                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                      UNITED STATES COURT OF APPEALS                   June 6, 2016

                                    TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                       Clerk of Court


 UNITED PLANNERS FINANCIAL
 SERVICES OF AMERICA, L.P.,

          Plaintiff - Appellant,

 v.

 SAC AND FOX NATION, a federally
 recognized Indian Tribe; SAC AND                       No. 15-6117
 FOX NATION HOUSING                             (D.C. No. 5:14-CV-01278-HE)
 AUTHORITY, an administrative                           (W.D. Okla.)
 department of the Sac and Fox Nation;
 SAC AND FOX NATION DISTRICT
 COURT; HONORABLE DARRELL
 R. MATLOCK, JR., in his official
 capacity as Judge of the Sac and Fox
 Nation District Court,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before LUCERO, GORSUCH, and PHILLIPS, Circuit Judges.


      This appeal represents the latest chapter in a long litigation between Sac

and Fox Nation and United Planners over an investment allegedly gone awry.



      *
         This order and judgment is not binding precedent, except under the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.
Back in 2011, the Nation brought suit in tribal court alleging a breach of contract.

But the tribal court found that the parties’ contract contemplated arbitration and

dismissed the case. Soon enough, though, the arbitrators also dismissed the case,

this time on statute of limitations grounds. And in light of that move the Nation

sought to try again in tribal court, arguing now that if arbitration isn’t available

litigation should be. No doubt frustrated by this latest twist, United Planners

responded by asking a federal district court to intervene and enjoin the Nation’s

most recent tribal court lawsuit. The district court held, however, that United

Planners had failed to exhaust its tribal court remedies and so could not invoke

federal jurisdiction. It’s this ruling United Planners asks us to undo in this

appeal.

      We don’t see how we might. United Planners is certainly right that

someone who isn’t a tribal member presents a federal question if he alleges a

tribal court has asserted jurisdiction over him unlawfully. Nat’l Farmers Union

Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 852-53 (1985). But it’s also

true that before anyone may bring a claim like that to district court, he must first

exhaust available tribal court remedies. Id. at 856-57. And, as the district court

noted, that much United Planners has not done. United Planners points to the

tribal court’s order dismissing the Nation’s 2011 claims and urges us to read it

not only as requiring arbitration but as permanently closing the tribal court to the

Nation’s claims. But even if we read the order so broadly, it would only mean

                                         -2-
United Planners now seeks, at most, a ruling that the Nation’s current tribal court

lawsuit is barred by its last tribal court lawsuit under the doctrines of claim or

issue preclusion. And as United Planners candidly acknowledged during oral

argument, nothing prevents the company from raising those defenses in tribal

court. An available tribal court remedy thus remains unexhausted and should be

tried before a federal court intercedes, just as the district court recognized. Of

course, exhaustion doctrine bears some exceptions. So, for example, a party

doesn’t have to exhaust tribal court remedies when doing so would lead only to

unnecessary delay or when the assertion of tribal jurisdiction is made in bad faith.

Burrell v. Armijo, 456 F.3d 1159, 1168 (10th Cir. 2006). But we don’t see how

those exceptions might help United Planners here. Someone has to decide

whether the trial court’s disposition of the Nation’s 2011 claims precludes its

current suit, and United Planners offers no reason to think that the tribal court

will do so any less expeditiously than a federal court might. Neither is it apparent

at this preliminary stage whether the Nation’s current invocation of tribal court

jurisdiction is made in bad faith, for at least sometimes the unavailability of

arbitration has permitted a dispute otherwise subject to arbitration to return to

court. See, e.g., In re Salomon Inc. Shareholders’ Derivative Litig. 91 Civ. 5500

(RRP), 68 F.3d 554, 560-61 (2d Cir. 1995). In saying this much, we do not mean

to suggest that United Planners might not eventually succeed in showing bad

faith, only to suggest it hasn’t established it yet.

                                          -3-
      If it must return to tribal court, United Planners asks us to abate rather than

dismiss its current federal lawsuit. This court has said that abatement may be an

appropriate remedy when a party shows good cause for its failure to exhaust tribal

remedies. See Valenzuela v. Silversmith, 699 F.3d 1199, 1208 n.4 (10th Cir.

2012). But United Planners hasn’t supplied good cause for its failure so we can

hardly say that the district court’s remedial decision to dismiss rather than abate

this case rises to the level of an abuse of discretion. See, e.g., BancInsure, Inc. v.

FDIC, 796 F.3d 1226, 1239 (10th Cir. 2015); Thlopthlocco Tribal Town v.

Stidham, 762 F.3d 1226, 1241 (10th Cir. 2014). Given, too, that we affirm the

district court’s exhaustion analysis and dismissal, we have no need to consider the

Nation’s alternative grounds for reaching the same result. See Sinochem Intern.

Co. v. Malaysia Int’l. Shipping Corp., 549 U.S. 422, 431 (2007) (courts may

choose between alternative threshold grounds for affirming an action’s dismissal).

      Affirmed.

                                 ENTERED FOR THE COURT


                                 Neil M. Gorsuch
                                 Circuit Judge




                                         -4-
