                                                                             FILED
                               NOT FOR PUBLICATION                            JUN 25 2010

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




                               FOR THE NINTH CIRCUIT



GLACIER ELECTRIC                                   No. 09-35216
COOPERATIVE, INC.;
                                                   D.C. No. CV-08-30-SEH
               Plaintiff-Appellant,

  v.
                                                   MEMORANDUM *
THE ESTATE OF SCOTT SHERBURNE,
RON BIRD, and HERB GILHAM,
Individually and on behalf of Glacier
Construction, Inc.;

               Defendants-Appellees.



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

                         Argued and Submitted February 2, 2010
                                  Seattle, Washington

Before: W. FLETCHER and RAWLINSON, Circuit Judges, and MOSMAN, **
District Judge.


          *
               This disposition is not appropriate for publication and is not precedent
  except as provided by 9th Cir. R. 36-3.

          **   The Honorable Michael W. Mosman, District Judge for the District of
  Oregon, sitting by designation .
      Glacier Electric Cooperative ("GEC") appeals the district court's decision to

grant summary judgment in favor of Appellees (collectively, "Glacier Construction").

At summary judgment, GEC argued that a tribal court judgment against GEC was void

for lack of subject matter jurisdiction. In 1998, the issue of tribal subject matter

jurisdiction was fully litigated in the district court during a different but related lawsuit

between these same parties. Accordingly, the district court concluded that the doctrine

of res judicata precluded GEC from relitigating the tribal court's subject matter

jurisdiction in this proceeding.

      Issue preclusion attached to the district court's 1998 decision. The issue of

subject matter litigation was actually litigated in 1998, determined by a valid and final

judgment on remand, and essential to judgment. See, e.g., Arizona v. California, 530

U.S. 392, 414 (2000) (quoting Restatement (Second) of Judgments § 27, p. 250

(1982)); Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 874 (1984). Even

though the appeal of this case was ultimately resolved on grounds of due process, the

determination of subject matter jurisdiction made by the district court was never

disturbed. See Wilson v. Marchington, 127 F.3d 805, 811 (9th Cir. 1997) ("[T]he

existence of subject matter jurisdiction is a threshold inquiry in virtually every federal

examination of a tribal judgment.").

      AFFIRMED.



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