                                                                           FILED
                           NOT FOR PUBLICATION                              SEP 03 2010

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




                            FOR THE NINTH CIRCUIT



TOWN PUMP, INC.; MAJOR BRANDS                    No. 10-35090
DISTRIBUTING IMPORTS, INC.,
                                                 D.C. No. 4:09-cv-00054-SEH
              Plaintiffs - Appellees,

  v.                                             MEMORANDUM *

JUDITH LAPLANTE,

              Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                      Argued and Submitted August 30, 2010
                               Seattle, Washington

Before: HAWKINS, McKEOWN and BEA, Circuit Judges.


       Judith LaPlante, an enrolled member of the Blackfeet Nation, appeals the

district court’s grant of summary judgment and permanent injunction of her further

prosecution of claims in Blackfeet Tribal Court against Town Pump, Inc., and



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Major Brands Distributing Imports, Inc. (together, “Town Pump”). LaPlante

alleges personal injury by toxic discharges from a Town Pump gas station within

the exterior boundaries of the Blackfeet Indian Reservation. We have jurisdiction

under 28 U.S.C. § 1291 and affirm.

      Contrary to LaPlante’s position, the presumption against tribal court

jurisdiction over nonmembers established in Montana v. United States, 450 U.S.

544, 564-66 (1981), and progeny applies to this case. See Nevada v. Hicks, 533

U.S. 353, 360 (2001) (explaining that “the general rule of Montana applies to both

Indian and non-Indian land”); accord Smith v. Salish Kootenai Coll., 434 F.3d

1127, 1135 (9th Cir. 2006) (en banc).

      LaPlante satisfies neither of Montana’s exceptions for tribal court

jurisdiction over nonmembers. LaPlante does not allege that Town Pump entered

into “consensual relationships with the tribe or its members, through commercial

dealing, contracts, leases, or other arrangements.” Montana, 450 U.S. at 565. Nor

does Town Pump’s alleged delay in challenging the tribal court’s jurisdiction

constitute consent to jurisdiction. Because tribal court jurisdiction is an issue of

subject matter jurisdiction, it may not be waived, and Town Pump may raise the

issue at any time during the suit. See Stock W., Inc. v. Confederated Tribes of the

Colville Reservation, 873 F.2d 1221, 1228 (9th Cir. 1989); see also Hicks, 533


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U.S. at 373 (noting that challenges to tribal court jurisdiction “would presumably

be nonwaivable”).

      LaPlante’s reliance on Town Pump’s prior litigation in tribal court—against

different parties and with respect to different claims—is also unavailing. “A

nonmember’s consensual relationship in one area . . . does not trigger tribal civil

authority in another—it is not ‘in for a penny, in for a Pound.’” Atkinson Trading

Co. v. Shirley, 532 U.S. 645, 656 (2001). In addition, although a nonmember’s

consent to tribal jurisdiction may be inferred when it files suit in tribal court as a

plaintiff, see Smith, 434 F.3d at 1137, in this suit Town Pump “is being haled into

tribal court against [its] will” as a defendant. Philip Morris USA, Inc. v. King

Mountain Tobacco Co., 569 F.3d 932, 940 (9th Cir. 2009). Smith’s rationale does

not extend to Town Pump’s indemnity action; that action does not meet the consent

prong of the Montana exceptions. Town Pump’s prior third-party claim against the

Blackfeet Tribe also cannot constitute consent to tribal court jurisdiction, as Town

Pump was barred from raising this claim elsewhere in state or federal court under

the doctrine of tribal sovereign immunity. See Santa Clara Pueblo v. Martinez, 436

U.S. 49, 58 (1978).

      Nor does LaPlante’s personal injury suit satisfy the second Montana

exception. The conduct alleged does not have a “direct effect on the political


                                            3
integrity, the economic security, or the health or welfare of the tribe.” Montana,

450 U.S. at 566. Rather, LaPlante sues over her personal injuries alone.

Although the Tribal Court of Appeals held that it had jurisdiction over LaPlante’s

tort claims on the theory that “[t]he people, the members of the Blackfeet Tribe, are

all one” and that “where one of us is affected[,] all of us as members are affected,”

the Supreme Court has specifically rejected this “no man is an island” logic with

respect to the second Montana exception. Burlington N. R.R. Co. v. Red Wolf,

196 F.3d 1059, 1065 (9th Cir. 1999) (internal quotation marks omitted) (citing

Strate v. A-1 Contractors, 520 U.S. 438, 458-59 (1997)).

      Finally, Town Pump’s prior suit against its insurer in tribal court does not

provide a basis for judicial estoppel. Town Pump’s theory of jurisdiction in that

case sought to link the availability of environmental clean-up funds with the

interests of the Tribe. This position is not “clearly inconsistent” with the position

Town Pump has taken here—i.e., that the second Montana exception does not

apply because LaPlante seeks to remedy her personal injuries alone and has alleged

only a generalized threat to tribal interests. See New Hampshire v. Maine, 532

U.S. 742, 750-51 (2001) (internal quotation marks omitted). As a result, estoppel

is not warranted.

      AFFIRMED.


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