           United States Court of Appeals
                      For the Eighth Circuit
                  ___________________________

                          No. 14-1549
                  ___________________________

                Fort Yates Public School District #4

                 lllllllllllllllllllll Plaintiff - Appellant

                                     v.

Jamie Murphy, for C.M.B. (a minor); Standing Rock Sioux Tribal Court

               lllllllllllllllllllll Defendants - Appellees
                  ___________________________

                          No. 14-1702
                  ___________________________

                Fort Yates Public School District #4

                 lllllllllllllllllllll Plaintiff - Appellee

                                     v.

                Jamie Murphy, for C.M.B. (a minor)

                lllllllllllllllllllll Defendant - Appellant

                 Standing Rock Sioux Tribal Court

                      lllllllllllllllllllll Defendant
                              ____________

             Appeals from United States District Court
             for the District of North Dakota - Bismarck
                                    ____________

                           Submitted: December 10, 2014
                               Filed: May 15, 2015
                                  ____________

Before BYE, SMITH, and KELLY, Circuit Judges.
                           ____________

SMITH, Circuit Judge.

       Plaintiff-Appellant Fort Yates Public School District #4 ("School District")
brought an action against Defendant-Appellees "Jamie Murphy for C.M.B. (a minor)"
and the Standing Rock Sioux Tribal Court ("Tribal Court"), seeking (1) a declaration
that the Tribal Court lacks jurisdiction over claims that Murphy filed against the
School District in Tribal Court, and (2) injunctions prohibiting the prosecution of the
claims in Tribal Court. The district court dismissed the Tribal Court on sovereign
immunity grounds. Later, the district court dismissed the entire case on the grounds
that the Tribal Court had jurisdiction. For the reasons stated herein, we affirm in part
and reverse in part.

                                     I. Background
        The School District is a political subdivision of the State of North Dakota,
Bismarck Public School District #1 v. State By and Through North Dakota
Legislative Assembly, 511 N.W.2d 247, 251 (N.D. 1994), that operates within the
exterior boundaries of the Standing Rock Indian Reservation ("Reservation"). The
Constitution of North Dakota requires that the School District provide education to
all children in the State of North Dakota, including children who are Indians or reside
on reservations. N.D. Const. art. VIII, § 1 ("[P]ublic schools [ ] shall be open to all
children of the state of North Dakota . . . .").



                                          -2-
       In 2003, the School District and the Standing Rock Sioux Tribe ("Tribe")
entered into a Joint Powers Agreement ("Agreement") to "combine the educational,
social, cultural and physical opportunities of all K-12 students" who attend schools
on the Reservation regardless of Indian heritage.1 The Agreement provided that both
the Standing Rock Community School Board and the Fort Yates School Board would
govern the school system. It also provided that all "real property or equipment"
purchased under the Agreement would generally be "joint property" of the Tribe and
School District.2 The Agreement made clear that "[e]ach of the parties recognize[s]
the sovereignty of the other. In executing the Agreement, no party waive[s] any
rights, including treaty rights, immunities, including sovereign immunities, or
jurisdiction. This Agreement neither diminishes nor expands rights or protections
afforded other persons or entities under tribal, state or federal law."

      A fight between C.M.B. and A.K., two students at a school subject to the
Agreement, triggered the dispute at the heart of this litigation. After the altercation,
the school suspended A.K. for ten days, and C.M.B. obtained a restraining order
against A.K. A.K. allegedly violated the restraining order several months later by
verbally harassing C.M.B. at the school. In response, the school suspended A.K. for
ten additional days.

       Jamie Murphy filed suit on behalf of her daughter, C.M.B., a Tribe member,
in the Tribal Court against the School District, alleging a breach of its duty to provide
a safe learning environment, negligent hiring and training, failure to respect a Tribal

         1
             The Governor of North Dakota approved the Agreement but was not a party
to it.
         2
        It is unclear in the record what, if any, of the real property and facilities used
by the school system belong to the Tribe. It appears that at least some of the property
is not Tribal property given in part the Agreement's provision for "joint property," as
well as the Agreement's specification that the School District operated a "distinct and
separate" school system on the Reservation before 2003.

                                           -3-
Court order, and failure to restrain a known violent student. The School District
moved to dismiss the action on the grounds that the Tribal Court lacked jurisdiction
over the School District. The Tribal Court denied the motion, concluding that it had
jurisdiction.

       The School District did not appeal the Tribal Court's decision to the Standing
Rock Supreme Court; instead, it filed the instant suit in federal court against "Jamie
Murphy for C.M.B. (a minor)" (the named party pursuing the Tribal Court action) and
the Tribal Court, seeking (1) a declaration that the Tribal Court lacks jurisdiction to
decide Murphy's claims, and (2) an injunction prohibiting prosecution of the claims
before the Tribal Court. The district court granted a temporary restraining order
prohibiting Murphy from prosecuting her claims before the Tribal Court. The district
court dismissed the Tribal Court from the case, however, finding sua sponte that the
Tribal Court had sovereign immunity.

       Murphy then moved to dismiss the action on the grounds that "she [was] not
an appropriate party to this action on an individual basis, nor can she appear on behalf
of C.M.B. . . . as C.M.B. is no longer a minor and was an adult at the time this action
was initiated." The case was thereafter reassigned to a new judge. Upon review, the
district court concluded that the Tribal Court did have jurisdiction to resolve
Murphy's suit against the school district and dismissed and remanded the case to the
Tribal Court. In finding that jurisdiction lay with the Tribal Court, the district court
found inapplicable the United States Supreme Court's decision in Montana v. United
States, 450 U.S. 544 (1981). The court further concluded that, even if Montana were
applicable, the Tribal Court would nevertheless have jurisdiction because the School
District entered into the Agreement with the Tribe. Because the court dismissed the
case on these grounds, it also dismissed Murphy's motion to dismiss as moot.




                                          -4-
                                     II. Discussion
                             A. Tribal Court Jurisdiction
        The School District argues on appeal that the district court erred in finding that
the Tribal Court had jurisdiction over Murphy's claims. "The extent of tribal court
subject matter jurisdiction over claims against nonmembers of the Tribe is a question
of federal law which we review de novo." Attorney's Process & Investigation Servs.,
Inc. v. Sac & Fox Tribe of Miss. in Iowa, 609 F.3d 927, 934 (8th Cir. 2010) (citation
omitted).

       No federal statute or treaty specifically provides the Tribal Court with
jurisdiction over the claims at issue in this case; therefore, the Tribal Court's
jurisdiction must stem from its "retained or inherent sovereignty." Atkinson Trading
Co. v. Shirley, 532 U.S. 645, 649–50 (2001). We analyze the contours of a tribal
court's inherent jurisdiction over nonmembers of the tribe within the framework and
principles set forth in Montana, which remains the "'pathmarking case'" on the
subject. Nevada v. Hicks, 533 U.S. 353, 358 (2001) (quoting Strate v. A-1
Contractors, 520 U.S. 438, 445 (1997)). In Montana, the Supreme Court addressed
whether a tribe could prohibit hunting and fishing activities by non-Indians on
reservation land owned in fee simple by non-Indians. As a general matter, the Court
held, "the inherent sovereign powers of an Indian tribe do not extend to the activities
of nonmembers of the tribe." 450 U.S. at 565 (emphases added). The Court then
noted, however, two relatively narrow exceptions to this general rule:

      To be sure, Indian tribes retain inherent sovereign power to exercise
      some forms of civil jurisdiction over non-Indians on their reservations,
      even on non-Indian fee lands. A tribe may regulate, through taxation,
      licensing, or other means, the activities of nonmembers who enter
      consensual relationships with the tribe or its members, through
      commercial dealing, contracts, leases, or other arrangements. A tribe
      may also retain inherent power to exercise civil authority over the
      conduct of non-Indians on fee lands within its reservation when that


                                           -5-
      conduct threatens or has some direct effect on the political integrity, the
      economic security, or the health or welfare of the tribe.

Id. at 565–66 (emphases added) (internal citations omitted).3 Indian tribes may
regulate these two categories of nonmember conduct (that is, activities of
nonmembers who enter into consensual relationships with the tribe or activities that
threaten the tribe), which are referred to as the "Montana exceptions." The Court in
Montana ultimately found that neither exception provided the Tribe with jurisdiction
over non-Indians' hunting and fishing on non-Indian land. Id. at 566.

       Given the general rule set forth and applied in Montana—that a tribe's inherent
sovereign powers do not vest it with jurisdiction over the activities of
nonmembers—the Tribal Court presumably does not have jurisdiction over the claims
asserted in this case. "The burden rests on the tribe" members to establish that one of
the Montana exceptions applies. Plains Commerce Bank v. Long Family Land &
Cattle Co., 554 U.S. 316, 330 (2008).

                             1. First Montana Exception
       The School District entered into the Agreement with the Tribe to provide
administrative and educational services for students, both Indian and non-Indian,
residing on the Reservation. Although it is a consensual arrangement, this Agreement,
alone, does not confer jurisdiction on the Tribal Court under the first Montana
exception because North Dakota law restricts state school districts' contractual
authority. North Dakota law specifies that a school district cannot "[a]uthorize an
agreement that enlarges or diminishes the jurisdiction over civil or criminal matters


      3
        The Tribal Court's jurisdiction cannot exceed the Tribe's regulatory power. See
Strate, 520 U.S. at 453 (1997) ("As to nonmembers, we hold, a tribe's adjudicative
jurisdiction does not exceed its legislative jurisdiction."); Attorney's Process, 609
F.3d at 936 (tribal court jurisdiction "turns upon whether the actions at issue in the
litigation are regulable by the tribe") (quoting Hicks, 533 U.S. at 367 n.8).

                                         -6-
that may be exercised by . . . tribal governments located in North Dakota." N.D. Cent.
Code § 54–40.2–08. The agreements evince nothing indicating that the School
District intended to, or represented that it could, deviate from that law and
affirmatively subject itself to Tribal Court jurisdiction for the types of claims asserted
in this case. To the contrary, the Agreement specifies, among other things, that
"[e]ach of the parties recognize[s] the sovereignty of the other" and that the parties
retained their respective "immunities" and "rights."4

       Moreover, even assuming arguendo that the School District could agree to an
expansion of Tribal Court jurisdiction under North Dakota law, the first Montana
exception still would not provide the Tribal Court with jurisdiction in this case.
Indeed, in Hicks, the Supreme Court elaborated on the first Montana exception and
specified that, "[r]ead in context, an 'other arrangement' is clearly another private
consensual relationship . . . ." 533 U.S. at 359 n.3 (holding that a tribal court lacked
jurisdiction over claims asserted against state officials who executed a search warrant
on tribal land to search for evidence of an off-reservation crime). To resolve lingering
ambiguities as to what constitutes an "other arrangement" under the first Montana
exception, the Court further stated that:

             The [Montana] Court (this is an opinion, bear in mind, not a
      statute) obviously did not have in mind States or state officers acting in
      their governmental capacity; it was referring to private individuals who
      voluntarily submitted themselves to tribal regulatory jurisdiction by the
      arrangements that they (or their employers) entered into. This is
      confirmed by the fact that all four of the cases in the immediately


      4
        The agreement also provides that "no party waive[s] any . . . jurisdiction." We
think the most natural reading of this provision in the context of the Agreement is that
the parties did not waive any rights to contest personal jurisdiction solely by virtue
the Agreement. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.14 (1985)
(noting that "the personal jurisdiction requirement is a waivable right").


                                           -7-
      following citation involved private commercial actors. See [Washington
      v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134,
      152 (1980)] (nonmember purchasers of cigarettes from tribal outlet);
      [Williams v. Lee, 358 U.S. 217 (1959)] (general store on the Navajo
      reservation); [Morris v. Hitchcock, 194 U.S. 384 (1904)] (ranchers
      grazing livestock and horses on Indian lands "under contracts with
      individual members of said tribes"); Buster v. Wright, 135 F. 947, 950
      (8th Cir. 1905) (challenge to the "permit tax" charged by a tribe to
      nonmembers for "the privilege . . . of trading within the borders").

Id. at 372 (emphasis added).

       The Tribe members nevertheless contend that the requisite "consensual
relationship" existed under the first Montana exception because the School District
entered into a contract with the Tribe (unlike Hicks). But they are mistaken. We note
that both the Ninth and Tenth Circuits have held that contractual agreements between
tribes and government entities do not constitute "consensual relationships" within the
meaning of the first Montana exception. In County of Lewis v. Allen, for instance, the
Ninth Circuit issued an en banc decision holding that a tribal court lacked jurisdiction
over a tribal member's civil claims against a political subdivision of a state stemming
from his arrest on reservation land—even though the arrest was made pursuant to a
specific law enforcement contract between the state and the tribe. 163 F.3d 509,
514–16 (9th Cir. 1998). In so holding, the court noted that "Montana's exception for
suits arising out of consensual relationships has never been extended to contractual
agreements between two government entities . . . . [T]he Agreement between the tribe
and the state is not a 'consensual relationship' of the qualifying kind." Id. at 515
(quotation marks omitted) (quoting Strate, 520 U.S. at 457). Likewise, in MacArthur
v. San Juan County, the Tenth Circuit held that employment relationships that were
"contractual in nature" between a state's political subdivision and two tribe members
"were not 'private consensual relationships' . . . and [therefore] do not fall within the
first Montana exception." 497 F.3d 1057, 1071, 1074 (10th Cir. 2007).


                                          -8-
       More recently, in Red Mesa Unified School District v. Yellowhair, the District
of Arizona reached the same conclusion in a case remarkably similar to this case.
There, two school districts operating on Indian reservations filed for declaratory and
injunctive relief in federal court to prohibit a tribal administrative tribunal from
deciding employment-related claims filed against the school districts. No.
CV-09-8071-PCT-PGR, 2010 WL 3855183, at *2 (D. Ariz. Sept. 28, 2010). The
court granted the relief and specifically found that the first Montana exception did not
apply—notwithstanding a lease agreement between the school districts and the
tribe—because the school districts "made the employment decisions at issue while
operating in their governmental capacities pursuant to their state
constitutionally-imposed mandate to operate a public school system within the
reservation boundaries." Id. at *3.

       We agree with these well-reasoned decisions. The School District in this case
acted in its official capacity and, specifically, in furtherance of its obligations under
the Constitution of North Dakota to make public education "open to all children of
the state of North Dakota," see N.D. Const. art. VIII, § 1, when it entered into the
Agreement. The Agreement therefore does not fall within the ambit of the first
Montana exception.5

                             2. Second Montana Exception
       The only remaining avenue for the Tribal Court to have jurisdiction requires
that the claims at issue involve "conduct [that] threatens or has some direct effect on
the political integrity, the economic security, or the health or welfare of the tribe."
Montana, 450 U.S. at 566. In conducting this analysis, we note at the outset that not
every event that impacts a tribe's political integrity, economic security, health, or

      5
        To be clear, we are not ruling out the possibility that a state and a tribe could
enter into an agreement that confers jurisdiction upon the tribe—such as an agreement
that expressly provides for such jurisdiction. But no such agreement is at issue in the
instant case.

                                          -9-
welfare will necessarily give rise to tribal court jurisdiction; indeed, an overly broad
reading of the second Montana exception would render meaningless Montana's
general rule that "the inherent sovereign powers of an Indian tribe do not extend to
the activities of nonmembers of the tribe." Id. at 565. The Court in Hicks emphasized
the necessarily narrow scope of the second Montana exception when it confirmed
that, "[w]here nonmembers are concerned, the 'exercise of tribal power beyond what
is necessary to protect tribal self-government or to control internal relations is
inconsistent with the dependent status of the tribes, and so cannot survive without
express congressional delegation.'" 533 U.S. at 359 (quoting Montana, 450 U.S. at
564); see also Plains Commerce Bank, 554 U.S. at 330 (noting that the Montana
exceptions "are limited ones, and cannot be construed in a manner that would
swallow the rule, or severely shrink it") (quotations omitted).

        In Plains Commerce Bank, the Court further elucidated the circumstances
necessary for the second Montana exception to apply. There, the Court held that the
second Montana exception did not apply to a non-Indian bank's sale of land on a
tribal reservation to another non-Indian because:

      The conduct must do more than injure the tribe, it must "imperil the
      subsistence" of the tribal community. [Montana, 450 U.S. at 566]. One
      commentator has noted that "th[e] elevated threshold for application of
      the second Montana exception suggests that tribal power must be
      necessary to avert catastrophic consequences." Cohen § 4.02[3][c], at
      232, n.220.




                                         -10-
554 U.S. at 341 (emphases added).6 The claims and alleged conduct at issue in this
case clearly do not "imperil the subsistence" of the Tribe, and Tribal Court
jurisdiction is not "necessary to avert catastrophic consequences." In this regard, we
note that other courts have found the second Montana exception inapplicable to
conduct that was either comparable or more detrimental to the Tribe's subsistence and
well-being than the conduct alleged in this case.7

      6
         Of course, the transaction at issue in Plains Commerce Bank involved land
that non-Indians owned in fee simple both before and after the transaction, and this
court is aware that "[t]he ownership status of land" is "one factor to consider in
determining whether regulation of the activities of nonmembers is 'necessary to
protect tribal self-government or to control internal relations.'" Hicks, 533 U.S. at 360.
As noted above, however, there is scant evidence in the record what land and
facilities relevant to this case were owned by the Tribe. Nevertheless, even if the
Tribe owned all of the land and facilities relevant to this case—which is not
supported by the record—Montana would still apply, see Attorney's Process, 609
F.3d at 935–41, and our analysis would not change for the reasons stated herein.
      7
        See Evans v. Shoshone-Bannock Land Use Policy Comm'n, 736 F.3d 1298,
1305 (9th Cir. 2013) (holding that the second Montana exception did not apply to
non-Indian conduct that allegedly caused, among other things, "groundwater
contamination" and "improper disposal of construction debris"); MacArthur, 497 F.3d
at 1075 (holding that "[w]hile the Navajo Nation undoubtedly has an interest in
regulating employment relationships between its members and non-Indian employers
on the reservation, that interest is not so substantial in this case as to affect the
Nation's right to make its own laws and be governed by them"); Allen, 163 F.3d at
515–16 ("Having divested itself of sovereignty over the very activities that gave rise
to the civil claim, nothing in this case can be seen as threatening self-government or
the political integrity, economic security or health and welfare of the tribe. . . . Indian
tribes or their members . . . may pursue their causes of action in state or federal
court."); Otter Tail Power Co. v. Leech Lake Band of Ojibwe, No. 11-1070 DWF/LIB,
2011 WL 2490820, at *5 (D. Minn. June 22, 2011) (holding that the second Montana
exception did not apply to nonmember conduct that would interfere with the tribe's
"hunting, fishing, and gathering rights"); Dolgencorp Inc. v. Miss. Band of Choctaw
Indians, 846 F. Supp. 2d 646, 650 (S.D. Miss. 2011), (holding that the second
Montana exception did not apply to a case in which a nonmember of the tribe

                                           -11-
      In sum, neither Montana exception applies to the facts of this case. We
therefore hold that the Tribal Court lacks jurisdiction over Murphy's claims.

                               B. Sovereign Immunity
       The School District contends that the district court erred by dismissing the
Tribal Court on sovereign immunity grounds. Tribal sovereign immunity is a
"jurisdictional threshold matter." Harmon Indus., Inc. v. Browner, 191 F.3d 894, 903
(8th Cir. 1999). "Questions of sovereign immunity are subject to de novo review."
Lors v. Dean, 746 F.3d 857, 861 (8th Cir. 2014) (citation omitted).

      "As a matter of federal law, an Indian tribe is subject to suit only where
Congress has authorized the suit or the tribe has waived its immunity." Kiowa Tribe
of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998) (citations omitted). "[A] tribe's
sovereign immunity may extend to tribal agencies," including the Tribal Court. See
Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040, 1043 (8th Cir. 2000).

       The School District does not contend that Congress has authorized this suit or
that the Tribe has waived its sovereign immunity. Instead, the School District argues
primarily that "sovereign immunity does not apply in this action" because the School
District "is not seeking damages but only declaratory and injunctive relief." The
Supreme Court has made clear, however, that a tribe's sovereign immunity bars suits
against the tribe for injunctive and declaratory relief. See Michigan v. Bay Mills
Indian Cmty., 572 U.S. —, 134 S. Ct. 2024, 2039 (2014) (holding that a tribe's
sovereign immunity barred a suit against the tribe for injunctive relief); Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 58–59 (1978) (holding that a tribe's sovereign
immunity barred a suit against the tribe for declaratory and injunctive relief).8


allegedly molested a minor tribe member), aff'd. F.3d 167 (5th Cir. 2014).
      8
        Of course, the Tribe's sovereign immunity does not necessarily protect Tribal
officials from suit. See, e.g., Bay Mills, 134 S. Ct. at 2035 (2014) ("[The plaintiff]

                                          -12-
      In light of this precedent, the district court did not err in holding that the Tribe's
sovereign immunity bars the School District's suit against the Tribal Court.

                             C. Murphy's Motion to Dismiss
       Murphy argues on appeal that the district court erred in not dismissing all
claims against "Jamie Murphy for C.M.B. (a minor)" under Rule 12(b)(7).9 According
to Murphy, C.M.B. was over 18 years old at the time the School District filed this
action, meaning "Jamie Murphy for C.M.B. (a minor)" is an improper party. We
review the district court's decision to not grant Murphy's 12(b)(7) motion for an abuse
of discretion. See HS Res., Inc. v. Wingate, 327 F.3d 432, 438 (5th Cir. 2003).

        "Federal Rule of Civil Procedure 12(b)(7) permits dismissal of a complaint for
failure to join a party under Rule 19," although "courts are generally 'reluctant to
grant motions to dismiss of this type.'" 16th & K Hotel, LP v. Commonwealth Land
Title Ins. Co., 276 F.R.D. 8, 12 (D.D.C. 2011) (quoting 5C Charles A. Wright &
Arthur R. Miller, Federal Practice & Procedure § 1359 (3d ed. 2004)); see also Askew
v. Sheriff of Cook Cnty., Ill., 568 F.3d 632, 634 (7th Cir. 2009) ("Dismissal, however,
is not the preferred outcome under the Rules."). Broadly speaking, Rule 19 requires
the joinder of parties necessary for the fair and complete resolution of the case; when
joinder of such a party is not feasible, however, "the court must determine whether,
in equity and good conscience, the action should proceed among the existing parties


could bring suit against tribal officials or employees (rather than the Tribe itself)
seeking an injunction . . . . [T]ribal immunity does not bar such a suit for injunctive
relief against individuals, including tribal officers, responsible for unlawful conduct."
(citations omitted)). But, in this case, the School District chose not to name any Tribal
officials as defendants.
       9
        "Jamie Murphy for C.M.B. (a minor)" is the party who initiated and
prosecuted the Tribal Court suit. The School District presumably named her, instead
of C.M.B., as the defendant in this action because C.M.B. was never substituted in
as the plaintiff in the Tribal Court litigation.

                                           -13-
or should be dismissed." Fed. R. Civ. P. 19(b). "Determining whether an entity is an
indispensable party is a highly-practical, fact-based endeavor, and [Rule] 19's
emphasis on a careful examination of the facts means that a district court will
ordinarily be in a better position to make a Rule 19 decision than a circuit court would
be." Hood ex rel. Miss. v. City of Memphis, Tenn., 570 F.3d 625, 628 (5th Cir. 2009)
(quotation omitted).

      The district court dismissed the entire case on jurisdictional grounds, rendering
Murphy's Rule 12(b)(7) motion moot. The district court may need to address
Murphy's Rule 12(b)(7) motion on remand in light of our decision today, but it did
not abuse its discretion in declining to rule on the motion before dismissing the case
on other grounds. See, e.g., Vacanti v. Sunset Fin. Servs., Inc., No. 8:08CV436, 2009
WL 792387, at *3 (D. Neb. Mar. 23, 2009) (holding that a defendant's motion to
dismiss under "Fed. R. Civ. P. 12(b)(7), 19(a) and 9(b) [was] moot" because plaintiff's
claims were dismissed on other grounds); C.W. Limousine Serv., Inc. v. City of Chi.,
No. 96 C 5130, 1997 WL 208439, at *4 n.1 (N.D. Ill. Apr. 21, 1997) (same).

                         D. Exhaustion of Tribal Remedies
      The School District opted not to appeal the Tribal Court's jurisdictional
determination to the Tribe's Supreme Court. Murphy and the Tribal Court therefore
contend on appeal that the School District's action should be barred for failure to
exhaust tribal remedies.

       Although litigants must generally seek tribal appellate review of lower tribal
courts' jurisdictional determinations before seeking review in federal court, Colombe
v. Rosebud Sioux Tribe, 747 F.3d 1020, 1024 (8th Cir. 2014), that is not always the
case. Indeed, the Supreme Court has specified that when a tribal court plainly lacks
adjudicatory jurisdiction over an action, "the otherwise applicable exhaustion
requirement must give way, for it would serve no purpose other than delay." Strate,
520 U.S. at 459 n.14 (citation omitted). In light of our holding that the Tribal Court

                                         -14-
lacks jurisdiction, "it would serve no purpose other than delay" to require the School
District to appeal the Tribal Court's jurisdictional determination to the Tribe's
Supreme Court. The School District was therefore not required to exhaust its
administrative remedies before commencing this suit. See id.; Hicks, 533 U.S. at 369
(holding that because the "tribal courts lack jurisdiction . . . adherence to the tribal
exhaustion requirement in such cases 'would serve no purpose other than delay,' and
is therefore unnecessary"); Rolling Frito-Lay Sales LP v. Stover, No. CV
11-1361-PHX-FJM, 2012 WL 252938, at *5 (D. Ariz. Jan. 26, 2012).

                                  III. Conclusion
      For the foregoing reasons, and after thoroughly considering all of the parties'
contentions on appeal, we reverse the district court's decision with respect to Tribal
Court jurisdiction and remand for further proceedings. We affirm the district court's
dismissal of the Tribal Court on sovereign immunity grounds.
                       ______________________________




                                         -15-
