                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 COEUR D’ALENE TRIBE, a                        No. 17-35755
 federally recognized Indian
 Tribe,                                          D.C. No.
             Plaintiff-Appellant,          2:16-cv-00366-BLW

                  v.
                                                 OPINION
 STEVE W. HAWKS;
 DEANNE A. HAWKS,
       Defendants-Appellees.


        Appeal from the United States District Court
                  for the District of Idaho
      B. Lynn Winmill, Chief District Judge, Presiding

           Argued and Submitted October 12, 2018
                     Portland, Oregon

                         Filed August 9, 2019

  Before: Richard R. Clifton and Consuelo M. Callahan,
   Circuit Judges, and Roger T. Benitez,* District Judge.

                       Opinion by Judge Clifton


     *
       The Honorable Roger T. Benitez, United States District Judge for
the Southern District of California, sitting by designation.
2               COEUR D’ALENE TRIBE V. HAWKS

                            SUMMARY**


       Tribal Matters / Subject Matter Jurisdiction

    The panel reversed the district court’s order dismissing
for lack of subject matter jurisdiction an action filed by an
Indian tribe seeking to enforce a tribal court judgment against
nonmembers.

    The panel held that inherent in the recognition of a tribal
court’s judgment against a nonmember is a question
regarding the extent of the powers reserved to the tribe under
federal law. Because the action presented a substantial issue
of federal law, the district court had federal question
jurisdiction under 28 U.S.C. § 1331.

    The panel reversed the district court’s order and remanded
for further proceedings.


                             COUNSEL

Jillian H. Caires (argued) and Peter J. Smith IV, Smith &
Malek PLLC, Coeur d’Alene, Idaho, Plaintiff-Appellant.

Norman M. Semanko (argued), Parsons Behle & Latimer,
Boise, Idaho; Matthew J. McGee, Spink Butler LLP, Boise,
Idaho; for Defendants-Appellees.




    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             COEUR D’ALENE TRIBE V. HAWKS                    3

                         OPINION

CLIFTON, Circuit Judge:

    This appeal presents the question of whether the grant of
federal question jurisdiction in 28 U.S.C. § 1331
encompasses an action to recognize and enforce a tribal
court’s award against nonmembers of the tribe. The district
court concluded that the action, filed by an Indian tribe
seeking to enforce a tribal court judgment against
nonmembers, did not present a federal question and dismissed
it based on a lack of subject matter jurisdiction. Inherent in
the recognition of a tribal court’s judgment against a
nonmember is a question regarding the extent of the powers
reserved to the tribe under federal law. As in previous
decisions involving the application of tribal law to
nonmembers, we hold that actions seeking to enforce a tribal
judgment against nonmembers raise a substantial question of
federal law. We accordingly reverse the district court’s order
dismissing the case for lack of subject of matter jurisdiction.

I. Background

    Plaintiff-Appellant Coeur d’Alene Tribe (the “Tribe”) is
a federally recognized Indian Tribe and the beneficial owner
of submerged portions of Lake Coeur d’Alene and the St. Joe
River. See Idaho v. United States, 533 U.S. 262, 265 (2001).
Defendants-Appellees Steve and Deanne Hawks are not
members of the Tribe but own an interest in real property
abutting the St. Joe River. The Hawks also own and maintain
a boat garage set on pilings that extend from their property
into the St. Joe River. Beginning in 2003, the Tribe advised
the Hawks through letters and compliance orders that the
4               COEUR D’ALENE TRIBE V. HAWKS

pilings and boat garage encroached on land the Tribe is
entitled to control. The Hawks never responded.

    In 2016, the Tribe sued the Hawks in the Coeur d’Alene
Tribal Court (the “Tribal Court”) for encroachment without
a permit in violation of tribal law. The Hawks were served
with notice but did not answer the complaint or otherwise
contest the allegations. The Tribal Court accordingly entered
default judgment against the Hawks in the form of a $3,900
civil penalty and a declaration that the Tribe was entitled to
remove the encroachments.1

    The Tribe subsequently sought federal recognition and
enforcement of the Tribal Court’s judgment by filing a
complaint in the U.S. District Court for the District of Idaho.2
The Hawks moved to dismiss the complaint for lack of
subject matter jurisdiction. The Tribe responded by arguing
that the case fell under the court’s jurisdiction to adjudicate
questions of federal law because in order to enforce the
judgment, the court would be required to determine the extent
of the Tribal Court’s jurisdiction over nonmembers, a
question that federal law governs. Although the district court
acknowledged that the Tribal Court’s authority over the


    1
      The tribal exhaustion doctrine, which requires federal courts to
abstain until tribal appellate courts have had the opportunity to review the
rulings of lower tribal courts, is not relevant as the Hawks did not appeal
the Tribal Court’s ruling and there is no related litigation pending in the
Tribal Court. See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 16 & n.8
(1987).
    2
      Recognizing that the civil penalty is punitive in nature and that a
court will not enforce the penal laws of another sovereign, the Tribe has
abandoned on appeal its request to enforce the $3,900 penalty. See de
Fontbrune v. Wofsy, 838 F.3d 992, 1000–01 (9th Cir. 2016).
                 COEUR D’ALENE TRIBE V. HAWKS                                5

Hawks presented a federal question, it held the question was
not present on the face of the Tribe’s complaint. Having
found “no federal statute or law . . . in dispute,” the district
court dismissed the suit for lack of subject matter jurisdiction.
The Tribe timely appealed.

II. Discussion

   We have appellate jurisdiction under 28 U.S.C. § 1291
and review the district court’s dismissal for lack of subject
matter jurisdiction de novo. See Peabody Coal Co. v. Navajo
Nation, 373 F.3d 945, 948 (9th Cir. 2004).

    The cases that a federal court may decide are limited to
those authorized by the Constitution and federal statutes and
are “not to be expanded by judicial decree.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). We
are to “presume[] that a cause lies outside this limited
jurisdiction, and the burden of establishing the contrary rests
upon the party asserting jurisdiction.” Id. (citations omitted);
see also Stock W., Inc. v. Confederated Tribes of the Colville
Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).

    Congress has granted federal courts jurisdiction over “all
civil actions arising under the Constitution, laws, or treaties
of the United States.” 28 U.S.C. § 1331.3 Included within

    3
      On appeal, the Tribe has asserted 28 U.S.C. § 1331 as the sole basis
for the district court’s authority to enforce the Tribal Court judgment. The
Tribe’s complaint, however, invoked the court’s jurisdiction under
28 U.S.C. § 1362, which confers jurisdiction over all civil actions, brought
by an Indian tribe, that arise under the Constitution, laws, or treaties of the
United States. See Oneida Indian Nation v. County of Oneida, 414 U.S.
661, 663 (1974). While this statute allows Indian tribes to invoke federal
question jurisdiction without an amount in controversy, the elimination of
6              COEUR D’ALENE TRIBE V. HAWKS

this grant of jurisdiction are cases arising under rules
articulated by federal courts in the form of federal common
law. Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians,
471 U.S. 845, 850 (1985). An action arises under federal law
only if federal law “creates the cause of action” or “a
substantial question of federal law is a necessary element” of
a plaintiff’s well-pleaded complaint. Morongo Band of
Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d
1376, 1383 (9th Cir. 1988). “This means that a plaintiff may
not establish federal jurisdiction by asserting in its complaint
that the defendant will raise a federal-law defense to the
plaintiff’s claim, . . . or by including in its complaint
allegations of federal-law questions that are not essential to
its claim. . . .” Id. (citations omitted).

    Because the district court complaint did not explicitly
present any federal cause of action, jurisdiction of the federal
courts over this action depends on the necessary presence of
a substantial question of federal law. See Franchise Tax Bd.
v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1,
27–28 (1983); Morongo Band, 858 F.2d at 1383. In deciding
whether a federal ingredient suffices for a case to arise under
federal law, the Supreme Court has emphasized:

        [I]n exploring the outer reaches of § 1331,
        determinations about federal jurisdiction
        require sensitive judgments about
        congressional intent, judicial power, and the


the amount-in-controversy requirement under § 1331 has rendered § 1362
largely superfluous. See Morongo Band of Mission Indians v. Cal. State
Bd. of Equalization, 858 F.2d 1376, 1383 (9th Cir. 1988); Gila River
Indian Cmty. v. Henningson, Durham & Richardson, 626 F.2d 708, 710
(9th Cir. 1980).
              COEUR D’ALENE TRIBE V. HAWKS                     7

        federal system. “If the history of the
        interpretation of judiciary legislation teaches
        us anything, it teaches the duty to reject
        treating such statutes as a wooden set of self-
        sufficient words.”

Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 810
(1986) (quoting Romero v. Int’l Terminal Operating Co.,
358 U.S. 354, 379 (1959)).

    “[F]ederal question jurisdiction does not exist merely
because an Indian tribe is a party . . . .” Stock W., 873 F.2d at
1225. Nor is there any general “federal common law of
Indian affairs.” Inyo County v. Paiute-Shoshone Indians,
538 U.S. 701, 712 (2003). Rather, we must articulate a
specific rule of federal common law under which the Tribe’s
case arises. See id.

    The Tribe has argued that its enforcement action arises
under federal common-law rules limiting its authority over
nonmembers. A tribe’s authority does not spring from federal
law but rather derives from the “inherent powers of a limited
sovereignty which has never been extinguished.” United
States v. Wheeler, 435 U.S. 313, 322 (1978) (emphasis
omitted) (quoting Felix Cohen, Handbook of Federal Indian
Law 122 (ed. 1945)), superseded by statute on other grounds.
Tribal sovereignty nevertheless “exists only at the sufferance
of Congress and is subject to complete defeasance.” Id. at
323. Thus, because “federal law defines the outer boundaries
of an Indian tribe’s power over non-Indians,” Nat’l Farmers,
471 U.S. at 851, the question of “whether a tribal court has
adjudicative authority over nonmembers is a federal
question,” Plains Commerce Bank v. Long Family Land &
Cattle Co., 554 U.S. 316, 324 (2008).
8            COEUR D’ALENE TRIBE V. HAWKS

    In National Farmers Union Insurance Cos. v. Crow Tribe
of Indians, 471 U.S. 845, 847 (1978), a tribal court entered
default judgment against a school district. The school district
subsequently sued in federal court to prevent execution of the
tribal court’s judgment, claiming that the tribal court lacked
jurisdiction. Id. The Supreme Court held that the school
district’s “right to be protected against an unlawful exercise
of [a tribe’s] judicial power” presented a federal question, as
the right could not be vindicated without reference to the
federal law that curtailed the tribe’s authority. Id. at 851–53;
see also Ariz. Pub. Serv. Co. v. Aspaas, 77 F.3d 1128, 1132
(9th Cir. 1995).

    Had the Hawks brought a “colorable claim” in federal
court, alleging the Tribal Court lacked jurisdiction, National
Farmers would directly control. Imperial Granite Co. v. Pala
Band of Mission Indians, 940 F.2d 1269, 1272 n.5 (9th Cir.
1991). It is the Tribe, not the Hawks, however, who brought
suit. And it is not protection from the Tribal Court’s
judgment the complaint seeks, but enforcement of it. Even if
the Hawks had defended on the basis that the Tribal Court
lacked jurisdiction over them, that federal issue would have
been present only in the form of an anticipated defense. To
find jurisdiction on that basis alone would contravene the
well-pleaded complaint rule. See Vaden v. Discover Bank,
556 U.S. 49, 60 (2009); Begay v. Kerr-McGee Corp.,
682 F.2d 1311, 1314–15 (9th Cir. 1982); see also Okla. Tax
Comm’n v. Graham, 489 U.S. 838, 841 (1989) (holding a
tribe’s sovereign immunity defense insufficient to raise a
federal question); Morongo Band, 858 F.2d at 1386.

   Relying on our decision in Wilson v. Marchington,
127 F.3d 805 (9th Cir. 1997), the Tribe contended an
examination of the scope of a tribal court’s jurisdiction is an
                COEUR D’ALENE TRIBE V. HAWKS                             9

implicit predicate to any suit seeking to enforce a tribal
judgment against a nonmember. In Marchington, without
expressly articulating the basis for federal jurisdiction, we
reached the merits in an action brought by a tribe member
seeking to enforce a tribal court’s award that arose out of a
vehicle accident with a nonmember.4 We declined to extend
the Full Faith and Credit Clause to recognition of tribal
judgments but stated “as a general principle, federal courts
should recognize and enforce tribal judgments” under
principles of comity. Id. at 810. The nonmember defendant
objected to the award’s enforcement on the grounds that the
tribal court lacked jurisdiction. We agreed and, as a result,
refused to recognize the award. Id. at 815.5



    4
      The mere fact that we reached the merits in Marchington does not
necessarily answer the question of whether the district court had
jurisdiction in the present case. See Ordonez v. United States, 680 F.3d
1135, 1139 (9th Cir. 2012) (“‘When questions of jurisdiction have been
passed on in prior decisions sub silentio’ a court is not bound ‘when a
subsequent case finally brings the jurisdictional issue’ to the forefront.”
(quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 119
(1984))).
    5
       The district court distinguished Marchington by noting that there
“both sides sought a ruling on whether the tribal court had jurisdiction.”
Even assuming the Marchington plaintiff had sought a declaration
establishing the tribal court’s jurisdiction, manufacturing a federal
question this way would, by itself, likely have been insufficient to cure
any jurisdictional defect. See Franchise Tax Bd., 463 U.S. at 16;
Stillaguamish Tribe of Indians v. Washington, 913 F.3d 1116, 1118 (9th
Cir. 2019) (“Parties cannot circumvent the well-pleaded complaint rule by
filing a declaratory judgment action to head off a threatened lawsuit.”).
And, as noted above, the fact that the nonmember defendants in
Marchington contested the tribal court’s jurisdiction would not have been
relevant to the question of federal question jurisdiction, which depends
solely on the plaintiff’s well-pleaded complaint.
10           COEUR D’ALENE TRIBE V. HAWKS

    We observed in Marchington that whether a tribal court
has subject matter jurisdiction is “a threshold inquiry in
virtually every federal examination of a tribal judgment.”
127 F.3d at 811. Although the same could be said about an
action to enforce any foreign judgment, our opinion implicitly
seemed to recognize that the “threshold inquiry” in actions
seeking enforcement of tribal judgments turned on a
substantial issue of federal law because of the federal
government’s unique relationship with Indian tribes. See id.
at 813; see also Bird v. Glacier Elec. Coop., Inc., 255 F.3d
1136, 1140–42 (9th Cir. 2001) (reaching the merits in an
action seeking to enforce a tribal award without explaining
basis for federal jurisdiction).

    With the issue now presented squarely before us, we
conclude the Tribe’s action to enforce the Tribal Court’s
judgment against a nonmember presents a substantial issue of
federal law.

    We begin with the Supreme Court’s decision in Oneida
Indian Nation v. County of Oneida, 414 U.S. 661 (1974).
There, the Oneida Indian Nation sought to eject the state of
New York from lands it claimed to have owned “from time
immemorial.” Id. at 664. It alleged that cessations of land to
New York during the eighteenth century were invalid, in part,
because the United States had not consented as required by
federal law. Id. at 664–65. The Second Circuit concluded the
suit was nothing more than a state ejection action, under
which the Oneidas merely needed to establish possessory
rights, and that the question of whether the concession
complied with federal law was present only as an anticipated
defense. Id. at 665–66. It accordingly held the Oneidas’
claim “shatter[ed] on the rock of the ‘well-pleaded complaint’
rule for determining federal question jurisdiction.” Id. at 665.
                COEUR D’ALENE TRIBE V. HAWKS                            11

    The Supreme Court reversed, concluding that because
“[t]he threshold allegation required of such a well-pleaded
complaint—the right to possession—was plainly enough
alleged to be based on federal law,” the federal question “did
not arise solely in anticipation of a defense.” Id. at 666. It
noted that regardless of which party was entitled to the land,
the Oneidas’ asserted right to possession was not “so
insubstantial, implausible, . . . or otherwise completely devoid
of merit as not to involve a federal controversy.” Id. The
Supreme Court later characterized this holding as “similar” to
complete preemption cases in which the preemptive force of
federal law “is so powerful as to displace entirely any state
cause of action.” Franchise Tax Bd., 463 U.S. at 23 & n.25;
see Kaighn Smith, Jr., Federal Courts, State Power, and
Indian Tribes: Confronting the Well-Pleaded Complaint Rule,
35 N.M. L. Rev. 1, 21–23 (2005).

    Drawing on Oneida Indian Nation and National Farmers,
we have held there was federal question jurisdiction in
several actions involving tribes suing nonmembers for civil
violations of tribal law. These cases presented a federal
question, we concluded, because an Indian tribe’s “power to
apply [a tribal ordinance] will require a showing of its
authority, under federal law, to enact and enforce this
ordinance against non-members.” Native Vill. of Tyonek v.
Puckett, 957 F.2d 631, 634 (9th Cir. 1992).6

    6
      Additionally, the Supreme Court has expressly recognized tribes’
“federal common-law right to sue to enforce their aboriginal land rights.”
County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 235 (1985); see
also United States v. Milner, 583 F.3d 1174, 1182 (9th Cir. 2009)
(“Federal common law governs an action for trespass on Indian lands.”).
We thus recognize, without deciding, that had the Tribe originally sought
to eject the Hawks by suing in district court, federal question jurisdiction
may have been proper. This does not establish federal jurisdiction in this
12              COEUR D’ALENE TRIBE V. HAWKS

     In Chilkat Indian Village v. Johnson, 870 F.2d 1469,
1473–75 (9th Cir. 1989), for example, the Chilkat Indian
Village (the “Village”) sued a nonmember defendant in
federal district court for removing several native artifacts in
violation of a Village ordinance. The defendant moved to
dismiss the case for lack of subject matter jurisdiction,
claiming that the alleged violation of the Village ordinance
did not present a federal question. We observed that by
seeking to apply its ordinance to a nonmember, the Village
was “pressing ‘the outer boundaries of an Indian tribe’s
power over non-Indians[,]’ which ‘federal law defines.’” Id.
at 1474 (alteration in original) (quoting Nat’l Farmers,
471 U.S. at 851). We acknowledged that some of these
federal issues were “purely defensive,” but decided the
complaint complied with the well-pleaded complaint rule
because “the Village’s allegations of sovereign power, . . .
which could only be cognizable as a matter of federal
common law” brought the “case within the rule of Oneida
Indian Nation.” Id. at 1475. We concluded “[i]t would be
too technical . . . to focus only on the ultimate ordinance,
which is not federal, and to ignore the necessity for the
Village to prove its disputed federal power to enact and apply
it to those outside of its community.” Id. We accordingly
held that “[a]lthough the matter is certainly not free from


case, however. We cannot recast this action to domesticate a tribal
judgment as an ejectment action in order to provide a basis for federal
jurisdiction. The Tribal Court was asked to adjudicate the property rights;
the district court was asked to enforce the result of that adjudication.
Comity prohibits relitigation of the underlying merits and therefore could
not provide the jurisdictional basis. See Marchington, 127 F.3d at 810 n.4
(“[T]he merits of the case should not, in an action brought in this country
upon the judgment, be tried afresh, as on a new trial or an appeal, upon the
mere assertion of the party that the judgment was erroneous in law or in
fact.” (quoting Hilton v. Guyot, 159 U.S. 113, 202–03 (1895))).
             COEUR D’ALENE TRIBE V. HAWKS                   13

doubt, . . . the claims for enforcement of the [Village]
ordinance against the non-Indian defendants d[id] arise under
federal law within the meaning of 28 U.S.C. [§] 1331.” Id.
at 1473.

     Shortly afterward, in Morongo Band of Mission Indians
v. Rose (Rose), 893 F.2d 1074, 1076 (9th Cir. 1990), the
Morongo Band of Indians (the “Band”) sued a nonmember in
federal court for violating the Band’s ordinance regulating
bingo games on the reservation. Again, the question before
us was whether federal question jurisdiction existed over the
Band’s action to enforce its ordinance against a nonmember.
Id. at 1077. Relying on Chilkat, we held a federal question
“inhere[d] in [the Band’s] complaint” because “[i]n
attempting to enforce its ordinance against [a nonmember],
the Band necessarily invoke[d] its sovereign power and
relie[d] on its disputed ability, under principles of federal
common law, to apply that power against one outside of its
community.” Id.; see id. at 1078 (“It arises from the nature of
the complaint itself.”). We declined to distinguish Chilkat on
the fact that the nonmember lived on the Band’s reservation,
noting the federal question arose out of the defendant’s status
as a nonmember and not the location of his activity. Id. at
1078. We also reaffirmed Chilkat’s holding that asserting
jurisdiction did not violate the well-pleaded complaint rule
because “[t]o enforce its ordinance against [a nonmember],
the Band w[ould] first have to establish its sovereign power
to exercise civil authority over [him]” and “the power to
regulate ‘the affairs of non-Indians’ is one of federal law.”
Id. (quoting Nat’l Farmers, 471 U.S. at 851–52).

    Although these cases featured tribes asserting their
legislative power over nonmembers, they cannot be
distinguished from the Tribe’s exercise of its judicial powers
14              COEUR D’ALENE TRIBE V. HAWKS

in this case. And while we did not explicitly discuss the basis
for federal jurisdiction in Marchington, discussed above, our
effective conclusion there that we had jurisdiction was
consistent with, and a tacit extension of, our reasoning in
these earlier decisions. See Marchington, 127 F.3d at 811.

     By seeking to enforce its judgment against the Hawks, the
Tribe was “pressing ‘the outer boundaries’” of its authority
over nonmembers. Chilkat, 870 F.2d at 1474 (quoting Nat’l
Farmers, 471 U.S. at 851). It was in essence asking the
district court to determine whether the Tribal Court validly
exercised the powers “reserved” to it under federal common
law. Id. at 1475 (citing Nat’l Farmers, 471 U.S. at 845).
Because the Tribe’s enforcement action required a “showing
of its authority” over nonmembers, Native Vill. of Tyonek,
957 F.2d at 634, we conclude that the Tribe’s invocation of
its sovereign power over the Hawks inhered in the district
court complaint, see Rose, 893 F.2d at 1077.7




     7
       As in Chilkat, we acknowledge the question before us “is a close
one.” Chilkat, 870 F.2d at 1475. Only the Tenth and Eleventh Circuits
have had occasion to address this issue, and they reached different results.
In line with our holding today, the Tenth Circuit has concluded “[t]he
question of the regulatory and adjudicatory authority of the tribes—a
question bound up in the decision to enforce a tribal court order—is a
matter of federal law giving rise to subject matter jurisdiction under
28 U.S.C. § 1331.” MacArthur v. San Juan County., 497 F.3d 1057, 1066
(10th Cir. 2007); see also id. n.4. The Eleventh Circuit, however, has held
that the federal issue in National Farmers—the right to be free from a
tribal court without jurisdiction—is not implicated in a suit seeking to
“domesticate a tribal judgment” and has accordingly held that such suits
do “not state a claim under federal law, whether statutory or common
law.” Miccosukee Tribe of Indians v. Kraus-Anderson Const. Co.,
607 F.3d 1268, 1275 (11th Cir. 2010).
               COEUR D’ALENE TRIBE V. HAWKS                          15

    The Hawks’ decision not to contest the Tribal Court’s
jurisdiction does not differentiate this case from the cases
discussed above in which the tribes’ authority over
nonmembers was specifically disputed. See, e.g., Chilkat,
870 F.2d at 1474 (noting “the Village’s power under the
federal statute or common law to enact and apply [its
ordinance to nonmembers] is open to immense dispute”);
Rose, 893 F.2d at 1077.8 Recognizing that the determination
of a tribe’s jurisdiction involves “a complex patchwork of
federal, state and tribal law, which is better explained by
history than by logic,” we have repeatedly observed “[t]here
is no simple test for determining whether tribal court
jurisdiction exists.” Smith v. Salish Kootenai Coll., 434 F.3d
1127, 1130 (9th Cir. 2006) (alteration in original) (internal
marks omitted) (first quoting United States v. Bruce, 394 F.3d
1215, 1218 (9th Cir. 2005); then quoting Stock W., 873 F.2d
at 1228); see also Nat’l Farmers, 471 U.S. at 855–56 (“[T]he
existence and extent of a tribal court’s jurisdiction will
require a careful examination of tribal sovereignty, the extent
to which that sovereignty has been altered, divested, or
diminished, as well as a detailed study of relevant statutes,
Executive Branch policy as embodied in treaties and
elsewhere, and administrative or judicial decisions.” (footnote
omitted)). In order to recognize the Tribal Court’s judgment
against the Hawks, the district court would have had to
consider the various factors set forth in Montana v. United
States, 450 U.S. 544 (1981), and determine potentially
complex questions of land ownership. See Coeur d’Alene
Tribe v. Johnson, 405 P.3d 13, 19–20 (Idaho 2017) (analyzing
Montana factors under nearly identical facts).


    8
      Despite the Tribe’s assertion to the contrary, the record does not
indicate the Hawks have expressly conceded that the Tribal Court’s
exercise of personal and subject matter jurisdiction was proper.
16              COEUR D’ALENE TRIBE V. HAWKS

    Our decision today should not be construed as
recognizing federal question jurisdiction anytime a tribe sues
a nonmember. See Gila River Indian Cmty., 626 F.2d at 715
(“Otherwise the federal courts might become a small claims
court for all such disputes.”).9 Nor is our holding relevant to
situations in which a tribe is not acting in its sovereign
capacity or cases that do not implicate a tribe’s relationship
with the federal government. See Peabody Coal Co.,
373 F.3d at 951 (holding no federal question presented in a
breach of contract action with a nonmember where the Indian
sovereign had not attempted to regulate the nonmember’s
activity or subject it to its tribal court’s authority); Begay,
682 F.2d at 1315; Gila River Indian Cmty., 626 F.2d at 715.
We emphasize that our holding is confined to the facts
presented—a tribe seeking to enforce a tribal court judgment
against a nonmember. Compare Chilkat, 870 F.2d 1473–75,
with Boe v. Fort Belknap Indian Cmty., 642 F.2d 276, 280
(9th Cir. 1981) (concluding that a tribe’s attempt to apply its
ordinance to a tribal member did not raise a federal question);
see also Native Vill. of Tyonek, 957 F.2d at 634.




     9
       We additionally reject the Tribe’s contention that federal question
jurisdiction may be premised on federal common law’s role in establishing
the rules under which tribal judgments are recognized. See Marchington,
127 F.3d at 813. This argument “puts the proverbial cart before the horse”
as the rules of recognition apply only after the court has determined it has
jurisdiction. See Taveras v. Taveraz, 477 F.3d 767, 783 (6th Cir. 2007);
see also Miccosukee Tribe of Indians, 607 F.3d at 1275. Comity merely
supplies the conditions under which a court may exercise its discretion to
recognize the judicial acts of a foreign tribunal and cannot confer federal
question jurisdiction any more than can the Full Faith and Credit Clause.
See Minnesota v. N. Sec. Co., 194 U.S. 48, 72 (1904) (holding that the
statute effectuating the Full Faith and Credit Clause “does not make a case
arising under the Constitution or laws of the United States”).
             COEUR D’ALENE TRIBE V. HAWKS                  17

III.     Conclusion

    In sum, we conclude that a federal question inhered in the
Tribe’s complaint because in order to impose its policy,
embodied in a declaration by its judiciary, it will inevitably
be forced to establish its authority to do so under federal
common or statutory law. See Chilkat, 870 F.2d at 1474 n.9.
We accordingly reverse the district court’s dismissal for lack
of subject matter jurisdiction and remand for further
proceedings.

       REVERSED and REMANDED.
