                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                                        PUBLISH
                                                                                 JAN 20 1998
                          UNITED STATES COURT OF APPEALS
                                                                            PATRICK FISHER
                                                                                     Clerk
                                    TENTH CIRCUIT



 RONNIE ENLOW,

           Plaintiff-Appellant,
 v.                                                           No. 96-5252
 PATRICK MOORE,

           Defendant-Appellee.


                APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE NORTHERN DISTRICT OF OKLAHOMA
                             (D.C. No. 95-CV-1047-K)


John M. Young, Sapulpa, Oklahoma, for Plaintiff-Appellant.

David A. Mullon Jr. (Jessie Huff Durham with him on the brief), Okmulgee, Oklahoma,
for Defendant-Appellee.


Before BALDOCK and HOLLOWAY, Circuit Judges, and BROWN, District Judge.*


BALDOCK, Circuit Judge.


       Plaintiff Ronnie Enlow appeals an order of the district court dismissing his petition

for a writ of prohibition without prejudice for failure to exhaust tribal remedies. Our


       *
               The Honorable Wesley E. Brown, Senior United States District Judge for
the District of Kansas, sitting by designation.
jurisdiction arises under 28 U.S.C. § 1291. We review a dismissal for failure to exhaust

only for an abuse of discretion. Texaco, Inc. v. Zah, 5 F.3d 1374, 1376 (10th Cir. 1993).

The proper scope of the tribal exhaustion rule, however, is a matter of law which we

review de novo. Id. Thus, if the district court exceeded the scope of the rule, then the

district court necessarily abused its discretion in dismissing for failure to exhaust.

Applying these standards, we reverse.

                                              I.

       Enlow, a non-Indian, owns a tract of land in Creek County, Oklahoma. Enlow’s

land adjoins allotments of Indian land restricted against alienation and owned by three

members of the Muscogee (Creek) Nation. A boundary dispute arose and the owners of

the restricted allotments filed a quiet title action against Enlow in the Muscogee (Creek)

Nation Tribal Court (hereinafter “tribal court”). Defendant Patrick Moore, a Muscogee

(Creek) Nation district judge, presided over the tribal court case. The complaint in tribal

court alleged that Enlow removed the boundary fence separating his property and the

Indian land and erected a new fence that encroached upon the restricted allotments.

       In the tribal court, Enlow filed a motion to dismiss the complaint arguing that the

tribal court lacked jurisdiction over the action. The tribal court denied the motion. Enlow

then filed an interlocutory appeal to the Supreme Court of the Muscogee (Creek) Nation,

which affirmed the tribal court’s decision. In the interim, Enlow filed his own quiet title

action in the District Court of Creek County, Oklahoma (hereinafter “state court”).


                                              2
During the pendency of the state court action, Enlow filed the instant federal action,

seeking an injunction prohibiting the tribal court judge, Patrick Moore, from assuming

jurisdiction over the case in tribal court, and directing the quiet title action to proceed in

state court.1 In his federal action Enlow moved for summary judgment arguing that the

tribal court’s jurisdiction is limited to disputes involving Indian country.2 Enlow asserted

that the disputed strip of boundary land was not Indian country and therefore the quiet

title action did not fall within the jurisdiction of the tribal courts. Defendant Patrick

Moore filed a motion to dismiss arguing that Enlow had failed to exhaust his tribal

remedies. The federal district court dismissed the case, concluding that tribal remedies

had not been exhausted because the tribal court had yet to decide the merits of the case,

including the location of the disputed boundary line.




       1
         The state court has held its proceedings in abeyance pending disposition of this
case in federal court. We note that Oklahoma law provides that the judgment of a tribal
court will be granted full faith and credit by the Oklahoma courts if the tribal court grants
reciprocity to state court judgments. See Barrett v. Barrett, 878 P.2d 1051, 1054 (Okla.
1994). Neither party disputes that the Muscogee (Creek) Nation grants such reciprocity.
       2
         “Indian country” is defined as areas “‘validly set apart for the use of the Indians
as such, under the superintendence of the Government.’” Oklahoma Tax Comm’n v.
Potawatomi Indian Tribe, 498 U.S. 505, 511 (1991) (quoting United States v. John, 437
U.S. 634, 649 (1978)). See also 18 U.S.C. § 1151 which defines “Indian country” for
civil as well as criminal jurisdiction. Pittsburg & Midway Coal Mining Co. v. Watchman,
52 F.3d 1531, 1541 (10th Cir. 1995). Restricted allotments of Indian land constitute
“Indian country.” Mustang Production Co. v. Harrison, 94 F.3d 1382, 1385 (10th Cir.
1996), cert. denied, 117 S.Ct. 1288 (1997), (citing DeCoteau v. District County Court,
420 U.S. 425, 446 (1975)).

                                               3
                                              II.

       In this case, the narrow issue before the federal district court was whether the tribal

court could properly exercise subject matter jurisdiction over a civil action involving a

non-Indian property owner.3 Under 28 U.S.C. § 1331, the federal district court has the

authority to determine whether a tribal court has exceeded its jurisdiction. Nat’l Farmers

Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845, 857 (1985). However, the

federal district court declined to make this determination, and, instead, dismissed the

petition on exhaustion grounds. The federal district court concluded that Enlow’s tribal

court remedies regarding subject matter jurisdiction had not yet been exhausted because

the tribal trial court had yet to develop a factual record regarding the location of the

disputed boundary line. We conclude that the district court erred in doing so.

       The tribal exhaustion rule is the result of Congress’ “strong interest in promoting

tribal sovereignty, including the development of tribal courts.” Smith v. Moffett, 947

F.2d 442, 444 (10th Cir. 1991). The rule provides that federal courts must abstain from

exercising jurisdiction until tribal remedies have been exhausted unless the “‘assertion of

tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith,’ or where

the action is patently violative of express jurisdictional prohibitions, or where exhaustion

would be futile.” Nat’l Farmers, 471 U.S. at 856 n.21 (citations omitted). The abstention



       3
         As the federal district court correctly recognized, the merits of the underlying
quiet title action were not before it.

                                              4
doctrine applies to cases such as this where the tribal court’s jurisdiction is at issue. Id. at

857.

       Although we agree with the federal district court that the determination of whether

tribal courts have subject matter jurisdiction over non-Indians in civil cases “should be

conducted in the first instance in the Tribal Court itself,” Nat’l Farmers, 471 U.S. at 856,

the record before us makes clear that the highest court of the Muscogee (Creek) Nation

did in fact make such a determination. The Supreme Court of the Muscogee (Creek)

Nation held that the tribal court had jurisdiction over the boundary dispute. Specifically,

the court held that the “property in question is located within the boundaries of the

Muscogee (Creek) Nation and that the property is Indian Country and that the [tribal]

District Court does have jurisdiction over the parties . . . .” Based on the preceding

language, we conclude that the highest tribal court had the “opportunity to review the

determinations of the lower tribal court,” thus exhausting Enlow’s tribal court remedies.

See Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 17 (1987); see also Bank of Oklahoma

v. Muscogee (Creek) Nation, 972 F.2d 1166, 1169 (10th Cir. 1992) (holding that tribal

court remedies are deemed exhausted upon appellate review within the tribal court

system).

       As the district court correctly recognized, the location of the disputed boundary

line goes not only to the merits of the quiet title action but also to the jurisdictional issue.

This is so because tribal authority over non-Indians is limited. Strate v. A-1 Contractors,


                                                5
117 S.Ct. 1404, 1409 (1997). Indian tribes retain only those “aspects of sovereignty not

withdrawn by treaty or statute, or by implication as a necessary result of their dependent

status.” United States v. Wheeler, 435 U.S. 313, 323 (1978). In general, the “sovereign

powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.”

Montana v. United States, 450 U.S. at 544, 565 (1981). Indian tribes do, however, “retain

inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on

their reservations.” Id. (emphasis added). This authority over non-Indians “on

reservation lands is an important part of tribal sovereignty.” LaPlante, 480 U.S. at 18.

Thus, civil jurisdiction over non-Indians on reservation lands “presumptively lies in the

tribal courts unless affirmatively limited by a specific treaty provision or federal statute.”

Id.

       As these cases make clear, in civil disputes involving a non-Indian and Indian

land, where no treaty provision or federal statute divests the tribal court of jurisdiction,

the tribal court may properly exercise jurisdiction. See LaPlante, 480 U.S. at 18.

Therefore, in the present case, both tribal court jurisdiction and the merits of the quiet title

action turn on the location of the disputed land. The tribal supreme court unequivocally

held that the disputed property was Indian land. Therefore, the highest court of the

Muscogee (Creek) Nation not only determined that jurisdiction in the tribal court was

proper but also, in effect, determined the merits of the case by holding that the disputed

property was Indian land. Nonetheless, the federal district court apparently surmised that


                                               6
the tribal supreme court did not actually mean what it said because the tribal trial court

had yet to hear the merits of the case and no factual record had been developed regarding

the location of the disputed property. Although we recognize that the lack of a factual

record regarding the tribal supreme court’s finding that the disputed property is within

Indian country makes review by the district court difficult, we cannot ignore the clear

language of the tribal supreme court’s opinion.4 Furthermore, assuming, as we must, that

the tribal trial court is bound by the opinion of the tribal supreme court, the supreme

court’s holding that the disputed land is within Indian country decides the merits of the

case as well. Therefore, the district court had no reason to refrain from reviewing the

tribal court’s jurisdiction.

       Therefore, we conclude that the district court abused its discretion by dismissing

this case for failure to exhaust tribal court remedies. On remand the federal district court

must determine whether the tribal supreme court’s finding that the disputed property lies




       4
          We note that the district court’s jurisdictional inquiry may permissibly involve
matters that are also relevant to the merits of the case, such as the location of the disputed
boundary line. See Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995) (resolution
of jurisdictional questions may be intertwined with the merits of the case).

                                              7
within Indian country is clearly erroneous.5 See Mustang Production Co. v. Harrison, 94

F.3d 1382, 1384 (10th Cir. 1996) (holding that district court reviews tribal court’s

findings of facts for clear error and conclusions of law de novo).

       Accordingly, we reverse the district court’s order and remand the case to the

district court for the limited purpose of determining whether the tribal court exceeded the

lawful limits of its jurisdiction.

       REVERSED and REMANDED.




       5
         In Montana, the Court also recognized that a tribe’s civil authority over the
conduct of non-Indians may extend to non-Indian fee lands within the reservation if the
conduct “threatens or has some direct effect on the political integrity, the economic
security, or the health or welfare of the tribe.” 450 U.S. at 566. The term “non-Indian fee
lands” refers to land within the reservation acquired in fee simple by non-Indian owners.
Strate, 117 S.Ct. at 1409. From the limited record before us, it is unclear whether the
disputed property falls within the definition of non-Indian fee lands. Thus, we leave it to
the district court to make such a determination, if necessary.

                                             8
