmt. of Colorado, 108 F.3d




                                          -11-
1199, 1205 (10th Cir. 1997). Accordingly, the district court’s injunction against

Appellants is affirmed.

      Defendants’ Rule 38 Request. Defendants request that we find Appellants’

appeal to be frivolous and to award damages to the Defendants pursuant to Fed.

R. App. P. 38. Rule 38 empowers this court to “award just damages and single or

double costs to the appellee” if we determine that an appeal is frivolous.

      We are very mindful of the extreme expense and time imposed on the

Defendants by Appellants’ repeated arguments challenging the same issues

already litigated in MacArthur III. There is a strong argument for the imposition

of Rule 38 damages against Appellants for their endless attempts to relitigate the

same matters previously decided by this court. Nonetheless, we also note that the

district court spent considerable time and effort to address Appellants’ arguments,

and in so doing, concluded that, while barred by the law-of-the-case doctrine, at

least some aspects of their arguments were not frivolous. See MacArthur IV,

566 F. Supp. 2d at 1245 n.2. We respect the district court’s opinion in this

matter, and we greatly appreciate the patient and laborious effort undertaken by

the district court in issuing such a thorough decision. We therefore deny the

Defendants’ request for damages

      Nonetheless, we cannot emphasize to Appellants strongly enough that this

matter is at an end. We caution Appellants that if they file any future appeal or

other motion or filing in this court seeking to relitigate any issue in this case, the

                                          -12-
filing may be summarily dismissed and Appellants may be subject to the

imposition of sanctions, including damages and filing restrictions, if the filing is

found to be frivolous.

      The district court’s denial of Appellants’ Rule 60(b) motion and its

permanent injunction issued in MacArthur IV are AFFIRMED. Appellants’

motion to certify to the Supreme Court the question of the binding effect of the

Navajo Nation’s tribal court’s orders is DENIED. Defendants’ requests for

damages under Rule 38 are DENIED. Defendants’ combined motion to dismiss

this appeal under Federal Rule of Appellate Procedure 27 and Tenth Circuit Rule

27.2, is DENIED as moot.


                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




                                         -13-
