                   This opinion is subject to revision before final
                          publication in the Pacific Reporter

                                   2017 UT 75


                                      IN THE

          SUPREME COURT OF THE STATE OF UTAH

       RYAN HARVEY, ROCKS OFF, INC., and WILD CAT RENTALS, INC.,
                            Appellants,
                                         v.
 UTE INDIAN TRIBE OF THE UINTAH AND OURAY RESERVATION, ET AL., 1
                            Appellees.

                               No. 20160362
                          Filed November 7, 2017

                              On Direct Appeal

                       Eighth District, Roosevelt
                    The Honorable Samuel P. Chiara
                            No. 130000009

                                   Attorneys:
           Clark B. Allred, Bradley D. Brotherson, Vernal, UT,
             John D. Hancock, Roosevelt, UT, for appellants
       Christopher R. Hogle, Karina Sargsian, J. Preston Stieff,
 Patrick S. Boice, Craig H. Howe, Deborah Chandler, Salt Lake City,
                  Calvin M. Hatch, South Jordan, UT,
            Daniel S. Press, Washington, D.C., for appellees

       JUSTICE DURHAM authored the opinion of the Court in which
                        JUDGE TOOMEY joined.


   1  Other appellees are Dino Cesspooch (in his individual and
official capacities), Jackie LaRose (in his individual and official
capacities), Sheila Wopsock (in her individual and official
capacities), Newfield Production Company, Newfield Rocky
Mountains, Inc., Newfield RMI, LLC, Newfield Drilling Services,
Inc., L.C. Welding & Construction, Inc., Scamp Excavation, Inc.,
Huffman Enterprises, Inc., LaRose Construction Company, Inc., and
D. Ray C. Enterprises, LLC.
                     HARVEY v. UTE INDIAN TRIBE
                       Opinion of the Court

          JUSTICE HIMONAS authored a concurring opinion.
  ASSOCIATE CHIEF JUSTICE LEE authored a dissenting opinion with
  respect to Part IV of the majority opinion, in which CHIEF JUSTICE
                            DURRANT joined.
Having recused himself, JUSTICE PEARCE does not participate herein;
           COURT OF APPEALS JUDGE KATE TOOMEY sat.

   JUSTICE DURHAM, opinion of the Court:
                            INTRODUCTION
    ¶1    The oil and gas industry is a major economic force in the
Uintah Basin. This industry relies, to some extent, on access to the
Uintah and Ouray Reservation of the Ute Indian Tribe. The plaintiffs
allege that, through its ability to restrict the industry’s access to
tribal lands, the tribe has held hostage the economy of the non-
Indian population.
    ¶2      Ryan Harvey, a plaintiff and part owner of the two
corporations that are the other plaintiffs in this case, alleges that
tribal officials from the Ute Tribe attempted to extort him by
threatening to shut down his businesses if he did not acquiesce to
their demands, despite the fact that his businesses do not operate
directly on tribal land. After his refusal to make certain payments,
the tribal officials sent a letter to the oil and gas companies operating
on tribal land informing them that they would be subject to
sanctions if they used any of Harvey’s businesses. The tribal
official’s letter dried up a large portion of Harvey’s business, and
Harvey brought claims against the tribe, the tribal officials, various
companies owned by the tribal officials, oil and gas companies, and
other private companies he alleges are complicit in this extortionate
behavior. Most of the defendants filed motions to dismiss on various
grounds and the district court dismissed Harvey’s claims against all
of the defendants. On direct appeal, Harvey seeks to set aside the
dismissals. We affirm the dismissal of the Ute Tribe under sovereign
immunity and the dismissal of Newfield, LaRose Construction, and
D. Ray C. Enterprises for failure to state a claim upon which relief
can be granted. But we vacate the dismissal of the remaining
defendants and remand for further proceedings consistent with the
tribal exhaustion doctrine.
   ¶3     Given the somewhat unique character of this opinion, we
take this opportunity to explain the outcome. All sitting members
concur in the entirety of the opinion, except for Part IV, in which
Chief Justice Durrant and Associate Chief Justice Lee dissent. Justice
Himonas concurs in all of the analysis in the majority opinion and
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                        Opinion of the Court

writes separately to further explain his reasons for joining. The
majority opinion incorporates Justice Himonas’s concurring opinion.
                            BACKGROUND
   ¶4     The Ute Tribal Employment Rights Office (UTERO), a
subdivision of the Ute Tribal government, manages the tribe’s
business activities and internal affairs. There are three members of
UTERO who are named parties in this action: Director Sheila
Wopsock, Commissioner Dino Cesspooch, and Commissioner Jackie
LaRose (collectively “tribal officials”).
   ¶5     Ryan Harvey and his wife, as beneficiaries of their
respective trusts, own Rocks Off, Inc. and Wild Cat Rentals, Inc.
Rocks Off derives most of its income from providing dirt, sand, and
gravel to oil and gas companies including Newfield. 2 Wild Cat
Rentals leases heavy equipment to other companies and individuals.
Both are located on private fee land and do not directly access Ute
Tribal land, but the items they sell and lease are often used on tribal
land by the leasing or buying companies.
    ¶6    Beginning in late 2012, Commissioner Cesspooch began
demanding that Harvey obtain permits for his businesses from the
UTERO Commission or Commissioner Cesspooch would “shut
[them] down.” 3 Harvey attempted to explain that his businesses did
not operate directly on tribal land, so he should not need a permit;
however, Commissioner Cesspooch continued to put pressure on
Harvey by allegedly threatening to impound all of his heavy
equipment. 4 Harvey eventually relented and obtained a Ute
Business License and an Access Permit from UTERO for Rocks Off.
   ¶7    Shortly after Harvey obtained the license and permit,
Commissioner Cesspooch claimed that the license and permit were
forged. Harvey met with Commissioner Cesspooch and discussed



   2 “Newfield,” as used in this opinion, refers to Newfield
Production Co., Newfield Rocky Mountains, Inc., Newfield RMI,
LLC, and Newfield Drilling Services, Inc.
   3  We recite the facts as pled in the complaint because, on a
motion to dismiss, “we accept the plaintiff’s description of facts
alleged in the complaint to be true . . . .” Am. W. Bank Members, L.C.
v. State, 2014 UT 49, ¶ 7, 342 P.3d 224 (citation omitted).
   4  Harvey alleges that the majority of these demands were made
off of reservation land.

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                       Opinion of the Court

the issue. After the meeting, Harvey believed that the
misunderstanding had been corrected and that Commissioner
Cesspooch was no longer challenging the validity of the documents.
   ¶8     Not long after the meeting, Harvey was driving down a
road off of tribal land when Commissioner Cesspooch “pulled his
vehicle next to [Harvey’s] and aggressively pointed for him to pull
over.” After pulling into a parking lot, Commissioner Cesspooch
and Harvey had a conversation, during which Commissioner
Cesspooch told Harvey that he “sure needed a good riding horse.”
Harvey understood this to be a demand for a bribe, but did not
agree to pay or pay any money at that time.
   ¶9   On March 15, 2013, soon after the incident with
Commissioner Cesspooch, Harvey received a letter that was sent by
the UTERO Commission and signed by Director Wopsock. It stated,
      [T]he Director of the [Energy and Mineral] Department
      has decided to revoke your access permit effective
      immediately. . . .
      The UTERO Ordinance necessarily requires that all
      employers subject to its Ordinance be lawfully
      permitted on the Reservation to perform work. Without
      lawful entrance upon the Reservation, Rocks Off, Inc.
      fails to meet the minimum standard to perform work
      under the provisions of the UTERO Ordinance.
      In addition to the above described actions, this letter
      also serves as a formal notice . . . that the UTERO
      Commission believes that you are not in compliance
      with the terms of the [UTERO] Ordinance. Specifically,
      the UTERO Commission has reason to believe that your
      company has been engaging in potentially fraudulent
      activities, including the submission of false and
      inaccurate    official tribal, state,   and    federal
      documents. . . .
    ¶10 Then, on March 20, 2013, the UTERO Commission sent a
letter to “all Oil & Gas Companies.” It stated that “Rocks Off, Inc. –
Ryan Harvey,” along with another business that is not a party to this
case, no longer had access permits “for failure to comply with the
UTERO Ordinance . . . .” It went on,
      As a result of such action, these businesses and
      individuals are no longer authorized to perform work
      on the Uintah and Ouray Reservation. Any use of these
      businesses and individuals by an employer doing work
      on the Reservation after receipt of this Notice may result
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                         Opinion of the Court

       in the assessment of penalties and/or sanctions against
       such employer to the fullest extent of the law.
    ¶11 After receiving this letter, Newfield and other oil and gas
companies ceased using Rocks Off, and ceased using other
businesses that leased or bought items from Rocks Off. Harvey
alleges that Commissioner LaRose, who owns an interest in LaRose
Construction, received bribes and work from Harvey’s competitor,
Huffman Enterprises, to induce Commissioner LaRose to abuse his
position and divert business away from Rocks Off.
    ¶12 Harvey brought this action seeking declaratory judgments
that the tribe and its officials exceeded their jurisdiction, injunctions
against all of the defendants, and damages. He brought seven
claims. Two are federal claims that the tribe and the tribal officials
exceeded their jurisdiction. Five of his claims are state law claims:
1) Tortious Interference with Economic Relations; 2) Extortion
against Cesspooch and Wopsock; 3) Utah Antitrust Act violations;
4) Blacklisting; and 5) Civil Conspiracy. Three motions to dismiss the
amended complaint were filed by the different defendants. The Ute
Tribe, Huffman Enterprises, and L.C. Welding & Construction
moved to dismiss the tribe for lack of subject matter jurisdiction
under the theory of tribal sovereign immunity and under the tribal
exhaustion doctrine. See UTAH R. CIV. P. 12(b)(1). They also moved to
dismiss the other defendants, arguing that the tribe is a necessary
and indispensable party that cannot be joined to the action. See id.
12(b)(7); id. 19. All of the other defendants joined in this motion. 5
Various other defendants moved to dismiss for failure to state a
claim upon which relief can be granted. See id. 12(b)(6). After all of
the motions to dismiss had been completely briefed, and after oral
arguments were held, Harvey moved to supplement his amended
complaint under Utah Rule of Civil Procedure 15(d). The district



   5  The district court’s judgment states that the tribe’s motion
under rule 12(b)(7) was “joined by all of the defendants.” However,
we note a procedural oddity. Scamp Excavation was served with the
amended complaint on September 26, 2013. In our review of the
record, Scamp did not file an answer or a motion under Utah Rule of
Civil Procedure 12. Neither did Scamp join in any of the other
parties’ motions to dismiss below nor file a brief on appeal. We raise
this issue because we ultimately remand the case, but we do not
address its effects on the court’s judgment because Harvey did not
raise it in his brief.

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                     HARVEY v. UTE INDIAN TRIBE
                       Opinion of the Court

court held that the motion to supplement the amended complaint
was untimely, refused to consider the additional facts in the
supplement, and dismissed the amended complaint against all of the
defendants with prejudice.
    ¶13 The district court held that the tribe and the tribal officials,
in their official capacities, enjoyed sovereign immunity and
dismissed them under Utah Rule of Civil Procedure 12(b)(1) for lack
of subject matter jurisdiction. The remaining defendants, including
the tribal officials in their individual capacities, were dismissed
under rule 12(b)(7) for the inability to join the tribe, which the court
held was an indispensable party. Finally, Newfield, LaRose
Construction, and D. Ray C. Enterprises were dismissed on alternate
grounds under rule 12(b)(6) for failure to state a claim upon which
relief may be granted. Although the district court did not directly
rule on the tribal exhaustion doctrine, stating that it “has already
granted the Tribe’s Motion to Dismiss, making this issue moot,” it
essentially did so in substance. It stated that Harvey’s claim that the
tribal officials exceeded the jurisdiction of the tribe or acted outside
the scope of their authority under tribal law must be addressed in
the tribal court.
                       STANDARD OF REVIEW
    ¶14 “[S]ubject matter jurisdiction is a question of law” that is
reviewed for correctness, “and we accordingly afford no discretion
to [the district court’s] decision.” Johnson v. Johnson, 2010 UT 28, ¶ 6,
234 P.3d 1100. We review the grant of a motion to dismiss under
Utah Rule of Civil Procedure 12(b)(6) for correctness. St. Benedict’s
Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 196 (Utah 1991). We
review a district court’s dismissal of a complaint for failure to join an
indispensable party for abuse of discretion and the district court’s
underlying legal conclusions for correctness. See Green v. Louder,
2001 UT 62, ¶ 40, 29 P.3d 638 (“A trial court’s determination of
whether a party should be joined to an action will not be disturbed
absent an abuse of discretion.”); Salt River Project Agric. Improvement
& Power Dist. v. Lee, 672 F.3d 1176, 1179 (9th Cir. 2012) (“We review a
Rule 19 dismissal for abuse of discretion and underlying legal
conclusions de novo.”). We review a district court’s denial of a
motion to supplement a pleading for abuse of discretion. See Rowley
v. Milford City, 352 P.2d 225, 226 (Utah 1960) (“[P]ermitting
supplementary pleadings is largely discretionary with the trial
court.”).




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                                ANALYSIS
    ¶15 We first discuss the Ute Tribe’s immunity from suit. Next,
we address the immunity enjoyed by the tribal officials in their
official and their individual capacities. We then determine that the
tribe is not a necessary and indispensable party, but that the extent
of the tribe’s jurisdiction should be determined by the tribal court in
the first instance. We then address Harvey’s motion to supplement
his amended complaint. Finally, we address the various motions to
dismiss that were granted under Utah Rule of Civil Procedure
12(b)(6).
  I. THE UTE TRIBE DID NOT WAIVE SOVEREIGN IMMUNITY
    ¶16 “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). This immunity extends to on- or off-reservation
activities, id. at 760, and includes claims in “civil actions for
injunctive or declaratory relief.” Santa Clara Pueblo v. Martinez, 436
U.S. 49, 59 (1978). “The issue of sovereign immunity is
jurisdictional,” depriving this court of jurisdiction if the tribe has not
waived its immunity or Congress has not authorized the suit. Ramey
Constr. Co. v. Apache Tribe of Mescalero Reservation, 673 F.2d 315, 318
(10th Cir. 1982). Additionally, the “waiver of sovereign immunity
cannot be implied but must be unequivocally expressed.” Santa Clara
Pueblo, 436 U.S. at 58 (internal quotation marks omitted) (citation
omitted); see also C & L Enters., Inc. v. Citizen Band Potawatomi Indian
Tribe of Okla., 532 U.S. 411, 418 (2001) (A tribe’s waiver of sovereign
immunity “must be ‘clear.’” (citation omitted)).
    ¶17 The district court held that the Ute Tribe did not waive its
sovereign immunity, but Harvey argues that the tribe has waived it
by making a general appearance in the case. Harvey claims that the
tribe made a general appearance when it sought “affirmative relief
from the trial court” by moving to dismiss itself under sovereign
immunity and moving to dismiss the remaining defendants because
the tribe is a necessary and indispensable party. The tribe counters
Harvey’s general appearance argument on two grounds. First, the
tribe argues that sovereign immunity is an issue of subject matter
jurisdiction, and that “[t]he doctrines of ‘general’ and ‘special’
appearance . . . are associated with personal jurisdiction only.” Curtis
v. Curtis, 789 P.2d 717, 725 n.17 (Utah Ct. App. 1990), overruled on
other grounds by In re Adoption of Baby E.Z., 2011 UT 38, 266 P.3d 702.
It therefore argues that, even if the tribe made a general appearance,
that action cannot constitute a waiver of its sovereign immunity.

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                      HARVEY v. UTE INDIAN TRIBE
                        Opinion of the Court

Second, the tribe argues that filing a motion to dismiss does not
constitute a clear and unequivocal waiver of sovereign immunity.
    ¶18 Prior to the promulgation of Utah Rule of Civil Procedure
12, a party that made a general appearance in a case waived any
claim that the court lacked personal jurisdiction. If the party made a
special appearance with the sole purpose of challenging the court’s
jurisdiction, the party’s jurisdictional argument was not waived.
CHARLES ALAN WRIGHT ET AL., 5C FED. PRAC. & PROC. CIV. § 1362 (3d
ed. 2017 update) (“Formerly, a jurisdictional challenge was made by
means of a . . . ‘special’ appearance. However, if a challenge of this
type was joined with any nonjurisdictional defenses, the appearance
became ‘general’ and the party’s right to object to the court’s
jurisdiction over his or her person was deemed waived.” (citations
omitted)); but see UTAH R. CIV. P. 12(b) (“No defense or objection is
waived by being joined with one or more other defenses or
objections in a . . . motion . . . .”). This only applied to personal
jurisdiction, as subject matter jurisdiction can be raised at any time
during the pendency of the case and typically cannot be waived. In
re Adoption of Baby E.Z., 2011 UT 38, ¶ 25 (“[S]ubject matter
jurisdiction goes to the heart of a court’s authority to hear a case, it is
not subject to waiver and may be raised at any time . . . .” (citation
omitted)). Thus, the common law doctrine of general appearances
does not apply to subject matter jurisdiction.
    ¶19 However, while sovereign immunity has been classified as
an issue of subject matter jurisdiction, it is not the same as other
defects in subject matter jurisdiction. Cash Advance & Preferred Cash
Loans v. State, 242 P.3d 1099, 1113 (Colo. 2010) (en banc) (stating that
courts vary on whether sovereign immunity affects subject matter
jurisdiction, and holding that, “tribal sovereign immunity bears a
substantial enough likeness to subject matter jurisdiction to be
treated as such for procedural purposes”). Subject matter
jurisdiction, generally, cannot be waived, Curtis, 789 P.2d at 726, but
sovereign immunity can be waived. Kiowa Tribe of Okla., 523 U.S. at
754. When sovereign immunity itself has been waived, there is no
defect with subject matter jurisdiction. The tribe does not waive
subject matter jurisdiction; it waives sovereign immunity, which
removes the jurisdictional bar. Thus, the issue is not whether the
tribe has waived subject matter jurisdiction by making a general
appearance (which is not possible), but whether it has clearly and
unequivocally waived sovereign immunity, thereby removing the
defect in jurisdiction. There may very well be instances in which a
tribe takes actions in a lawsuit that clearly and unequivocally waive
its sovereign immunity.

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                         Opinion of the Court

    ¶20 Harvey cites three cases supporting the proposition that
the Ute Tribe can, and did, clearly and unequivocally waive its
sovereign immunity by its actions in the current lawsuit. In Friends of
East Willits Valley v. County of Mendocino, the court stated that a
“[t]ribe waived sovereign immunity previously when it made a
general appearance in this case.” 123 Cal. Rptr. 2d 708, 715 (Cal. Ct.
App. 2002). But that court did not cite any authority for the
proposition nor did it discuss any facts that led the court to conclude
that the tribe had made a general appearance. Additionally, the
court held that the tribe had “expressly waived sovereign
immunity” in a contract. Id. Friends is not persuasive because it
contains no analysis, cites no authority, and relied on an
independent basis for holding that the tribe’s sovereign immunity
had been waived. The next case cited by Harvey, Nushake, Inc. v.
State Compensation Insurance Fund, is likewise unpersuasive because
there was a settlement agreement containing an unequivocal waiver
of immunity and a consent to enforcement of the agreement in state
court. No. CGC-05-441299, 2011 Cal. Super. LEXIS 319, at *1 (Cal.
App. Dep’t Super. Ct. Apr. 29, 2011). The final case cited by Harvey
is United States v. Oregon, 657 F.2d 1009 (9th Cir. 1981). In that case,
the tribe intervened in an ongoing lawsuit to “protect its treaty
fishing rights.” Id. at 1014. The court held that the tribe’s
intervention “constitutes consent.” Id.
    ¶21 At most, the cases cited by Harvey show that a tribe could
possibly waive its immunity when it proactively enters litigation.
This case is clearly different. Here, the Ute Tribe was sued and then
sought to dismiss the complaint against itself under sovereign
immunity, and against its officers and the other defendants for
failure to join an indispensable party—namely, the failure to keep
the Ute Tribe as a defendant. Moving to dismiss itself on sovereign
immunity grounds is the opposite of a clear and unequivocal waiver
of immunity; in fact, it is an assertion of that immunity.
    ¶22 Likewise, moving to dismiss its officers and the other
defendants from the case for the inability to add the tribe as a party
does not constitute a clear and unequivocal waiver of immunity.
Moving to dismiss the other defendants for failure to join an
indispensable party is not the same as filing a complaint or moving
to intervene in a case. By filing a complaint or intervening in a case,
a party proactively enters litigation and “makes himself vulnerable
to complete adjudication by the . . . court of the issues in litigation
between the” parties. United States v. Oregon, 657 F.2d at 1014
(citation omitted). Conversely, under Utah Rule of Civil Procedure
19(a)(2), a non-party has the right to get the case dismissed if the
person “claims an interest relating to the subject of the action and is
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                      HARVEY v. UTE INDIAN TRIBE
                        Opinion of the Court

so situated that the disposition of the action in [its] absence may . . .
impair or impede [its] ability to protect that interest.” One of the
central issues in this case is the ability of the tribe to require permits
and regulate oil and gas companies that access tribal land. The tribe
apparently did not want the case to proceed, and possibly affect its
interests, if the tribe were to be dismissed.
   ¶23 These motions to dismiss, alone, are not enough to
constitute a clear and unequivocal waiver of sovereign immunity.
Indeed, as noted above, the tribe’s actions were just the opposite of
waiving sovereign immunity: it asserted its sovereign immunity by
seeking to dismiss itself, and then sought to have the remainder of
the case dismissed so that its interests would not be affected by a
judgment in a case where the tribe was not a party. While we do not
definitively state how or if a tribe can waive its immunity by
participating in a lawsuit, we hold that the Ute Tribe did not
unequivocally waive its immunity in this case. We affirm the district
court and hold that the Ute Tribe is immune from suit and is
dismissed under Utah Rule of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction.
       II. CLAIMS AGAINST THE TRIBAL OFFICIALS IN THEIR
       OFFICIAL CAPACITIES AND IN THEIR INDIVIDUAL
                        CAPACITIES
    ¶24 Harvey’s amended verified complaint names Director
Wopsock, Commissioner LaRose, and Commissioner Cesspooch as
defendants in their individual and in their official capacities.
However, there are different standards with different remedies
when a tribal official is sued in her official capacity versus her
individual capacity. Unfortunately, the complaint neither separated
the claims or the remedies sought between the tribal officials in their
official versus their individual capacities, nor did Harvey separate
his arguments on appeal. He merely argues that the tribal officials
acted ultra vires and, therefore, are not immune from suit. 6



   6  Harvey incorrectly asserts that this is a fact that we must
assume to be true on a motion to dismiss. This confuses the
standard. On a motion to dismiss, “we accept the factual allegations
in the complaint as true” and we make all reasonable inferences in
favor of the non-moving party, Oakwood Vill. LLC v. Albertsons, Inc.,
2004 UT 101, ¶ 9, 104 P.3d 1226, but we do not accept a complaint’s
legal conclusions as true. Franco v. The Church of Jesus Christ of Latter-
day Saints, 2001 UT 25, ¶ 26, 21 P.3d 198 (“The sufficiency of
                                                         (continued . . .)
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                          Opinion of the Court

Nevertheless, we construe complaints “to do substantial justice,”
UTAH R. CIV. P. 8(f), often “disregard[ing] technicalities” and looking
at the “substance,” Lang v. Lang, 403 P.2d 655, 657 (Utah 1965). See
Fishbaugh v. Utah Power & Light, a Div. of Pacificorp, 969 P.2d 403, 406
(Utah 1998) (liberal notice pleading only requires pleadings to “be
sufficient to give ‘fair notice of the nature and basis of the claim
asserted and a general indication of the type of litigation involved’”
(citation omitted)). We therefore read his complaint “under our
liberal standard of notice pleading.” Canfield v. Layton City, 2005 UT
60, ¶ 14, 122 P.3d 622.
    ¶25     In parsing Harvey’s complaint, we must align the
remedies sought with the claims brought. In general, a claim cannot
be brought against a tribal official when the tribe is the real party in
interest (also known as an official capacity suit), because the tribe’s
sovereign immunity extends to the tribal official. See Lewis v. Clarke,
137 S. Ct. 1285, 1290 (2017) (“[C]ourts should look to whether the
sovereign is the real party in interest to determine whether
sovereign immunity bars the suit.”); Hardin v. White Mountain Apache
Tribe, 779 F.2d 476, 479 (9th Cir. 1985) (“[T]ribal immunity extends to
individual tribal officials acting in their representative capacity and
within the scope of their authority.”). There is at least one exception
to this general rule—a plaintiff may sue a tribal official in her official
capacity for an injunction under Ex parte Young, 209 U.S. 123 (1908).
   ¶26 A plaintiff can bring a claim against a tribal officer in her
individual capacity only if the individual, not the tribe, is the real
party in interest. “The critical inquiry” in determining the real party
in interest is “who may be legally bound by the court’s adverse
judgment.” Lewis, 137 S. Ct. at 1292–93. The plaintiff’s claim is “an



(continued . . .)
. . . pleadings ‘must be determined by the facts pleaded rather than
the conclusions stated.’” (citation omitted)); Am. W. Bank Members,
L.C. v. State, 2014 UT 49, ¶ 7, 342 P.3d 224 (“When ‘reviewing a
dismissal under Rule 12(b)(6) . . . we accept the plaintiff's
description of facts alleged in the complaint to be true, but we need
not accept extrinsic facts not pleaded nor need we accept legal
conclusions in contradiction of the pleaded facts.’” (citation
omitted)). Thus, we must accept the allegations that the tribal
officials took certain actions as true, but whether those actions
exceeded the tribe’s jurisdiction is a legal determination that we do
not accept as true.

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                        Opinion of the Court

official-capacity claim,” rather than an individual capacity claim,
“[if] the relief sought is only nominally against the official and in fact
is against the official’s office and thus the sovereign itself.” Id. at
1291. “In making this assessment, courts may not simply rely on the
characterization of the parties in the complaint, but rather must
determine in the first instance whether the remedy sought is truly
against the sovereign.” Id. at 1290. If the remedy operates against the
tribe or the “official’s office” rather than the individual, the claim is
not truly against the individual and it is typically barred by the
tribe’s sovereign immunity. Id. at 1291. If it operates solely against
the individual, such as a claim for money damages that only the
individual would be liable for, it is an individual capacity suit.
Harvey seeks multiple declaratory judgments and injunctions, the
majority of which are to operate against the “Ute Tribe and tribal
officials.” He also seeks general, specific, treble, and punitive
damages. We discuss Harvey’s claims and remedies against the
tribal officials in their official capacities, then in their individual
capacities.
          A. Harvey’s Claims Against the Tribal officials in
                       Their Official Capacities
    ¶27 Under Ex parte Young, state officials can be sued for
injunctive relief in their official capacities for violating federal law.
209 U.S. at 167. This is because federal law is the “supreme authority
of the United States,” and no subordinate sovereign, like a state or
tribe, can “impart to the official immunity” from the supreme law of
the land. Id. This doctrine “permits actions for prospective non-
monetary relief against state or tribal officials in their official
capacity to enjoin them from violating federal law.” Salt River Project
Agric. Improvement & Power Dist. v. Lee, 672 F.3d 1176, 1181 (9th Cir.
2012); see also Frazier v. Simmons, 254 F.3d 1247, 1253 (10th Cir. 2001);
Edelman v. Jordan, 415 U.S. 651, 667–68 (1974) (stating that plaintiffs
may seek prospective injunctions against officials, which may have
“an ancillary effect on the state treasury,” but not damages for past
actions). This doctrine applies to tribal officials as well as state
officials. Big Horn Cty. Elec. Co-op., Inc. v. Adams, 219 F.3d 944, 954
(9th Cir. 2000) (“[S]uits for prospective injunctive relief are
permissible against tribal officers under the Ex parte Young
framework.”) (citing Burlington N. R.R. Co. v. Blackfeet Tribe of
Blackfeet Indian Reservation, 924 F.2d 899, 901 (9th Cir. 1991), as
amended (Mar. 18, 1991), overruled on other grounds by Big Horn Cty.
Elec. Co-op., Inc., 219 F.3d 944).
   ¶28 On appeal, Harvey only indirectly argues for the
application of Ex parte Young. He argues that the tribal officials acted

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                          Opinion of the Court

ultra vires and are therefore not immune from suit. Many of the cases
Harvey cites for this proposition, however, cite back to Ex parte
Young. 7 See, e.g., Okla. Tax Comm’n v. Citizen Band Potawatomi Indian
Tribe of Okla., 498 U.S. 505, 514 (1991) (citing Ex parte Young for the
proposition that “we have never held that individual agents or
officers of a tribe are not liable for damages in actions brought by the
State”); Blackfeet Tribe, 924 F.2d at 901 (citing Ex parte Young for the
proposition that “sovereign immunity does not extend to officials
acting pursuant to an allegedly unconstitutional statute”).
    ¶29 The tribal officials, along with the Ute Tribe, argue that Ex
parte Young does not apply to a claim that the tribal officials
exceeded their authority under tribal law. 8 This assertion is correct—
Ex parte Young only applies when bringing a claim under federal law,
it does not apply to bringing a claim against a tribal official for
violating tribal law. See Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 124–25 (1984) (holding that Ex parte Young does not apply to
a claim that state officials violated state law); Salt River, 672 F.3d at
1181.
    ¶30 But this misses the point on some of Harvey’s claims. Two
of his claims assert that the Ute Tribe and the UTERO exceeded their
jurisdiction. These claims “seek an injunction restraining the Ute
Tribe and Tribal officials from attempting to regulate Plaintiffs’
business activities in a manner that exceeds the jurisdiction of the
Tribe, [and] the authority of the Tribal officials.” Harvey’s claim that
the tribal officials exceeded the tribe’s jurisdiction is a question of
federal law. Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471


   7  While Harvey only indirectly argues for Ex parte Young, the
tribe and the tribal officials directly argue against its application.
   8  The district court dismissed the complaint under this line of
reasoning. It stated that, “[w]hether the Tribal officials exceeded the
scope of authority given to them by the UTERO Ordinance
necessarily requires examining and interpreting the UTERO
Ordinance,” which the district court stated should be done in the
tribal courts, citing Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 16 (1987)
(“Adjudication of such matters by any nontribal court also infringes
upon tribal law-making authority, because tribal courts are best
qualified to interpret and apply tribal law.”). While the tribal court
should be granted the first right to interpret its own law, see infra
¶¶ 41–53, this misses the other claim that the officials exceeded the
scope of the tribe’s authority, which is a question of federal law.

                                      13
                       HARVEY v. UTE INDIAN TRIBE
                         Opinion of the Court

U.S. 845, 851 (1985) (“[F]ederal law defines the outer boundaries of
an Indian tribe’s power over non-Indians.”). The remedies sought
are clearly against the tribe as the real party in interest. For this
reason, we treat Harvey’s claims for injunctions as against the tribal
officials acting in their official capacities. The tribal officials, in their
official capacities, do not enjoy sovereign immunity for these two
claims and the injunctions sought under these two claims.
    ¶31 But any claim that the tribal officials, in their official
capacities, exceeded the authority granted to them by the tribe is not
subject to Ex parte Young and is barred under sovereign immunity,
along with the rest of Harvey’s state law claims and requests for
monetary damages. See Halderman, 465 U.S. at 124–25 (Ex parte Young
applies only to federal law claims). Harvey is not entitled to
damages against the officials in their official capacities because
official capacity suits, under Ex parte Young, may only be brought for
prospective injunctive relief. Thus, we treat Harvey’s claims for
injunctive relief as against the officials in their official capacities, and
his claims for damages as against the officials in their individual
capacities.
      B. Harvey’s Claims Against the Tribal Officials in Their Individual
                              Capacities
    ¶32 The U.S. Supreme Court recently clarified that a tribal
official is not protected by sovereign immunity when she is sued in
her individual capacity. Lewis, 137 S. Ct. at 1291. The court stated
that, in “[p]ersonal-capacity suits” the plaintiff “seek[s] to impose
individual liability upon a government officer for actions taken under
color of [tribal] law.” Id. Thus, because the individual—not the
tribe—will “be legally bound by the court’s adverse judgment,”
sovereign immunity is not applicable. Id. at 1292–93. While not
entitled to sovereign immunity, “[a]n officer in an individual-
capacity action . . . may be able to assert personal immunity
defenses.” Id. at 1291.
     ¶33 Harvey has asserted claims against the tribal officials in
their individual capacities for damages, making the individuals the
real parties in interest. We do not hold that Harvey has valid claims
against the tribal officials in their individual capacities, merely that
they do not enjoy sovereign immunity at this stage of the litigation.
If, at some point, it becomes clear that any remedy sought by Harvey
would essentially operate against the tribe, those claims must be
dismissed against the officials unless they comply with the
requirements of Ex parte Young. The district court must tread
carefully in this area to avoid meddling with the internal operations
of the tribal government.
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                          Opinion of the Court

    III. THE DISTRICT COURT ERRED IN DISMISSING THE CASE
        FOR FAILURE TO JOIN AN INDISPENSABLE PARTY
    ¶34 Having determined that the tribe is entitled to sovereign
immunity, but that the tribal officials are not, we are led to the
ultimate question. Did the district court err in dismissing the tribal
officials and the remaining defendants because the Ute Tribe is a
necessary and indispensable party but is immune from suit? Utah
Rule of Civil Procedure 12(b)(7) mandates the dismissal of an action
for “failure to join an indispensable party.” Dismissal under rule
12(b)(7) is only appropriate under the circumstances listed in Utah
Rule of Civil Procedure 19. Ludlow v. Salt Lake Cty. Bd. of Adjustment,
893 P.2d 1101, 1103 (Utah Ct. App. 1995). Rule 19 necessitates a three
step analysis: 1) is the person necessary, 2) can the person be joined,
and 3) is the person indispensable. See UTAH R. CIV. P. 19; Landes v.
Capital City Bank, 795 P.2d 1127, 1130–32 (Utah 1990).
    ¶35 A person is necessary under rule 19(a) in three different
instances. First, a person is necessary if in the person’s “absence
complete relief cannot be accorded among those already parties.”
UTAH R. CIV. P. 19(a)(1). Second, the person is necessary if she claims
an interest in the action and her absence would “impair or impede
[that person’s] ability to protect that interest.” Id. 19(a)(2)(i). Finally,
the person is necessary if she claims an interest in the action and her
absence would “leave any of the persons already parties subject to a
substantial risk of incurring double, multiple, or otherwise
inconsistent obligations.” Id. 19(a)(2)(ii). Under these standards, the
Ute Tribe is not a necessary party in this case.
    ¶36 The Ute Tribe is immune from all of Harvey’s claims in
this case. See supra ¶¶ 16–23. Also, the tribe claims an interest in the
outcome of this case because any court order must determine the
ability of the tribe, and its officials, to issue orders to oil and gas
businesses operating on tribal land. But the tribal officials are not
immune from suit under Ex parte Young, 209 U.S. 123 (1908). Salt
River Project Agricultural Improvement and Power District v. Lee is
instructive. 672 F.3d 1176 (9th Cir. 2012). In that case, Navajo officials
argued that the Navajo Nation was a necessary and indispensable
party. Id. at 1178. The court held that the Navajo Nation was not a
necessary party because the tribal officials, acting in their official
capacities, would adequately represent the interests of the tribe. Id.
at 1181. This case is similar.
   ¶37 First, complete relief may be granted to Harvey because he
could obtain an injunction against the tribal officials from interfering
with his businesses. This injunction would “remain[] in force against
the officer’s successors.” Id. at 1180. While Harvey cannot get an
                                      15
                      HARVEY v. UTE INDIAN TRIBE
                        Opinion of the Court

injunction against the Ute Tribe, an injunction against the tribal
officials would essentially operate against the tribe. Id. at 1181
(stating that tribe could not enforce its ordinance “without the aid of
its officers . . . who would be bound by the . . . injunction”).
Additionally, his claims for money damages may be entered against
the tribal officials in their individual capacities and against the other
defendants, assuming they are liable under some legal theory.
Harvey could thus receive his requested relief even without adding
the tribe as a party.
    ¶38 Second, the tribe will not be impaired or impeded from
protecting its interests, because the tribal officials “can be expected
to adequately represent the [Ute Tribe’s] interests.” Id. at 1180. There
is no argument that the tribal officials will do anything antithetical to
the interests of the tribe or that they will fail to make any
“reasonable argument that the tribe would make if it were a party.”
Id.
    ¶39 Finally, there is no risk that the other parties may be
subjected to inconsistent obligations. Defendant Newfield argues
that if the tribe is not a party, it could be subject to an order from a
state court requiring it to pay damages to Harvey for not using
Harvey’s services, yet be subject to the March 20th letter from the
UTERO prohibiting Newfield from using Harvey’s services as long
as Newfield desires to continue to operate on tribal land. No such
threat exists if the tribal officials are enjoined from enforcing the
March 20th letter. Additionally, if other tribal officials “attempted to
enforce the [March 20th letter] against [Newfield], the plaintiffs
would be free . . . to seek an injunction against those officials.” Id. at
1181. None of the defendants have argued any other possible
conflicting obligations.
    ¶40 The Ute Tribe does not meet any of rule 19’s requirements
to be a necessary party because the presence of the tribal officials, in
their official capacities under Ex parte Young, addresses all of the
concerns raised in rule 19. The district court erred in dismissing the
tribal officials and the other defendants under rule 12(b)(7).
 IV. THE TRIBAL EXHAUSTION DOCTRINE PREVENTS UTAH
 STATE COURTS FROM REVIEWING THIS CASE AT THIS TIME
    ¶41 While we hold that the tribal officials may be sued for an
injunction in their official capacities under Ex parte Young, 209 U.S.
123 (1908), and that the defendants other than the Ute Tribe should
not have been dismissed under rule 12(b)(7), we hold that Harvey



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                         Opinion of the Court

failed to exhaust tribal remedies. 9 The exhaustion of tribal remedies
doctrine is founded on the premise that “[p]romotion of tribal self-
government and self-determination require[] that the Tribal Court
have ‘the first opportunity to evaluate the factual and legal bases for
the challenge’ to its jurisdiction.” Iowa Mut. Ins. Co. v. LaPlante, 480
U.S. 9, 15–16 (1987) (citation omitted). The Ninth Circuit has held
that exhaustion of tribal remedies, when a tribe’s jurisdiction is at
issue, is mandatory before another court exercises jurisdiction.
       The Supreme Court has mandated the exhaustion of
       tribal remedies as a prerequisite to a federal court's
       exercise of its jurisdiction: “[E]xhaustion is required
       before such a claim may be entertained by a federal
       court.” In Iowa Mutual Ins. v. LaPlante, the Supreme
       Court said that “federal policy . . . directs a federal court
       to stay its hand,” and “proper respect . . . requires” tribal
       remedy exhaustion. Therefore, non-Indian petitioners
       “must exhaust available tribal remedies.” The LaPlante
       Court emphasized that “National Farmers Union requires
       that the issue of jurisdiction be resolved by the Tribal
       courts in the first instance.” The Supreme Court’s
       mandate of exhaustion of tribal court remedies as a
       prerequisite to a federal court’s exercise of its
       jurisdiction applies squarely to this case.




   9 The district court did not rule directly on this issue because it
had already dismissed the entire complaint under Utah Rules of
Civil Procedure 12(b)(1) and (b)(7). Yet, the district court essentially
did so implicitly by directing Harvey to the tribal court. It held that
Harvey “could have raised [his] claims through tribal administrative
proceedings and perhaps in the Tribal Court.” In the district court,
Harvey argued “that the Tribal Court is not neutral or fair,” but the
court saw “such an allegation, without any factual basis, no
differently than if [Harvey] claimed the State’s district or justice
courts were inherently biased against a particular class of parties.”
Additionally, on appeal, Harvey argues against tribal exhaustion
because “[i]n essence, the trial court determined that it was
appropriate that Plaintiffs subject themselves to tribal regulatory
control.” Thus, while the district court’s order says it does not rule
on this issue, it did so implicitly, as acknowledged by Harvey on
appeal. For this reason, we address this issue.

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                      HARVEY v. UTE INDIAN TRIBE
                        Opinion of the Court

Burlington N. R.R. Co. v. Crow Tribal Council, 940 F.2d 1239, 1245 (9th
Cir. 1991) (alterations in original) (citations omitted).
    ¶42 The requirement that plaintiffs exhaust their remedies in
tribal court is a prudential matter, “based on principles of comity.”
Nevada v. Hicks, 533 U.S. 353, 398 (2001); see also Strate v. A-1
Contractors, 520 U.S. 438, 451 (1997) (“[T]he exhaustion rule stated in
National Farmers [is] ‘prudential.’”). When a case concerns a tribe’s
right to exclude individuals from their land, plaintiffs should
exhaust their remedies in tribal court before getting a review in any
other court. New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333
(1983) (“A tribe’s power to exclude nonmembers entirely or to
condition their presence on the reservation is . . . well established.”);
Strate, 520 U.S. at 454 (“tribes retain considerable control over
nonmember conduct on tribal land”). This is because the tribe’s right
to “manage the use of [tribal] territory and resources by both
members and nonmembers [and] to undertake and regulate
economic activity within the reservation” is necessary to protect
tribal self-government. Mescalero Apache Tribe, 462 U.S. at 335. This
doctrine does not require a case to be pending in the tribal court. See
Crow Tribal Council, 940 F.2d at 1246 (exhaustion requirement applies
even when the plaintiff “sought a declaration of sovereign authority
before it was ever prosecuted in Crow Tribal Court or otherwise
subjected to Crow tribal authority”); Altheimer & Gray v. Sioux Mfg.
Corp., 983 F.2d 803, 814 (7th Cir. 1993) (“Several appellate courts . . .
have applied the tribal exhaustion rule to cases in which there
existed no first-filed tribal court action.”); Weeks Constr., Inc. v. Oglala
Sioux Hous. Auth., 797 F.2d 668, 674 (8th Cir. 1986).
    ¶43 In this case, the majority of the actions Harvey complains
of relate to the ability of the Ute Tribe to exclude non-Indians from
their reservation. Harvey seeks injunctions to restrain the tribe and
tribal officials from “interfering in Plaintiffs’ relationship with oil
and gas companies,” and from “harassing, threatening, intimidating,
extorting, and retaliating against Plaintiffs” and companies that do
business with the plaintiffs. Harvey’s factual allegations in support
of these requests for injunctive relief, and the claims that the tribe
exceeded its jurisdiction, are centered on four different actions that
allegedly harmed the plaintiffs. First, tribal officials threatened to
“’shut down’ Plaintiffs’ businesses and confiscate Plaintiffs’
equipment” if Harvey did not obtain a UTERO license and permit,
which Harvey eventually did, even though he argues he does not in
fact access tribal land. Second, even after Harvey obtained a permit,
Commissioner Cesspooch “attempted to extort money from Ryan
[Harvey] in the IFA parking lot saying that he ‘sure needed a good
riding horse.’” Third, Harvey alleges that “[a] couple of weeks after
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                         Opinion of the Court

refusing to pay Commissioner Cesspooch,” Harvey’s license and
permit were revoked. Finally, Harvey alleges that on March 20, 2013,
the UTERO sent a letter to all oil and gas companies threatening
sanctions against any business utilizing Harvey’s services. We
address each of these allegations in turn.
    ¶44 Any harm actually suffered by Harvey is tied to whether
the tribal officials had the authority to require him to obtain a
permit, revoke his permit, and issue a letter telling oil and gas
companies that they would suffer sanctions if they continued to use
Harvey and operate on tribal lands. 10 The central question thus
becomes whether the tribal officials were regulating who may come
onto tribal land. Whether the tribe may demand that Harvey obtain
a permit is a jurisdictional question that must be heard in the tribal
courts in the first instance. Whether the tribal officials unlawfully
revoked Harvey’s permit is a question of tribal law, as the regulation
of who may enter tribal lands is a matter of self-governance. The
tribal court must have the first opportunity to address these issues.
Otherwise, we may be supplanting tribal law that manages tribal
governmental operations with state tort law.
    ¶45 The March 20th letter’s primary and direct effect also
governs who may enter tribal land. The tribe issued the letter to “all
Oil & Gas Companies,” including defendant Newfield. The letter
states:
        [T]he UTERO Commission revoked the UTERO
        License for [Rocks Off and Harvey] for failure to
        comply with the UTERO Ordinance, Ord. No. 10-002
        (July 27, 2010).
        As a result of such action, these businesses and
        individuals are no longer authorized to perform work
        on the Uintah and Ouray Reservation. Any use of
        [Rocks Off or Ryan Harvey] by an employer doing
        work on the Reservation after receipt of this Notice
        may result in the assessment of penalties and/or
        sanctions against such employer to the fullest extent of
        the law.



   10Commissioner Cesspooch’s alleged attempt to extort Harvey
did not actually harm him since he did not pay the demand. The
harm that was actually caused to Harvey came when his permit was
revoked.

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                      HARVEY v. UTE INDIAN TRIBE
                        Opinion of the Court

The letter only directly impacts oil and gas companies wishing to
conduct business on Ute Tribal land. If an oil and gas company
wishes to continue to operate on Ute Tribal land and avoid
sanctions, they cannot use Rocks Off or Ryan Harvey. While the
letter also affects Rocks Off and Harvey, the oil and gas companies
may very well decide not to operate on Ute Tribal land and continue
to use Harvey in any way they see fit. Either way, the tribe’s ability
to regulate business operations on their land, even if it may have an
indirect effect on business off of their land, is a core question of tribal
self-government.
   ¶46 Additionally, the actual effect of the letter on Harvey is a
matter of interpretation. The letter clearly, if only indirectly, affects
Harvey’s businesses. However, it is susceptible to two different
readings. First, the letter could be read to prohibit all oil and gas
companies from using Harvey anywhere, even off of the reservation.
This interpretation is supported by the letter’s language that “[a]ny
use of” Harvey will result in penalties. The second interpretation is
that oil and gas companies may not use Harvey’s equipment or
products on tribal land. “Any use” may be qualified by the preceding
sentences saying that Rocks Off and Harvey “are no longer
authorized to perform work on the Uintah and Ouray Reservation.”
(Emphasis added).
    ¶47 Thus, the letter could be interpreted to only restrict the use
of Harvey’s equipment and material on tribal land or to affect use off
tribal land. Either of these interpretations are reasonable, and under
the doctrine of tribal exhaustion, this question of interpretation
should be resolved in the first instance by a tribal court. LaPlante, 480
U.S. at 16 (stating that the tribal court should have “‘the first
opportunity to evaluate the factual and legal bases for the challenge’ to
its jurisdiction” (emphasis added) (citation omitted)). If the letter
restricts use of Harvey off of the reservation, it might exceed the
jurisdiction of the tribe. If it only restricts use of Harvey on the
reservation, it may be within the authority of the tribe.
    ¶48 In a similar case decided by the Ninth Circuit, the Crow
Tribe enacted an ordinance that governed private railroad
operations across tribal lands. Crow Tribal Council, 940 F.2d 1239. The
sole railroad operating on tribal lands filed for declaratory judgment
in federal court, alleging that “the ordinance is null and void
because it exceeds tribal sovereign power.” Id. at 1241. The Ninth
Circuit analyzed the “[t]hree imperatives arising from the nature of
tribal sovereignty” to determine if exhaustion was required. Id. at
1245.


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                          Opinion of the Court

    ¶49 First, the court analyzed the policy “supporting tribal self-
government,” and the subordinate policy of “provid[ing] the forum
whose jurisdiction is being challenged the first opportunity to
evaluate the factual and legal bases for the challenge.” Id. (citations
omitted). The court held that “the Crow Tribe must itself first
interpret its own ordinance and define its own jurisdiction,” as part
of its sovereign power, even if no action had been filed in tribal court
at that time. Id. at 1246. It went on to state that it was improper to
retain federal jurisdiction over a case involving an “uninterpreted
tribal ordinance” when there was “an obscure factual background.”
Id. This is directly on point in this case. We agree that, as a matter of
comity, the tribe should be given the first right to interpret the
March 20th letter and determine the tribe’s jurisdiction. The demand
that Harvey obtain a permit, the revocation of the permit, and the
subsequent March 20th letter could very well be within the authority
of the tribe. See Mescalero Apache Tribe, 462 U.S. at 333 (“A tribe’s
power to exclude nonmembers entirely or to condition their
presence on the reservation is . . . well established.”).
    ¶50 The second policy at play is judicial economy, to
“encourage[] more efficient procedures.” Crow Tribal Council, 940
F.2d at 1246. While the letter might be interpreted to prohibit the use
of Harvey by an oil and gas company off of tribal land, the Ute Tribe
could interpret this order to restrict the use of Harvey only on tribal
land. If the tribe were to interpret the order in this manner, Newfield
could still use Harvey’s businesses off of the reservation. This argues
in favor of requiring Harvey to exhaust his remedies in tribal court,
allowing that court to interpret the tribe’s order and vet the factual
challenge to the tribe’s jurisdiction as a matter of judicial economy.
    ¶51 The third policy in favor of exhaustion allows tribal courts
to “explain to the parties the precise basis for accepting jurisdiction,
and . . . also provide[s] other courts with the benefit of their expertise
in such matters in the event of further judicial review.” Id. (citation
omitted). Thus, forcing Harvey to litigate in tribal court provides
clarity to the parties and any reviewing court on how the tribe views
its own jurisdiction.
    ¶52 Harvey must exhaust his remedies in tribal court, even if
the tribal court must end up applying some state law. See LaPlante,
480 U.S. at 19 (“The alleged incompetence of tribal courts is not
among the exceptions to the exhaustion requirement . . . and would
be contrary to the congressional policy promoting the development
of tribal courts.”); Altheimer & Gray, 983 F.2d at 814 (“The
interpretation of another jurisdiction’s laws . . . does not alone
foreclose application of the tribal exhaustion rule. A tribal court,

                                     21
                     HARVEY v. UTE INDIAN TRIBE
                       Opinion of the Court

presumably, is as competent to interpret federal law as it is state
law.”); Brown v. Washoe Hous. Auth., 835 F.2d 1327, 1328 (10th Cir.
1988) (“[F]ederal court[s] must defer to tribal court remedies as a
matter of comity.”). Then, if Harvey does not agree with the tribe’s
determination of its jurisdiction, he will be able to seek review of the
tribal court’s order in federal court. Brown, 835 F.2d at 1329 (“Once
the tribal courts have acted, their determination of jurisdiction is
subject to review in federal court.”).
    ¶53 Finally, rather than dismissing Harvey’s case, on remand
the district court may choose to stay the state court proceedings to
await the outcome in the tribal court. If the tribal court, or a
reviewing federal court, determines that the tribal officials exceeded
their authority or the authority of the tribe, the remaining state law
causes of action may proceed. 11 But the determination to stay rather
than dismiss is best made in the district court. Nat’l Farmers Union
Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 857 (1985) (“Whether
the . . . action should be dismissed, or merely held in abeyance
pending the development of further Tribal Court proceedings, . . .
should be addressed in the first instance by the District Court.”). We
therefore remand to the district court for its determination on


   11  While the tribe’s jurisdiction is only directly at issue in
Harvey’s first two causes of action that seek injunctions against the
tribal officials, the extent of the tribe’s jurisdiction would be
informative, and possibly determinative, to Harvey’s other state law
claims for damages. For instance, to establish a claim of intentional
interference with economic relations, Harvey must establish that the
tribal officials intentionally interfered with Harvey’s existing or
potential economic relations by improper means causing injury to
Harvey. Eldridge v. Johndrow, 2015 UT 21, ¶ 70, 345 P.3d 553.
Whether the interference was by improper means requires us to
determine whether the tribal officials’ actions “were contrary to
statutory, regulatory, or common law or violated an established
standard of a trade or profession.” Anderson Dev. Co. v. Tobias, 2005
UT 36, ¶ 20, 116 P.3d 323 (citation omitted). The actual harm caused
to Harvey was caused by the March 20th letter that prohibited oil
and gas companies from using Harvey and Rocks Off. This requires
us to determine whether the letter exceeded the jurisdiction of the
tribe or violated some tribal law. If a tribal court determines that the
letter exceeded the tribe’s authority, it could be dispositive of this
claim. This further justifies requiring tribal exhaustion before
proceeding with any state law claims.

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                          Cite as: 2017 UT 75
                         Opinion of the Court

whether to stay or dismiss the case under the tribal exhaustion
doctrine. 12 However, in the event the district court determines to
stay proceedings, we address the remaining issues on appeal and
hold that Newfield, D. Ray C. Enterprises, and LaRose Construction
are dismissed under Utah Rule of Civil Procedure 12(b)(6). 13
        V. THE PLAINTIFFS’ MOTION FOR LEAVE TO AMEND
                  SHOULD BE GRANTED IN PART
    ¶54 After Harvey filed his amended complaint, the defendants
filed various motions to dismiss for failure to state a claim upon
which relief can be granted. After all of the briefing and oral
arguments on the motions to dismiss, Harvey moved to supplement
his amended complaint. Utah Rule of Civil Procedure 15 provides
that,
        [o]n motion and reasonable notice, the court may, on
        just terms, permit a party to file a supplemental
        pleading setting out any transaction, occurrence, or
        event that happened after the date of the pleading to
        be    supplemented.        The   court   may   permit
        supplementation even though the original pleading is
        defective in stating a claim or defense.
UTAH R. CIV. P. 15(d).
    ¶55 We have rarely had the opportunity to address this rule.
Despite the dearth of precedent, the plain language of the rule gives
the district court discretion to grant or deny such a motion by stating
that the court “may” allow a supplemental pleading. Arbogast Family
Tr. v. River Crossings, LLC, 2010 UT 40, ¶ 16, 238 P.3d 1035 (“[W]e
look to the express language of that procedural rule and to the cases
interpreting it.” (citation omitted)); Rowley v. Milford City, 352 P.2d
225, 226 (Utah 1960) (“[P]ermitting supplementary pleadings is
largely discretionary with the trial court.”). We therefore review the


   12  We acknowledge and agree with the excellent research and
analysis in Justice Himonas’s concurring opinion and charge the
district court to carefully follow his additional directions on remand.
   13  While we dismiss this case against these three defendants,
there are still numerous other defendants that would remain in the
case assuming the district court stays rather than dismisses the
entire case. For instance, Harvey’s claims for injunctions against the
tribal officials in their official capacities and his claims against the
tribal officials in their individual capacities would survive.

                                    23
                     HARVEY v. UTE INDIAN TRIBE
                       Opinion of the Court

district court’s denial of Harvey’s motion to supplement for abuse of
discretion.
   ¶56 As the standard for granting a motion under rule 15(d) is
very similar to that under 15(a), we look to our precedent under rule
15(a) for guidance. Compare UTAH R. CIV. P. 15(a)(2) (“The court
should freely give permission [to amend a pleading] when justice
requires.”), with id. 15(d) (court may allow supplemental pleading
“on just terms”). We hold that a motion to file a supplementary
pleading should be freely granted unless the court finds that factors
such as untimeliness, prejudice, bad faith, or futility of the
amendment would make such a grant unjust. Daniels v. Gamma W.
Brachytherapy, LLC, 2009 UT 66, ¶ 58, 221 P.3d 256.
    ¶57 In denying Harvey’s motion to supplement, the district
court found that it would be unjust to allow him to supplement his
complaint to overcome pleading deficiencies three years after the
first motion to dismiss was filed, and after briefing and oral
arguments had already been completed on the various motions to
dismiss. It alternatively held that any supplement was moot because
his complaint was dismissed in its entirety. The district court did not
abuse its discretion in refusing to allow the supplementary
complaint when conducting its analysis of the various motions to
dismiss. The motion to supplement was untimely because it was
brought after completion of the briefing and oral arguments on the
motions to dismiss. This delayed motion to supplement would have
prejudiced the defendants because, after fully briefing and arguing
their motions to dismiss, they would have had to go back and re-
brief and argue their motions.
    ¶58 While we hold that the district court did not abuse its
discretion in finding that it was untimely and prejudicial for
purposes of determining the motions to dismiss, we hold that the
court erred in dismissing the amended complaint in its entirety. The
district court, therefore, erred in holding that the supplementary
pleading was moot. While we decline to consider the supplemental
pleading for our analysis of the motions to dismiss, we hold that it
should be allowed as the case progresses, assuming no other
problems arise.
   VI. NEWFIELD, LAROSE CONSTRUCTION, AND D. RAY C.
 ENTERPRISES ARE DISMISSED UNDER UTAH RULE OF CIVIL
                  PROCEDURE 12(b)(6)
   ¶59 In addition to moving for dismissal under Utah Rule of
Civil Procedure 12(b)(7), Newfield, LaRose Construction, and D. Ray
C. Enterprises moved for dismissal under Utah Rule of Civil

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                           Opinion of the Court

Procedure 12(b)(6) for failure to state a claim upon which relief can
be granted. The district court ultimately dismissed these parties
under rule 12(b)(7), and also dismissed them on alternative grounds
under rule 12(b)(6). On appeal, Harvey challenges the dismissal of
these defendants under rule 12(b)(6).
    ¶60 Utah Rule of Civil Procedure 8(a) requires plaintiffs to
plead facts sufficient to show “that the party is entitled to relief.” To
survive a motion to dismiss, the complaint must allege facts
sufficient to satisfy each element of a claim, otherwise the plaintiff
has failed to show that she is entitled to relief. Williams v. State Farm
Ins. Co., 656 P.2d 966, 971 (Utah 1982) (“[W]hen the pleader
complains of conduct . . . by such general terms as libel,
intimidation, or false statements, the allegation of the conclusion is
not sufficient; the pleading must describe the nature or substance of
the acts or words complained of.”); MBNA Am. Bank, N.A. v.
Goodman, 2006 UT App 276, ¶ 6, 140 P.3d 589 (to adequately state a
claim for relief, the plaintiff “must have alleged sufficient facts . . . to
satisfy each element”); St. Benedict’s Dev. Co. v. St. Benedict's Hosp.,
811 P.2d 194, 201 (Utah 1991) (dismissing complaint for failure to
plead facts supporting one element of tortious interference with
existing economic relations). Harvey brings five state law claims
against these parties: 14 Utah Antitrust Act, civil conspiracy, tortious
interference with economic relations, extortion, 15 and blacklisting.
First, we address generally the allegations made against D. Ray C.
Enterprises and LaRose Construction, then we address each claim
against Newfield.
        A. Claims against D. Ray C. Enterprises and LaRose Construction
    ¶61 D. Ray C. Enterprises is mentioned in only three
allegations. The first is the jurisdictional statement, the other two say
essentially the same thing: D. Ray C. Enterprises is owned by
Cesspooch and it “participated in the conspiracy and derived


   14  As noted above, we treat Harvey’s first two claims as solely
against the tribe, as Harvey only alleges that the tribe and the tribal
officials acted utra vires.
   15 The complaint titles this claim “Extortion Against Cesspooch
and Wopsock.” However, the substantive allegations of this claim
discuss the “[c]o-conspirator, Newfield,” and speak in broad terms
with allegations against the “Defendants.” Because it is not entirely
clear against whom this claim is asserted, we treat it as against all
defendants.

                                      25
                     HARVEY v. UTE INDIAN TRIBE
                       Opinion of the Court

substantial economic benefit from the . . . unlawful restraint of
trade.” Harvey failed to plead any facts explaining what D. Ray C.
Enterprises actually did to engage in wrongdoing. “[T]he allegation
of the conclusion is not sufficient; the pleading must describe the
nature or substance of the acts or words complained of.” Williams,
656 P.2d at 971. We affirm the district court’s dismissal of D. Ray C.
Enterprises under Utah Rule of Civil Procedure 12(b)(6) for failure to
state a claim upon which relief can be granted.
   ¶62 Harvey alleges that LaRose Construction is owned, at least
partially, by LaRose and that “Commissioner LaRose received bribes
and work from defendant Huffman Enterprises, Inc. . . . in exchange
for Commissioner LaRose abusing his position as UTERO
Commissioner [by] wrongfully diverting business from [Harvey] to
Huffman.” The reasonable inference from this allegation is that
Commissioner LaRose used his position as a UTERO official to
benefit his company and himself. Thus, Harvey is attempting to hold
LaRose Construction liable for the gains it realized due to the
wrongful conduct of an owner.
    ¶63 Harvey does not allege any wrongful act committed by
LaRose Construction itself, just the alleged wrongful acts of
Commissioner LaRose that were taken in his capacity as a UTERO
official. Harvey had the burden to show why the company should be
liable for the acts of its owner. The owner and the company are two
separate and distinct legal entities.16 See Jones & Trevor Mktg., Inc. v.
Lowry, 2012 UT 39, ¶ 13, 284 P.3d 630 (“Ordinarily a corporation is
regarded as a legal entity, separate and apart from its stockholders.”
(citation omitted)). One cannot be held liable for the other’s actions
absent some legal theory, such as respondeat superior. Birkner v. Salt
Lake Cty., 771 P.2d 1053, 1056–57 (Utah 1989) (discussing
requirements to hold company liable for conduct of employee).



   16 On a motion to dismiss, we make all reasonable inferences in
favor of the non-moving party. If Harvey had alleged that LaRose
was the sole owner of LaRose Construction, or that he acted
according to a directive from LaRose Construction, our analysis
might be different. Because he alleges only that Commissioner
LaRose owns “an interest” in the company, and that he committed a
wrongful act in his individual capacity from which the company
benefited, we will not treat the two legal persons as one, nor will we
hold the company liable for the actions of someone who owns an
interest in it.

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                         Opinion of the Court

    ¶64 Harvey failed to plead any facts or make any legal
arguments why we should ignore the barrier between LaRose as an
individual and LaRose Construction, Inc. For this reason, he has
failed to meet his burden of persuasion on appeal and we affirm the
district court’s dismissal of LaRose Construction under rule 12(b)(6).
Bank of Am. v. Adamson, 2017 UT 2, ¶ 12, 391 P.3d 196 (“[A]n
appellant who fails to adequately brief an issue ‘will almost certainly
fail to carry its burden of persuasion on appeal.’” (citation omitted)).
                        B. Claims Against Newfield
1. Utah Antitrust Act
    ¶65 Harvey brings an antitrust claim under the Utah Antitrust
Act, UTAH CODE §§ 76-10-3101 to -3118. Utah Code section 76-10-
3104(1) provides that “[e]very contract, combination in the form of
trust or otherwise, or conspiracy in restraint of trade or commerce is
declared to be illegal.” 17 A contract, combination, or conspiracy
requires two or more people; it cannot consist of unilateral or
independent action. Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S.
752, 761 (1984) (In a Sherman Act claim, there must “be a ‘contract,
combination . . . or conspiracy’ between the manufacturer and other
distributors in order to establish a violation. Independent action is
not proscribed.” (alteration in original) (citation omitted)); Contract,
BLACK’S LAW DICTIONARY (10th ed. 2014) (“An agreement between
two or more parties . . . .”); Combination, BLACK’S LAW DICTIONARY
(8th ed. 2004) (“An alliance of individuals or corporations . . . .”);
Pohl, Inc. of Am. v. Webelhuth, 2008 UT 89, ¶ 29, 201 P.3d 944 (stating
that a conspiracy is “a combination of two or more persons” (citation
omitted)). While some type of agreement is necessary, “business
behavior is admissible circumstantial evidence from which the fact
finder may infer agreement” and no “formal agreement” is
necessary. Brixen & Christopher Architects, P.C. v. State, 2001 UT App
210, ¶ 35, 29 P.3d 650 (quoting Norfolk Monument Co. v. Weedlawn
Mem’l Gardens, Inc., 394 U.S. 700, 704 (1969)).




   17 The district court also addressed Utah Constitution article XII,
section 20. That article includes almost identical language, stating
that “[e]ach contract, combination in the form of trust or otherwise,
or conspiracy in restraint of trade or commerce is prohibited.” While
the district court addressed the constitutional provision, Harvey has
not argued it on appeal. For this reason, we look solely at the Utah
Antitrust Act.

                                    27
                       HARVEY v. UTE INDIAN TRIBE
                         Opinion of the Court

    ¶66 Harvey has failed to allege facts establishing any
agreement in the form of a contract, combination, or conspiracy
between the tribal officials and Newfield. The complaint alleges that
Newfield received the March 20th letter from the tribal officials, and
then refused to use Harvey’s businesses or any other “business who
leases [Harvey’s] equipment or utilizes [Harvey’s] Products.”
Harvey further alleges that “Newfield’s . . . cooperation with the
unlawful and ultra vires actions of tribal officials empowers said
officials.” The crux of these allegations is that Newfield received a
letter from the Ute Tribe threatening to sanction it if it used Harvey,
or if it used any other business that used Harvey, and that Newfield
then complied with the directive.
    ¶67 None of these allegations establish any kind of contract,
combination, or conspiracy to restrain trade. In his briefing, Harvey
attempts to remedy this defect in pleading by arguing that the
March 20th letter was simply “asking [Newfield] to boycott”
Harvey’s businesses and that Newfield “expressly agreed to that
request” by informing Harvey that they would no longer be using
his businesses. But argument in briefing does not resolve a
deficiency in pleading. Also,
       [a] restraint imposed unilaterally by government does
       not become concerted-action within the meaning of the
       statute simply because it has a coercive effect upon
       parties who must obey the law. The ordinary
       relationship between the government and those who
       must obey its regulatory commands whether they wish
       to or not is not enough to establish a conspiracy.
       Similarly, the mere fact that [private companies] must
       comply with the same provisions of the [government
       directive] is not enough to establish a conspiracy
       among [the private companies].
Fisher v. City of Berkeley, 475 U.S. 260, 267 (1986).
    ¶68 Even assuming that Newfield and every other business in
the region complied with the March 20th letter, it does not establish
an antitrust claim. This is not to say that an antitrust or a conspiracy
claim could never be established between a government entity and a
private corporation. If, perhaps, Harvey had pled in his complaint
that the March 20th letter was sent out at the behest of Newfield, or
that Newfield had bribed the tribal officials to send out the letter, a
claim for antitrust might have been adequately pled. But, as it
stands, a group of private companies complying with a government
directive does not create a contract, combination, or conspiracy in
restraint of trade.
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                        Opinion of the Court

    ¶69 Harvey attempts to distinguish Fisher by arguing that it
should not apply when one jurisdiction attempts to regulate
business activities in another jurisdiction. While that may be an
unauthorized exercise of power, this muddies the analysis of why
compliance with a governmental directive does not violate the Utah
Antitrust Act. The correct question is not whether the government
directive was legally authorized, but whether the government and a
private company colluded to restrain trade. When the government
issues a directive and a private company complies with it, regardless
of whether the directive is legally authorized, the logical
presumption is that there was no agreement between the
government and the private company in restraint of trade.
Something more must be pled to rebut this presumption. We
therefore affirm the district court’s dismissal of this cause of action
against Newfield for failure to state a claim.
2. Civil Conspiracy
    ¶70 In order to plead a claim for civil conspiracy, a complaint
must allege sufficient facts to establish “(1) a combination of two or
more persons, (2) an object to be accomplished, (3) a meeting of the
minds on the object or course of action, (4) one or more unlawful,
overt acts, and (5) damages as a proximate result thereof.” Pohl, Inc.
of America, 2008 UT 89, ¶ 29 (citation omitted). Once again, Harvey
has failed to plead sufficient facts to establish a meeting of the
minds. At most, he has pled that a unilateral directive was issued by
the Ute Tribe and that Newfield complied with it. To survive a
motion to dismiss, Harvey must plead some kind of meeting of the
minds between Newfield and the tribal officials to harm Harvey in
an unlawful manner. Also, for the same reasons as noted above, we
do not see how, absent something more, a conspiracy can be
established between multiple private companies that are merely
complying with a government order. We affirm the district court’s
dismissal of Harvey’s claim for civil conspiracy against Newfield.
3. Tortious Interference with Economic Relations
    ¶71 Tortious interference with economic relations is
established when the plaintiff proves: “(1) that the defendant
intentionally interfered with the plaintiff’s existing or potential
economic relations, (2) . . . by improper means, (3) causing injury to
the plaintiff.” 18 Eldridge v. Johndrow, 2015 UT 21, ¶ 70, 345 P.3d 553


   18In Eldridge we abandoned the “for an improper purpose”
prong of this second element. 2015 UT 21, ¶ 64.

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                      HARVEY v. UTE INDIAN TRIBE
                        Opinion of the Court

(alteration in original) (citation omitted). This claim is an intentional
tort, requiring Harvey to prove that Newfield had “a desire to bring
about” the interference with Harvey’s economic relationships. Id.
¶ 66. “To establish . . . improper means, a plaintiff must show ‘that
the defendant’s means of interference were contrary to statutory,
regulatory, or common law or violated an established standard of a
trade or profession.’” Anderson Dev. Co. v. Tobias, 2005 UT 36, ¶ 20,
116 P.3d 323 (citation omitted).
   ¶72 There is nothing improper in complying with a
government directive. Indeed, just the opposite is true. Again, this
does not foreclose the possibility that an adequate claim could be
pled. If Newfield had bribed the tribal officials to send out the letter
with the intent to shut down Harvey’s businesses, this would
perhaps be enough. But, as it stands, the complaint simply alleges
that Newfield complied with the March 20th letter. This is not
improper and we affirm the district court’s dismissal of Newfield
from this cause of action.
4. Extortion
    ¶73 Harvey brings a claim for extortion. Extortion is a crime in
Utah, but we have never recognized a corresponding civil claim. See
UTAH CODE § 76-6-406. “When a statute makes certain acts unlawful
and provides criminal penalties for such acts, but does not
specifically provide for a private right of action, we generally will
not create such a private right of action.” Youren v. Tintic Sch. Dist.,
2004 UT App 33, ¶ 4, 86 P.3d 771 (citing Milliner v. Elmver Fox & Co.,
529 P.2d 806, 808 (Utah 1974)), cert. denied, 94 P.3d 929 (Utah 2004).
Our refusal to do so is “based on the long-standing approach to
statutory interpretation that prevents courts from creating a private
right of action ‘[w]hen a statute makes certain acts unlawful and
provides criminal penalties for such acts, but does not specifically
provide for a private right of action.’” Puttuck v. Gendron, 2008 UT
App 362, ¶ 18, 199 P.3d 971 (alteration in original) (citation omitted).
We see no reason to depart from this general rule here. We affirm
the district court on alternative grounds and hold that there is
currently no civil cause of action for extortion, and thus, there is no
legal remedy. Because there is no remedy, Harvey has failed to show
that he is entitled to relief. The creation of such a cause of action is a
matter best left to the legislature. Milliner, 529 P.2d at 808 (refusing
to create a civil remedy for conduct that is criminal under a statute,
because “it is a matter best left to the legislature”).




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                         Opinion of the Court

5. Blacklisting
   ¶74 Finally, we address Harvey’s claim for blacklisting under
Utah Constitution article XII, section 19 and article XVI, section 4.
Article XII, section 19 states that “[e]ach person in Utah is free to
obtain and enjoy employment whenever possible, and a person . . .
may not maliciously interfere with any person from obtaining
employment or enjoying employment already obtained . . . .” Article
XVI, section 4 states that “[t]he exchange of black lists by . . .
corporations, associations or persons is prohibited.”
    ¶75 Newfield argues that there is no right to a private cause of
action under article XVI, section 4 and article XII, section 19. A state
constitutional provision creates a private cause of action when it is
self-executing. Spackman ex rel. Spackman v. Bd. of Educ. of Box Elder
Cty. Sch. Dist., 2000 UT 87, ¶ 7, 16 P.3d 533. A self-executing
provision is one that, “[i]n essence, . . . can be judicially enforced
without implementing legislation.” Id. This means that the provision
“articulates a rule sufficient to give effect to the underlying rights
and duties intended by the framers.” Id. (citation omitted). Thus,
“courts may give effect to a provision without implementing
legislation if the framers intended the provision to have immediate
effect.” Id. (citation omitted). We can determine that a provision was
intended to have immediate effect when the provision is “both
judicially definable and enforceable,” even though its express
language may be stated “in relatively general terms.” Id. ¶ 12. A
good indicator that the framers intended the provision to be self-
executing is when the provision “prohibits specific evils that may be
defined and remedied without implementing legislation.” Bott v.
DeLand, 922 P.2d 732, 737 (Utah 1996) abrogated on other grounds by
Spackman, 2000 UT 87. “Conversely, constitutional provisions are not
self-executing if they merely indicate a general principle or line of
policy without supplying the means for putting them into effect.”
Spackman, 2000 UT 87, ¶ 7 (citation omitted).
    ¶76 Once a provision is shown to be self-executing, a plaintiff
is entitled to equitable relief to remedy a violation of the
constitutional provision. Id. ¶ 18; Bott, 922 P.2d at 737 (“[S]elf-
executing provision[s] . . . traditionally allow[] courts to award
injunctions and invalidate conflicting statutes . . . .”). However, “a
self-executing constitutional provision does not necessarily give rise
to a damages suit.” Spackman, 2000 UT 87, ¶ 18. Thus, if a plaintiff
seeks damages, he or she must argue that 1) “he or she suffered a
‘flagrant’ violation of his or her constitutional rights,” 2) “existing
remedies do not redress his or her injuries,” and 3) “equitable relief,


                                    31
                     HARVEY v. UTE INDIAN TRIBE
                       Opinion of the Court

such as an injunction, was and is wholly inadequate to protect the
plaintiff’s rights or redress his or her injuries.” 19 Id. ¶¶ 23–25.
    ¶77 Article XVI, section 7 states that “[t]he Legislature . . . shall
provide for the enforcement of the provisions of this article,”
including section 4 of article XVI. This clearly indicates that the
framers did not intend this provision to be self-executing. Rather, the
rights expressed in article XVI must be protected through
“appropriate legislation.” Whether the legislature has actually
passed legislation to protect a person’s rights under article XVI,
section 4, and what the remedy should be if it has failed to do so, is
not before this court. We hold that article XVI, section 7 is not self-
executing and that Harvey is not entitled to bring a private claim
directly under that provision.
    ¶78 Article XII, section 19 originally stated that “[t]he
Legislature shall provide by law for the enforcement of this section.”
See UTAH CONST. art. XII, § 19 (1896). Newfield argues that the court
of appeals has already ruled that this provision is not self-executing
based on this language. See Richards Irrigation. Co. v. Karren, 880 P.2d
6, 10–11 (Utah Ct. App. 1994). Again, this language clearly indicated
that the framers did not intend the provision to be self-executing.



   19 Newfield argues that Harvey failed to preserve this argument
below, but this conflates the two standards. If a constitutional
provision is self-executing, a private claim may be brought under
the provision for equitable relief. While Harvey never specifically
said, “self-executing” in his arguments below or in his opening brief
on appeal, his substantive arguments address this issue and it is
therefore preserved.
       Harvey, however, undoubtedly failed to preserve an
argument that, under these three factors, he is entitled to damages.
But the three factors in Spackman only determine whether money
damages are available, not whether a cause of action exists. Harvey
sought injunctions and declaratory judgments in addition to his
claim for money damages. His request for equitable relief should
not be dismissed as long as the constitutional provisions are self-
executing, even if these elements for money damages are not met.
Thus, at worst, his failure to argue these elements on a motion to
dismiss would result in dismissal of his request for money damages
under these constitutional causes of action. We do not reach this
issue because we dismiss his constitutional claims against Newfield
on other grounds.

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                         Opinion of the Court

But this language was removed on January 1, 1993, abrogating the
court of appeals holding and re-opening this issue. Id. at 11 n.2; S.J.
Res. 7, 49th Leg., Gen. Sess. (Utah 1992).
    ¶79 We do not reach this issue, however, because even if this
provision is self-executing, Harvey has failed to state a claim against
Newfield. This provision states that a person “may not maliciously
interfere with any person from obtaining employment or enjoying
employment already obtained.” UTAH CONST. art. XII, § 19
(emphasis added). Malice implies some kind of “hostility or ill will,”
or intent to commit a wrongful act. Cox v. Hatch, 761 P.2d 556, 559
n.1 (Utah 1988); Malice, BLACK’S LAW DICTIONARY (8th ed. 2004)
(“The intent, without justification or excuse, to commit a wrongful
act.”). Harvey has not pled that Newfield maliciously intended to
harm Harvey, and no inference of malice can be made from the facts
pled. Harvey merely pled that Newfield received and complied with
a government directive from the Ute Tribe. This is not enough to
show hostility, ill will, or an intent to commit a wrongful act. We
affirm the district court’s dismissal of this claim against Newfield
under rule 12(b)(6).
    ¶80 We affirm the district court’s dismissal of D. Ray. C.
Enterprises, LaRose Construction, and Newfield for failure to state a
claim upon which relief can be granted because Harvey pled causes
of action that do not exist, and because he failed to plead adequate
facts against those defendants supporting the causes of action that
do exist. While we dismiss all of Harvey’s state law claims against
these three defendants, we do not address his state law claims
against the remaining defendants under Utah Rule of Civil
Procedure 12(b)(6).
                             CONCLUSION
    ¶81 The Ute Tribe has not clearly waived its sovereign
immunity and we affirm the district court’s dismissal of the tribe for
lack of subject matter jurisdiction. We also affirm the district court’s
dismissal of LaRose Construction Company, Inc., D. Ray C.
Enterprises, LLC, Newfield Production Company, Newfield Rocky
Mountains, Inc., Newfield RMI, LLC, and Newfield Drilling
Services, Inc. for failure to state a claim upon which relief can be
granted. We vacate the district court’s dismissal of the remaining
defendants for failure to join an indispensable party and we remand
for the district court to determine whether the case should be
dismissed or stayed under the tribal exhaustion doctrine. If the
district court decides to stay proceedings, Harvey’s state law claims
against Dino Cesspooch, Jacki LaRose, and Sheila Wopsock in their
individual capacities, and against L.C. Welding & Construction,
                                    33
                     HARVEY v. UTE INDIAN TRIBE
                       Opinion of the Court

Scamp Excavation, and Huffman Enterprises, Inc., survive. Harvey’s
two federal claims that the tribal officials exceeded the scope of the
Ute Tribe’s jurisdiction and seeking injunctions also survive.




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                             Cite as: 2017 UT 75
                        JUSTICE HIMONAS, concurring

   JUSTICE HIMONAS, concurring:
   ¶82 I concur in Justice Durham’s opinion without reservation. I
write separately to more fully explain why, in my view, the tribe is
not a necessary party under rule 19(a) of the Utah Rules of Civil
Procedure and to offer some practical guidance to the district courts
on how to manage a dual-capacity suit like this one. I also write
separately to lay out why I believe the tribal exhaustion doctrine
applies to state courts and why it is a rule of exhaustion and not
abstention. Last, I write separately to identify a jurisdictional issue
the district court and the parties should take up on remand.
                     I. RULE 19 IN THE CONTEXT OF
                         DUAL CAPACITY SUITS
    ¶83 The plaintiffs have sued certain tribal officials—Dino
Cesspooch, Jacki LaRose, and Sheila Wopsock—in their individual
and official capacities. The individual-capacity claims seek money
damages and the official-capacity claims seek prospective injunctive
relief requiring these tribal officials, acting in their official capacity, to
forebear from interfering in certain respects with the plaintiffs’
business activities.
    ¶84 I agree with the majority that, to the extent the plaintiffs’
official-capacity suit seeks a prospective injunction enjoining the
tribal officials from violating federal (as opposed to tribal) law, the
plaintiffs have stated a valid claim under Ex parte Young, 209 U.S. 123
(1908), that is not barred by sovereign immunity. I also agree with
the majority that the Ute Tribe’s absence from this suit will not
“impair or impede [its] ability to protect [its] interest” because the
tribal officials, acting in their official capacity, may be presumed to
adequately represent the interests of the tribe. Supra ¶¶ 34–36. And
the majority is correct that “[t]here is no argument that the tribal
officials [acting in their official capacities] will do anything
antithetical to the interests of the tribe or that they will fail to make
any ‘reasonable argument that the tribe would make if it were a
party.’” Supra ¶ 38 (quoting Salt River Project Agric. Improvement &
Power Dist. v. Lee, 672 F.3d 1176, 1180 (9th Cir. 2012)). Consequently,
the tribe need not be joined under rule 19(a)(2)(i) of the Utah Rules of
Civil Procedure. While the tribe surely has “an interest related to the
subject of the action”—an interest in ensuring that it may regulate
business activities on the reservation to the fullest extent allowed by
federal law—it is not “so situated that the disposition of the action in
[its] absence . . . may as a practical matter impair or impede [its]




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                      HARVEY v. UTE INDIAN TRIBE
                      JUSTICE HIMONAS, concurring

ability to protect that interest” because the tribal officials will fully
represent its interests. UTAH R. CIV. P. 19(a)(2)(i). 1
    ¶85 I write separately to more fully show our math under rule
19(a)(2)(i). While foundational principles establish that sovereigns
are not necessary parties to officer suits under Ex parte Young, neither
the majority opinion nor the authority it cites fully explains why we
can state, with absolute confidence, that the tribal officials will fully
represent the interests of the tribe. It is certainly not because the
tribal officials will necessarily have the tribe’s best interests at heart
in the individual-capacity damages suits against them. To the
contrary, “a person sued in his official capacity has no stake, as an
individual, in the outcome of the [official-capacity] litigation,” and
therefore does not necessarily have an incentive to vigorously defend
in that litigation. Johnson v. Bd. of Cty. Comm’rs of Fremont, 85 F.3d 489,
493 (10th Cir. 1996) (citation omitted). In addition, “[t]he distinctions
between suits against an official in his individual and official
capacities [can] give rise to differing and potentially conflicting
defenses.” Id.
    ¶86 The reason we are right to be confident that the tribal
officials will fully represent the interests of the tribe is that an Ex-
parte-Young-style suit for prospective injunctive relief against tribal
officials is not really a suit against the tribal officials at all. As the
majority explains, in official-capacity suits “the relief sought is only
nominally against the official and in fact is against the official’s office
and thus the sovereign itself.” Lewis v. Clarke, 137 S. Ct. 1285, 1291
(2017) (citation omitted). Indeed, “official-capacity suits ‘generally
represent only another way of pleading an action against an entity of
which an officer is an agent.’” Hafer v. Melo, 502 U.S. 21, 25 (1991)
(citation omitted). They “rest[] on the ‘obvious fiction’ that [a suit for
prospective injunctive relief against sovereign officials] is not really
against the [sovereign], but rather against an individual who has
been ‘stripped of his official or representative character’ because of
his unlawful conduct.” Va. Office for Prot. & Advocacy v. Stewart, 563


   1 A person is also necessary under rule 19 “if in the person’s
‘absence complete relief cannot be accorded among those already
parties’ . . . [or] the person . . . claims an interest in the action and
her absence would ‘leave any of the persons already parties subject
to a substantial risk of incurring double, multiple, or otherwise
inconsistent obligations.’” Supra ¶ 35 (quoting UTAH R. CIV. P.
19(a)(1) & (2)(ii)). I have no concerns with the majority’s analysis of
these two prongs of rule 19(a).

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                     JUSTICE HIMONAS, concurring

U.S. 247, 267 (2011) (citations omitted). But because it is a “fiction”
that Ex-Parte-Young-style suits run against the government official, as
opposed to the government entity itself, they should in reality “be
treated as suits against the [government entity].” Hafer, 502 U.S. at 25
(citation omitted).
     ¶87 Here, this means that the tribal officials, as individuals,
should have no personal control over the course of the official-
capacity litigation. Instead, even though the tribal officials are the
nominal defendants in the official-capacity suit, “the government
entity [must] receive[] notice and an opportunity to respond.”
Kentucky v. Graham, 473 U.S. 159, 166 (1985) (emphasis added)
(citation omitted). “[A]n official-capacity suit is, in all respects other
than name, to be treated as a suit against the [government] entity,”
not the individual tribal official. Id. (citation omitted) Thus, except
where the government entity that is the real party in interest might,
itself, take a position “antithetical to the interests of the tribe,” the
obvious potential conflict between the officials in the individual-
capacity suit and the government entity those same officials
represent in their official capacity should not pose a problem. See Salt
River, 672 F.3d at 1181. And, of course, if the tribal officials leave
office during the pendency of this action, the plaintiffs’ Ex-parte-
Young-style suit “may be continued and maintained . . . against
[their] successor[s], if within 6 months after the successor takes office,
it is satisfactorily shown to the court that there is a substantial need
for so continuing and maintaining it.” UTAH R. CIV. P. 25(d).
    ¶88 This explanation for why the tribe need not be joined
under rule 19(a)(2)(i) has implications for how this lawsuit should
proceed in the event that it remains or returns, in whole or in part, to
the district court. First, even though all of the claims against the tribe
itself have been dismissed because of the tribe’s sovereign immunity,
the underlying tribal entity against which the plaintiffs are seeking
their injunction—be that the tribe itself or the Ute Tribal Employment
Rights Office—must continue to receive notice and an opportunity to
be heard. Graham, 473 U.S. at 166.
    ¶89 Second, in the event that the tribal officials end up
represented by the same counsel in both their official and individual
capacities, the district court and all counsel should be on the lookout
for potential conflicts of interest in this dual representation. See
Johnson, 85 F.3d at 493 (“Given the potential conflict between the
defenses available to a government official sued in his individual and
official capacities, we have admonished that separate representation
for the official in his two capacities is a ‘wise precaution.’” (citation
omitted)); see also Galvin v. Lloyd, 663 F. Supp. 1572, 1581 (D. Conn.

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                      HARVEY v. UTE INDIAN TRIBE
                      JUSTICE HIMONAS, concurring

1987) (“[J]oint representation in [dual-capacity] suits sometimes
creates a potential conflict of interest because different theories of
liability and defenses may be applicable under each capacity.”).
    ¶90 In this regard, I note with approval that, at least for a time,
the tribal officials were represented by the tribe’s counsel in the
official-capacity suit and by personal counsel in the individual-
capacity suit. This is a good practice that is too often neglected in
dual capacity suits such as the one before us. Cf. Dina Mishra, Note,
When the Interests of Municipalities and Their Officials Diverge:
Municipal Dual Representation and Conflicts of Interest in § 1983
Litigation, 119 YALE L.J. 86, 90 (2009) (“[D]espite their importance,
conflicts of interest in . . . dual representation [lawsuits] are
‘frequently overlooked by litigants’ . . . and the issue ‘has received
scant attention in appellate opinions.’” (citation omitted)).
            II. THE MAJORITY’S EXHAUSTION ANALYSIS
    ¶91 I now turn to the majority’s articulation and application of
the tribal exhaustion rule. I agree with the majority that our court
must abstain from hearing this case until the plaintiffs have
exhausted available tribal remedies. In my view, the tribal
exhaustion rule applies whenever a tribal court has a colorable claim
of jurisdiction. See, e.g., Stock W. Corp. v. Taylor, 964 F.2d 912, 919 (9th
Cir. 1992) (en banc) (tribal exhaustion rule requires court to stay hand
whenever “the record presents a colorable question” whether tribal
court has jurisdiction); Norton v. Ute Indian Tribe of the Uintah & Ouray
Reservation, 862 F.3d 1236, 1243 (10th Cir. 2017) (tribal exhaustion rule
applies “so long as tribal courts can ‘make a colorable claim that they
have jurisdiction’” (citation omitted)). Whether a tribal court has a
colorable claim of jurisdiction over a nonmember’s civil action turns
on whether there is a colorable argument that the tribe could exercise
regulatory authority over the subject matter of the dispute. Strate v.
A-1 Contractors, 520 U.S. 438, 447, 453 (1997). And whether a tribe
could exercise regulatory authority over the subject matter of the
dispute turns on application of the Montana v. United States
exceptions to the general rule that “Indian tribes lack civil authority
over the conduct of nonmembers on non-Indian land within a
reservation.” Id. at 446. Those exceptions are: (1) “[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,” Montana v. United States, 450 U.S. 544, 565 (1981)
(citations omitted), and (2) “[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 conduct threatens or has some

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                     JUSTICE HIMONAS, concurring

direct effect on the political integrity, the economic security, or the
health or welfare of the tribe,” id. at 566 (citations omitted). In my
view, the majority is correct that, at bottom, the plaintiffs’ lawsuit
centrally involves the exercise of the tribe’s regulatory authority over
the activities of nonmembers who engage in consensual commercial
relationships with the tribe or its members—and it therefore falls
within the first Montana exception to the general rule that tribes lack
regulatory or adjudicatory jurisdiction over nonmembers in
connection with their off-reservation conduct. See supra ¶¶ 42–52 &
n.11.
   ¶92 I write separately to (1) explain why I believe the tribal
exhaustion doctrine applies in state court, (2) explain why I believe
the tribal exhaustion doctrine is an exhaustion doctrine, not an
abstention doctrine, and (3) flag an additional jurisdictional issue that
the district court should explore on remand.
                     A. The Tribal Exhaustion Doctrine
                          Applies in State Courts
    ¶93 I agree with the majority that the tribal exhaustion rule
applies in state court as well as federal court. The United States
Supreme Court has explained that the tribal exhaustion rule applies
to “any nontribal court.” Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 16
(1987) (emphasis added); see also Nevada v. Hicks, 533 U.S. 353, 398
(2001) (O’Connor, J., concurring) (tribal exhaustion rule determines
“the relationship between tribal courts and state and federal courts.”
(emphasis added)). This is because the tribal exhaustion rule is an
“interstitial and court-created . . . component of the law embodying
the federal policy supporting tribal self-government and self-
determination” that is therefore binding on the states under the
Supremacy Clause. Drumm v. Brown, 716 A.2d 50, 62–63 (Conn. 1998).
    ¶94 I recognize that some courts have concluded that the tribal
exhaustion rule is not binding on the states. In Astorga v. Wing, for
example, the Arizona Court of Appeals reasoned that the tribal
exhaustion rule might not apply to state courts because “[u]nlike . . .
state courts, federal courts retain the power to review an Indian
court’s exercise of jurisdiction over non-members.” 118 P.3d 1103,
1106 (Ariz. Ct. App. 2005) (citation omitted). Because imposing the
tribal exhaustion rule on state courts would oust them from any
opportunity to ensure that tribal courts properly apply state law,
Astorga reasoned, this result cannot be what Congress intended. Id. at
1107–09.
   ¶95 In my view, these courts’ analysis cannot be squared with
the express language in LaPlante. Supra ¶ 93. It is also inconsistent

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                      HARVEY v. UTE INDIAN TRIBE
                      JUSTICE HIMONAS, concurring

with fundamental principles of Indian law as well as the policy that,
according to the United States Supreme Court, undergirds the tribal
exhaustion doctrine.
    ¶96 First, the notion that the tribal exhaustion rule does not
apply to state courts is inconsistent with fundamental principles of
Indian law. “The policy of leaving Indians free from state jurisdiction
and control is deeply rooted in the Nation’s history.” Rice v. Olson,
324 U.S. 786, 789 (1945) (citing Worcester v. Georgia, 31 U.S. 515 (1832),
abrogation recognized by Nevada v. Hicks, 533 U.S. 353 (2001)). Congress
has expressed its preference for limiting state control over Indian
affairs in statutes including the Indian Child Welfare Act (which
imposes a variety of limits on and federal oversight of state exercises
of jurisdiction over Indian children in adoption proceedings), 25
U.S.C. §§ 1901 through 1963, and the Major Crimes Act (which gives
exclusive jurisdiction to federal courts to adjudicate major crimes
perpetrated in Indian country by one Indian against another), 18
U.S.C. § 1153.
    ¶97 In light of these background principles, it would be
anomalous to conclude that the tribal exhaustion rule only applies in
federal court. The effect of this ruling would be to place state courts
in a superior position to federal courts in hearing cases that implicate
tribal jurisdiction. Conceivably, given the general rule that state and
federal courts have concurrent subject matter jurisdiction, Robb v.
Connolly, 111 U.S. 624, 636 (1884), this might give rise to a scheme
where plaintiffs overwhelmingly chose to litigate in state court
instead of tribal court—a state of affairs that would wholly subvert
the federal policy of encouraging the development of tribal court
systems, see El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 484 (1999)
(rooting the tribal exhaustion doctrine in Congress’s “policy of
supporting tribal self-government” (citation omitted)); see also
LaPlante, 480 U.S. at 15 (exhaustion rule is rooted in the federal policy
of “[p]romot[ing] . . . tribal self-government and self-
determination”). 2



   2  To be sure, defendants in such suits could conceivably remove
to federal court and then seek application of the tribal exhaustion
rule. See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14–16 (1987) (tribal
exhaustion rule applies to diversity proceedings). But this
underscores the logic of applying the tribal exhaustion rule in state
courts. It makes little sense to impose the extra procedural hurdle of
removal in order to reach the same result—stay of nontribal
                                                          (continued . . .)
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                     JUSTICE HIMONAS, concurring

    ¶98 This brings me to my second point, which is that the policy
underlying the tribal exhaustion rule supports the proposition that it
applies in state court. As I have just explained, the purpose of the
tribal exhaustion rule is to advance a policy of supporting “tribal self-
government and self-determination.” LaPlante, 480 U.S. at 15. The
United States Supreme Court has clarified that the predominant, if
not sole, policy underlying the tribal exhaustion requirement is the
proposition that “[e]xhaustion [is] appropriate . . . because ‘Congress
is committed to a policy of supporting tribal self-government.’”
Neztsosie, 526 U.S. at 484 (citation omitted). When a state court
assumes control over litigation that could also proceed in tribal court
it has the exact same effect on tribal self-determination as when a
federal court assumes such control—in both instances, the federal
policy of “encourag[ing] the[] development. . . . [of] [t]ribal courts” is
subverted. LaPlante, 480 U.S. at 14–15. Because the policy underlying
the tribal exhaustion rule admits of no distinction between federal
and state courts, I conclude that the tribal exhaustion doctrine
applies to state courts to the same extent it applies to federal courts.
    ¶99 The dissent dismisses these policies as “generalities” that
should not ultimately inform our analysis of the tribal exhaustion
doctrine. The dissent thinks that because the Supreme Court has not
directly spoken to whether the tribal exhaustion doctrine applies to
state courts, it is up to us to enact our own preferences about “how to
balance the needed deference to sovereignty and the jurisdiction of
the tribal courts.” Infra ¶ 128.
    ¶100 The dissent then draws on other generalities, such as the
generality that “[e]xhaustion . . . is a principle that regulates the
timing of proceedings in tribunals that operate in a hierarchical
relationship,” to analogize the tribal exhaustion doctrine to, for
example, the requirement to exhaust administrative remedies. Infra ¶


(continued . . .)
proceedings under the tribal exhaustion doctrine. Moreover, there
will presumably remain some nonremovable cases filed in state
court to which the tribal exhaustion rule would uncontroversially
apply in federal court. But there is no reason to think such cases are
less worthy of tribal exhaustion than removable cases. So declining
to apply the tribal exhaustion rule to this random subset of cases
would ultimately work an arbitrary, and therefore unacceptable,
result. And most importantly, this purpose would be frustrated by a
scheme that relies on litigants to remove to federal court to trigger
the tribal exhaustion rule.

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                     HARVEY v. UTE INDIAN TRIBE
                     JUSTICE HIMONAS, concurring

121. It then urges that we independently balance jurisdictional and
sovereignty considerations to arrive at our own approach to the
state-tribal relationship. Infra ¶¶ 128–29.
    ¶101 The dissent’s analysis misunderstands our role vis-à-vis the
United States Supreme Court. When we interpret federal law, we
should not look to whether there is any “controlling statute or
binding precedent” that stands in the way and then, if there is not,
proceed to balance the interests involved in the case as we think best.
Cf. Adam Liptak, An Exit Interview With a Judicial Firebrand, N.Y.
TIMES, Sept. 12, 2017, at A18 (noting former Judge Richard Posner’s
view that the role of a court is to decide for itself what the sensible
resolution of a dispute is and then reach that resolution unless “a
recent Supreme Court precedent or some other legal obstacle [stands]
in the way of ruling in favor of that sensible resolution”). Instead, we
should strive to resolve the federal question before us in a way that is
faithful to, and coheres with, operative federal principles, policies,
and pronouncements. Cf. Willis v. Aiken, 8 F.3d 556, 565 (7th Cir.
1993) (lower courts interpreting federal law are “bound not only by
the letter but by the spirit of the doctrines of stare decisis and
precedent”); Application of Johnston, 502 F.2d 765, 774 (C.C.P.A. 1974)
(Rich, C. J., dissenting) (“Under our judicial system, it is the duty of a
judge of a lower court to try to follow in spirit decisions of the
Supreme Court—that is to say, their ‘thrust’.”), judgment reversed by
Dann v. Johnston, 425 U.S. 219 (1976).
    ¶102 Thus, there is no cause to dismiss as “generalities” the
policies on which I draw. Nor should we ignore the Supreme Court’s
pronouncement—dicta though it may be—that the tribal exhaustion
rule applies to “any nontribal court.” LaPlante, 480 U.S. at 16. Instead,
drawing on these policies and pronouncements, we should think
critically and sympathetically about what result they support in this
case. In my view, the federal policies on which I draw—which
explicitly and implicitly aim at encouraging tribal self-government
and self-determination and protecting tribal sovereignty—support
extension of the tribal exhaustion rule to state courts.
    ¶103 I also disagree with the dissent’s observation that because
“exhaustion” (at least considered at a high level of generality)
implies a “hierarchical relationship,” the tribal exhaustion rule
cannot be understood to apply in state courts. Respectfully, this
analysis is insensitive to the Indian tribes’ unique status and
history—a status and history that should inform how we construe
legal terms imported from other areas of law into the Indian law
context.


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                     JUSTICE HIMONAS, concurring

   ¶104 Unlike administrative agencies, or even states, tribes are
not subordinates in our constitutional hierarchy. They are “domestic
dependent nations.” Okla. Tax Comm’n v. Citizen Band Potawatomi
Tribe of Okla., 498 U.S. 505, 509 (1991) (citation omitted). This means
that, while they are subject to Congress’s plenary control, “they
remain ‘separate sovereigns pre-existing the Constitution.’” Michigan
v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2030 (2014) (citation
omitted). And while Congress’s powers over Indian affairs are
plenary, it is well-established that “[u]nder a humane and self
imposed policy which has found expression in many acts of
Congress and numerous decisions of [The U.S. Supreme] Court,
[Congress] has charged itself with moral obligations of the highest
responsibility and trust” toward these sovereigns. Seminole Nation v.
United States, 316 U.S. 286, 296–97 (1942) (footnote omitted).
    ¶105 Thus, just as we are, in a sense, fiduciaries of Congress and
the United States Supreme Court when interpreting federal law,
supra ¶ 101, so does well-established federal law make us, in a sense,
fiduciaries of the tribes. Federal policy is to respect and protect the
tribes’ pre-constitutional sovereignty. And this understanding of
tribal sovereignty—and Congress’s relationship to the tribes—
informs my understanding of the tribal exhaustion doctrine. In light
of the tribes’ inherent sovereignty, I resist any construction of the
tribal exhaustion doctrine on which it implies that tribes, like
administrative agencies, occupy a subordinate role in a hierarchy.
Instead, I believe it is proper to emphasize the other—dominant—
theme in the Supreme Court’s exhaustion jurisprudence: the policy of
encouraging the development of tribal judicial institutions, the better
to facilitate the discharge of the Federal Government’s “humane and
self imposed policy” in favor of facilitating tribal self-government
and self-determination. Seminole Nation, 316 U.S. at 296.
    B. The Tribal Exhaustion Rule Is a Rule of Exhaustion, Not Abstention
    ¶106 For many of the reasons I think the tribal exhaustion rule
applies in state court, I also agree with the majority that the rule is a
rule of exhaustion, not abstention. The practical difference between a
tribal exhaustion rule and a tribal abstention rule is that, if the rule
were one of abstention, courts would likely be called upon to balance
multiple factors, including judicial economy concerns and the
avoidance of piecemeal litigation. See, e.g., Colo. River Water
Conservation Dist. v. United States, 424 U.S. 800, 818 (1976) [hereafter
Colorado River] (“In assessing the appropriateness of dismissal in the
event of an exercise of concurrent jurisdiction [by a state court], a
federal court may . . . consider such factors as the inconvenience of
the federal forum, . . . the desirability of avoiding piecemeal

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                      HARVEY v. UTE INDIAN TRIBE
                      JUSTICE HIMONAS, concurring

litigation, . . . and the order in which jurisdiction was obtained by the
concurrent forums.” (citations omitted)). If, on the other hand, the
rule requires exhaustion, then state courts need not take broad
concerns of judicial economy into account in deciding whether to
stay their hand.
   ¶107 I think the tribal exhaustion rule does, indeed, require
exhaustion. The Supreme Court has consistently described the
doctrine as a rule of exhaustion, not abstention, and it has never
indicated that courts should apply a multifactorial, abstention-style
balancing test to determine when exhaustion is appropriate. See
Neztsosie, 526 U.S. at 483 (describing “doctrine of tribal-court
exhaustion”); Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471
U.S. 845, 856–57 (“[e]xhaustion of tribal court remedies” is rooted in
the “policy of supporting tribal self-government and self-
determination”); see also LaPlante, 480 U.S. at 16 (discussing “the
exhaustion rule announced in National Farmers Union”). Moreover, it
has stated the rule in categorical terms; “comity requires that tribal
remedies be exhausted before district court considers issue of tribal
court jurisdiction.” Granberry v. Greer, 481 U.S. 129, 131 n.4 (1987)
(emphasis added) (citing Nat’l Farmers Union, 471 U.S. 845).
   ¶108 Additionally, as I have already explained, the exhaustion
requirement is rooted in the congressional policy in favor of
promoting the development of tribal courts and tribal self-
government and self-determination. Supra ¶¶ 96–101. 3 It is therefore


   3  In the dissent’s view, requiring litigants, including Indian
litigants, to file in tribal court does not “respect their right of self-
governance”; it “overrid[es] it.” Infra ¶ 142. This is ultimately just a
quip—it trades on an ambiguity in the notion of “self-governance.”
The “self-governance” that the tribal exhaustion doctrine seeks to
promote is the self-governance that comes from encouraging the
development of tribal judicial institutions; it is not the policy of
allowing litigants to choose their own forum. See, e.g., Smith v.
Moffett, 947 F.2d 442, 444 (10th Cir. 1991) (“The fact that Smith
apparently has not yet presented his case to a tribal court does not
diminish the comity considerations present in this case.”); Wellman v.
Chevron U.S.A., Inc., 815 F.2d 577, 579 (9th Cir. 1987) (declining to
allow Indian plaintiff to file suit in federal district court, instead of
tribal court, because both Indian and non-Indian plaintiffs are
“limited to tribal court as the forum of first recourse”). In any event,
by seeking to dismiss this action on the basis that the plaintiffs have
not exhausted their tribal remedies, the Indian defendants here have
                                                          (continued . . .)
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                     JUSTICE HIMONAS, concurring

unlike the Colorado River abstention doctrine that otherwise applies
when federal courts are considering whether to stay their hand in a
matter over which different United States court systems have
concurrent jurisdiction.
       The tribal exhaustion doctrine is in no way based on
       Colorado River. . . . [T]he Colorado River doctrine
       “proceeds from the premise that ‘the federal courts
       have a “virtually unflagging obligation . . . to exercise
       the jurisdiction given to them”’” and . . . therefore, the
       pendency of litigation in state court is not a bar to
       proceedings in federal court involving the same subject
       matter in the absence of “exceptional circumstances.”
       The policy which animates the tribal exhaustion
       doctrine, however, “subordinates the federal court’s
       obligation to exercise its jurisdiction to the greater
       policy of promoting tribal self-government.” Colorado
       River abstention is thus the exception to the rule,
       whereas tribal exhaustion is the rule rather than the
       exception.
Bank One, N.A. v. Shumake, 281 F.3d 507, 514–15 (5th Cir. 2002) (third
alteration in original) (citation omitted). Because the Supreme Court
calls the tribal exhaustion rule an “exhaustion rule,” and because the
Court has not incorporated the Colorado River factors into that rule, I
conclude that it is, indeed, a rule of exhaustion that requires state and
federal courts to give tribal courts the first crack at cases colorably
falling within their jurisdiction.
               C. Ute Tribal Law and the Jurisdiction of Courts
                           of the Ute Indian Tribe
   ¶109 Finally, I flag an issue for the district court to explore on
remand. The majority is correct to remand this case to the district
court. Supra ¶ 81. And the majority is also correct that the district
court, on remand, has discretion to either stay the action before it or
dismiss the plaintiffs’ complaint without prejudice, to give the
plaintiffs an opportunity to first file their suit in tribal court. Supra
¶ 81.




(continued . . .)
expressed their preference for having this dispute adjudicated in
available tribal forums. Memorandum in Support of Motion to Dismiss
by Tribe and UTERO Officials at 13–14.

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                     HARVEY v. UTE INDIAN TRIBE
                     JUSTICE HIMONAS, concurring

    ¶110 In the course of deciding whether a stay or dismissal is
more appropriate, the district court may wish to explore whether the
plaintiffs have any nonfrivolous basis for filing a subset of their
claims—their official-capacity claims—in tribal court. At first blush
(and perhaps even in the final analysis), the Ute Law and Order Code
appears to bar the tribe’s courts from exercising jurisdiction over
“claims against . . . any Tribal officers or employees in their official
capacities” in circumstances such as the ones at issue in this lawsuit.
UTE LAW & ORDER CODE § 1-2-3(5). 4 While there may be an argument
that this provision—which falls under the “personal jurisdiction”
section of the Law and Order Code—does not apply as its plain
language suggests, its plain language raises the possibility that no
reasonable plaintiff could in good faith file such a claim in Ute Tribal
Court.
    ¶111 To be sure, complaints must first be filed in tribal court
whenever there is a colorable argument that the tribal court may
have jurisdiction. Norton, 862 F.3d at 1243 (tribal exhaustion rule
applies “so long as tribal courts can ‘make a colorable claim that they
have jurisdiction.’” (citation omitted)). And our courts should be
particularly hesitant to find no colorable claim of tribal jurisdiction
based on an interpretation of a tribal code (as opposed to federal
jurisdictional law). See Basil Cook Enters., Inc. v. St. Regis Mohawk
Tribe, 117 F.3d 61, 66 (2d Cir. 1997) (declining “to hold that the St.
Regis Mohawk Tribal Court is a nullity under the tribal constitution”
because “courts, as a general matter, lack competence to decide
matters of tribal law and for us to do so offends notions of comity
underscored in National Farmers”). But nor should anything in our
opinion today be taken to require a plaintiff to file a frivolous
complaint. Cf. UTAH R. PROF’L CONDUCT 3.1 (lawyers have an ethical
obligation not to bring frivolous claims); see also Nat’l Farmers Union,
471 U.S. at 856 n.21 (exhaustion not required if assertion of tribal



   4  I accessed the Ute Law and Order Code through the Native
American Rights Fund’s National Indian Law Library. NARF’s
website indicates that the code was last amended in 2013, but it also
includes, as a disclaimer, that while “every effort is made to present
current and accurate information, if you need an official version of
the tribe’s laws, please contact the tribe.” NATIVE AMERICAN RIGHTS
FUND,           http://www.narf.org/nill/codes/ute_uintah_ouray/
[https://perma.cc/8YXR-4HLZ]. The district court may wish to
verify that section 1-2-3(5) is contained in the current, operative
version of the Law and Order Code.

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                     JUSTICE HIMONAS, concurring

jurisdiction is in bad faith or “patently violative of express
jurisdictional prohibitions”).
    ¶112 I acknowledge that some courts have held that under
National Farmers Union’s “patently violative of express jurisdictional
prohibitions” exception, “the only relevant ‘jurisdictional
prohibitions’ . . . are those arising under federal law” on the basis
“that construction of tribal law is ‘solely a matter within the
jurisdiction of the tribal courts.’” Basil Cook Enters., 117 F.3d at 67
(quoting Talton v. Mayes, 163 U.S. 376, 385 (1896)). Equally, I
recognize that courts have held that “a federal court must look to the
conduct of the [tribal] court itself, rather than the parties, in assessing
bad faith” under National Farmers’ “bad faith” exception to the tribal
exhaustion rule. Acres v. Blue Lake Rancheria, No. 16-cv-05391, 2017
WL 733114, at *2 (N.D. Cal. Feb. 24, 2017) (citing Grand Canyon
Skywalk Dev., LLC v. ‘sa’ Nyu Wa Inc., 715 F.3d 1196, 1201 (9th Cir.
2013)). These opinions underscore my view that the district court
must take great pains to ensure that there is no nonfrivolous basis for
asserting a particular claim in tribal court before it may retain control
of that claim. But I remain convinced that the tribal exhaustion
doctrine cannot require a plaintiff to file a truly frivolous claim in
tribal court—including a claim that the tribe’s own law expressly and
unambiguously precludes.
    ¶113 On remand, therefore, I believe it would be prudent for the
district court to request briefing from the parties—including the
tribal officials—on whether there is any reason to think that the
tribe’s courts could assert jurisdiction over the plaintiffs’ official-
capacity claims. If a nonfrivolous argument could be made that the
tribe’s courts have jurisdiction over official-capacity claims, then
those claims must first be brought in tribal court. See Stock W. Corp.,
964 F.2d at 920 (holding that whether a provision of the Colville Law
and Order Code applies to bar a particular claim “is a matter that
requires an interpretation of legislative intent that should be
conducted in the first instance by the Colville tribal courts”). If not,
then the district court should consider retaining jurisdiction over the
official-capacity claims, and perhaps stay them pending resolution of
those portions of the plaintiffs’ lawsuit that can proceed in tribal
court.




                                      47
                     HARVEY v. UTE INDIAN TRIBE
         ASSOCIATE CHIEF JUSTICE LEE, concurring and dissenting

   ASSOCIATE CHIEF JUSTICE LEE, concurring in part and dissenting in
   part:
    ¶114 The majority does an admirable job of bringing order and
clarity to a complex case. I agree with and concur in most of the
majority opinion and in Justice Himonas’s concurrence. Our only
point of disagreement stems from their analysis relating to tribal
exhaustion and their conclusions affected by that analysis. Unlike the
majority and concurrence, I find no basis in federal law for a rule
forcing the plaintiffs to “exhaust” their claims by filing suit in tribal
court. No party to this case has ever sought to invoke the jurisdiction
of the tribal courts. The plaintiffs chose this forum and the
defendants apparently agree—they have not initiated a declaratory
proceeding in tribal court. And I see no basis for the court’s decision
to override the parties’ choice of this Utah forum.
    ¶115 The U.S. Supreme Court has imposed an exhaustion
requirement in a line of cases in which (a) one of the parties has
invoked the jurisdiction of the tribal courts and (b) another party has
filed suit in federal court (which retains appellate jurisdiction over the
tribal court). See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987); Nat’l
Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985).
But there is no binding authority extending the exhaustion
requirement to a case like this one, in which neither of these elements
is met. And I would not adopt such a requirement here.
   ¶116 Our system yields to parties the general prerogative of
choosing an appropriate forum. 1 When the parties file suit in a court
that has both subject-matter jurisdiction over the dispute and
personal jurisdiction over the parties, our courts have a general duty
to exercise that jurisdiction. 2 This is no arbitrary rule. It is a core
premise of our judicial system—a premise aimed at protecting the



   1 See Energy Claims Ltd. v. Catalyst Inv. Grp. Ltd., 2014 UT 13, ¶¶ 30,
33, 325 P.3d 70 (recognizing that “[a]s a general matter, a plaintiff’s
choice of forum is entitled to deference” so long as the plaintiff’s
choice of forum “was motivated by legitimate reasons”); Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981) (“[T]here is ordinarily a
strong presumption in favor of the plaintiff’s choice of forum . . . .”).
   2  See Piper Aircraft Co., 454 U.S. at 255 (agreeing “that a plaintiff’s
choice of forum is entitled to greater deference when the plaintiff has
chosen the home forum”) (citing Koster v. (Am.) Lumbermens Mut. Cas.
Co., 330 U.S. 518, 831–32 (1947)).

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       ASSOCIATE CHIEF JUSTICE LEE, concurring and dissenting

federal constitutional right to due process and the state constitutional
right to open access to court. U.S. CONST. amend. V; UTAH CONST. art.
I, § 11.
    ¶117 These general rules are subject to exceptions. One exception
is set forth in the above-cited cases. These cases establish a
requirement of exhaustion as a matter of federal Indian law—a rule
that “directs a federal court to stay its hand” in the face of a pending
tribal court action “in order to give the tribal court a ‘full opportunity
to determine its own jurisdiction.’” LaPlante, 480 U.S. at 16 (quoting
Nat’l Farmers Union, 471 U.S. at 857). This requirement, however, has
never been extended to a case like this one. And I see no reason to do
so.
    ¶118 For reasons set forth below I would not hold that the
exhaustion rule announced by the U.S. Supreme Court extends to
cases in which the parties are litigating their differences in state court
and no party has yet invoked the jurisdiction of a tribal court. First, I
see no basis for the conclusion that the principles set forth in LaPlante
apply with equal force in a case involving the interplay between
tribal courts and state courts. Second, and in any event, I see no basis
for extending the LaPlante doctrine of exhaustion to a case in which
there is no pending proceeding in the tribal forum. In the absence of
a binding federal rule I would approach the question presented as a
matter of comity addressed to our common law authority.3 And
under that authority I would conclude that our courts should stay
our exercise of jurisdiction only after one of the parties has invoked
the jurisdiction of the tribal courts.



   3 My difference with my colleagues has nothing to do with one or
the other of us “misunderstand[ing]” our relationship with the
United States Supreme Court. See supra ¶ 101. I think we all
understand this relationship quite well. We just read the relevant
precedent differently.
     Like my colleagues, I embrace the duty to be “faithful” to the
“operative federal principles” set forth in governing Supreme Court
precedent. See supra ¶ 101. Yet I do not think the principle of
exhaustion set forth in LaPlante and National Farmers Union applies
with equal force in a case involving the interplay between tribal
courts and state courts. And because I find the comity considerations
implicated in a case like this one to be quite distinct from those
addressed by the court in these cases, I think it falls to us to decide
the question presented.

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       ASSOCIATE CHIEF JUSTICE LEE, concurring and dissenting

                                    I
     ¶119 I find no basis in federal law for a rule of exhaustion that is
binding on state courts. A few lower courts have held that the logic
and some dicta in LaPlante and National Farmers Union suggest that
the exhaustion principle ought to extend to state court proceedings. 4
But the U.S. Supreme Court has never considered the question before
us. 5 Its cases, to date, have all involved the interplay between actions
filed in federal court and competing cases filed in tribal court. 6
    ¶120 Justice Himonas cites Nevada v. Hicks, 533 U.S. 353 (2001),
and LaPlante, 480 U.S. at 16, for the proposition that the U.S. Supreme
Court’s “tribal exhaustion rule” governs “‘the relationship between
tribal courts and state and federal courts.’” Supra ¶ 93 (quoting Hicks,
533 U.S. at 398). But the cited language from Hicks comes from Justice
O’Connor’s concurring opinion. And neither case is addressed to the
question of relevance here—of whether federal law requires state
courts to stay their hand in anticipation of a tribal court proceeding


   4  Drumm v. Brown, 716 A.2d 50, 62–63 (Conn. 1998) (suggesting
that the exhaustion doctrine, inseparable from the policy of deference
to tribal courts, is an interstitial rule of federal common law, which is
binding upon state courts under the Supremacy Clause; concluding
that the exhaustion doctrine is binding on state courts because states
are equally likely to disrupt the “federal policy supporting tribal self-
government”); contra Meyer & Assocs. v. Coushatta Tribe of La., 992 So.
2d 446, 450 (La. 2008) (refusing to apply the doctrine of exhaustion in
the context of a state court proceeding); Astorga v. Wing, 118 P.3d
1103, 1106 (Ariz. Ct. App. 2005) (finding that the exhaustion rule did
not apply to state courts because federal courts have the ability to
review these determinations, whereas state courts do not).
   5 See Meyer & Assocs., 992 So. 2d at 450 (noting that “[t]he United
States Supreme Court has never held that the exhaustion of tribal
remedies doctrine applies to the states”).
   6 See Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S.
845, 856 (1985) (asserting that “the forum whose jurisdiction is being
challenged [shall have] the first opportunity to evaluate the factual
and legal bases for the challenge”); Iowa Mut. Ins. Co. v. LaPlante, 480
U.S. 9, 16 (1987) (emphasizing the need to avoid “direct competition
with the tribal courts”); Strate v. A-1 Contractors, 520 U.S. 438, 448
(1997) (summarizing U.S. Supreme Court precedent as establishing
“an exhaustion rule allowing tribal courts initially to respond to an
invocation of their own jurisdiction”).

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        ASSOCIATE CHIEF JUSTICE LEE, concurring and dissenting

that might be filed. 7 That is also true of every other tribal court
exhaustion case decided by the Supreme Court. So any broad
language in the court’s opinions, like that in LaPlante, is pure dicta.
See LaPlante, 480 U.S. at 16 (speaking of an exhaustion rule applying
to “any nontribal court”).
    ¶121 And there is reason to believe that the broad dicta should
not extend to a case like that presented here. Indeed the terms and
structure of the LaPlante opinion cut against this extension. LaPlante
speaks of “exhaustion.” Exhaustion, moreover, is a principle that
regulates the timing of proceedings in tribunals that operate in a
hierarchical relationship. 8 We speak of exhaustion of administrative
remedies, for example, as a rule requiring a party challenging the
actions of an administrative agency to raise and resolve its claims in
the administrative agency before it may raise them in a judicial
proceeding. 9 Exhaustion in habeas corpus proceedings is similar.
Petitioners in state custody must exhaust available state court
procedures before pursuing review in federal court. 10
   ¶122 The exhaustion question presented in LaPlante is along
these same lines. In holding that the plaintiff was required to
“exhaust available tribal remedies” before pressing its suit in federal



   7 Hicks was a declaratory judgment action filed in federal court by
the State of Nevada. 533 U.S. at 357. The State was challenging the
jurisdiction of a tribal court (in a proceeding pending there) over
tribal tort and federal civil rights claims. Id.
   8  Cf. Sarei v. Rio Tinto, PLC, 550 F.3d 822, 832 (9th Cir. 2008) (en
banc) (explaining that exhaustion requires a plaintiff to “obtain a
final decision of the highest court in the hierarchy of courts in the
legal system at issue”); Priester v. Baltimore Cty., 157 A.3d 301, 310
(Md. Ct. Spec. App. 2017) (describing exhaustion in administrative
law as “requir[ing] a grievant to invoke and pursue the
administrative process until he or she receives a final decision from
the agency at the utmost level of the administrative hierarchy”).
   9  See Woodford v. Ngo, 548 U.S. 81, 88–89 (2006) (“[N]o one is
entitled to judicial relief for a supposed or threatened injury until the
prescribed administrative remedy has been exhausted.”) (citation
omitted).
   10 28 U.S.C. § 2254(b)(1)(A); Davila v. Davis, 137 S. Ct. 2058, 2064
(2017) (“First, a state prisoner must exhaust available remedies before
presenting his claim to a federal habeas court.”).

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        ASSOCIATE CHIEF JUSTICE LEE, concurring and dissenting

court, the court also recognized that if the tribal courts concluded
that they had jurisdiction the parties retained the right to “challenge
that ruling” by seeking direct review in an action filed “in the
[federal] District Court.” 480 U.S. at 19. This is the notion of
“exhaustion”—the requirement of completing litigation filed in a
lower tribunal before seeking ultimate review in a higher one.
    ¶123 “Due to th[e] relationship” between tribal and federal
courts, 11 a plaintiff may not file an action arguably subject to the
jurisdiction of the tribal courts “directly in federal court . . . without
first exhausting such recourse as is available in Indian courts.”
Astorga v. Wing, 118 P.3d 1103, 1107 (Ariz. Ct. App. 2005). This is the
essence of the LaPlante rule of exhaustion. And it is not implicated in
a case in which there is no hierarchical relationship between the two
sovereign courts—and thus no right of direct review. 12 See Astorga,
118 P.3d at 1107 (concluding that the “principle of exhaustion”




   11 The notion of a hierarchical relationship between the tribal and
federal courts is no artifact of “insensitiv[ity]” to the “unique status
and history” of Indian tribes. Supra ¶ 103. It is a simple description of
a controlling premise of federal law. Thus, tribes are admittedly
“separate sovereigns” that pre-dated the U.S. Constitution. Supra
¶ 104 (quoting Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024,
2030 (2014)). And in that sense an Indian tribe is certainly distinct
from an administrative agency and even a state. But tribal courts and
agencies share at least one common characteristic—their decisions on
federal issues are subject to direct review in federal court. This puts
tribal courts and agencies on parallel footing in their resolution of
federal questions. And because tribal jurisdiction is a federal
question, see Nat’l Farmers Union, 471 U.S. at 857, the tribal courts are
subordinate to federal courts on questions of jurisdiction. They have
no such relationship with state courts.
   12 “[T]he balance between state and tribal causes of action is not a
jurisdictional see-saw, rising and falling in balanced harmony.
Rather, determinations of jurisdictional propriety derive from larger
notions of shared autonomy, co-existent sovereignty, and the
sometimes overlapping boundaries of governmental authority—both
geographic and with respect to tribal membership and property
ownership.” Hinkle v. Abeita, 283 P.3d 877, 884 (N.M. Ct. App. 2012).

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        ASSOCIATE CHIEF JUSTICE LEE, concurring and dissenting

announced in LaPlante “does not apply” to a case filed in state
court). 13
    ¶124 Justice Himonas says that the applicability of the LaPlante
principle of exhaustion to state court proceedings is resolved by
“fundamental principles of Indian law” announced by the Supreme
Court and reiterated in federal statutes. Supra ¶ 96. I disagree. It
should first be reiterated that there is no controlling authority on this
issue. The Supreme Court has never considered the important
question presented here.
   ¶125 Granted, the court has spoken generally about the federal
“‘policy of leaving Indians free from state jurisdiction and control.’”
Supra ¶ 96 (quoting Rice v. Olson, 324 U.S. 786, 789 (1945)). But these
generalities tell us nothing about the key questions presented—as to
how far that policy goes and how to balance it against countervailing
considerations. This case presents fundamental policy questions of
sovereignty and concurrent jurisdiction. Those questions are not
resolved by precedent. And in the absence of controlling federal
precedent this is a matter of first-impression for our decision. 14



   13  The point is not “to place state courts in a superior position to
federal courts in cases that implicate tribal jurisdiction.” Supra ¶ 97
(emphasis added). It is to account for the inferior position that we
occupy by virtue of our lack of any direct review authority over tribal
court decisions.
       I see no reason to expect that the approach that I advocate will
prompt plaintiffs “overwhelmingly” to avoid the federal forum and
file in state court instead. See supra ¶ 97. And even if some plaintiffs
migrate to state court, that will not at all “subvert the federal policy
of encouraging the development of tribal court systems.” Supra ¶ 97.
The policy of “[p]romot[ing] . . . tribal self-government,” LaPlante,
480 U.S. at 15, is advanced even under the regime that I have in
mind—a regime in which the state courts defer to tribal courts as
soon as a party invokes their jurisdiction. Indeed I believe that is
precisely the regime that the LaPlante line of cases has in mind even
for cases pending in federal court. See infra Part II.
   14 I suppose it’s possible, as the Connecticut Supreme Court has
indicated, that the U.S. Supreme Court could be deemed to have
announced “substantive” federal common law that is “binding in
state courts pursuant to the supremacy clause of the federal
constitution.” Drumm, 716 A.2d at 62. But I am unsure of the legal
basis for the court to impose such a “substantive” rule by means of
                                                      (continued . . .)
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        ASSOCIATE CHIEF JUSTICE LEE, concurring and dissenting

    ¶126 The cited federal statutes—the Indian Child Welfare Act, 25
U.S.C. § 1901 et seq., and the Major Crimes Act, 18 U.S.C. § 1153 et
seq.—do not establish federal law requiring state courts to stay our
exercise of jurisdiction in anticipation of a future-filed action in the
courts of an independent (Indian) sovereign. Indeed these statutes
seem to me to underscore the lack of any such federal rule. If
Congress meant for both federal and state courts to yield to tribal
courts in every circumstance where tribal courts have a colorable
claim of jurisdiction, there would be no reason for statutes giving
tribal courts exclusive jurisdiction. These statutes also show that
Congress has the power and ability to give tribal courts jurisdiction
when it chooses to do so. See also Hicks, 533 U.S. at 365 (“The States’
inherent jurisdiction on reservations can of course be stripped by
Congress.”).
    ¶127 There is a difference between federal policy and federal law.
Substantive federal law is generally made by Congress. 15 Here there
is no applicable law. And the absence of a statute restricting the
exercise of our jurisdiction emphasizes the need for us to address the
matter head-on.
   ¶128 Absent a controlling statute or binding precedent from the
U.S. Supreme Court, it is incumbent on us to decide how to balance
the needed deference to the sovereignty and jurisdiction of the tribal
courts. See Drumm v. Brown, 716 A.2d 50, 63 (Conn. 1998) (concluding
that even if the Supreme Court’s precedents establish “only a federal
court procedural rule,” that court may look to similar policies in




(continued . . .)
“common law.” That strikes me as the domain of Congress. In any
event, however, the court has not in fact announced any common
law rule that is applicable here. If and when it does so we will be
bound by its precedent. But until then we treat the question of any
limits on the exercise of our state-court jurisdiction to be a matter of
state law.
   15See, e.g., U.S. CONST. art. I, § 8 (delegating the power to regulate
commerce to Congress, to tax and spend for the general welfare, to
enforce the provisions of the civil war amendments, and “[t]o make
all Laws which shall be necessary and proper for carrying into
Execution” its specific powers).

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        ASSOCIATE CHIEF JUSTICE LEE, concurring and dissenting

“adopt[ing] [a] doctrine for the courts of this jurisdiction”). 16 I would
do so here.
    ¶129 Thus, I would not find that federal precedent or statutes
urge us to follow the framework set forth in LaPlante. But I would
adopt a rule of exhaustion as a matter of comity under Utah common
law—a rule that would call for exhaustion in the face of a pending
tribal court proceeding, but not before such a case is actually filed. 17
                                    II
    ¶130 Even assuming that the LaPlante line of cases applies to
state courts, I would not interpret those cases to require exhaustion
in the absence of a pending case filed in tribal courts. I agree with the
Connecticut Supreme Court’s analysis of this issue. See Drumm v.
Brown, 716 A.2d 50, 64 (Conn. 1998) (concluding that “exhaustion is
not required” under LaPlante “in the absence of a pending action in
the tribal court”).
    ¶131 Again there is no direct holding from the U.S. Supreme
Court on this point. “[I]n both cases in which the Supreme Court has
held that exhaustion was necessary, namely National Farmers Union
Ins. Cos. and Iowa Mutual Ins. Co. [v. LaPlante], a proceeding was
already pending in the tribal court.” Id.
    ¶132 The terms and structure of the Supreme Court’s opinions
strongly suggest “that the court contemplated application of the
requirement only when a parallel proceeding was pending in the


   16 See also Meyer & Assocs., 992 So. 2d at 446 (declining to extend
the tribal exhaustion doctrine to state court); Maxa v. Yakima
Petroleum, Inc., 924 P.2d 372 (Wash. Ct. App. 1996) (same); Michael
Minnis & Assocs. v. Kaw Nation, 90 P.3d 1009 (Okla. Civ. App. 2003)
(same).
   17  Justice Himonas notes that defendants in these types of suits
“could conceivably remove to federal court and then seek application
of the tribal exhaustion rule.” Supra ¶ 97 n.21. In Justice Himonas’s
view this supports the extension of the exhaustion rule to a case like
this one because requiring removal to federal court would “impose
the extra procedural hurdle of removal in order to reach the same
result.” Supra ¶ 97 n.21. Removal to federal court is unnecessary,
however. The defendant could invoke the tribal court’s jurisdiction
by filing a declaratory judgment action—thereby creating a pending
suit in tribal court. And Utah courts would then require exhaustion
of the pending suit in tribal court as a matter of comity.

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                    HARVEY v. UTE INDIAN TRIBE
        ASSOCIATE CHIEF JUSTICE LEE, concurring and dissenting

tribal court.” Id. The National Farmers Union case, for example, “stated
that the ‘policy of tribal self-government and self-determination . . .
favors a rule that will provide the forum whose jurisdiction is being
challenged the first opportunity to evaluate the factual and legal bases
for the challenge.’” Id. (quoting Nat’l Farmers Union Ins. Cos. V. Crow
Tribe of Indians, 471 U.S. 818, 856 (1985)) (emphasis altered). And
“[t]his narrow language presupposes an ongoing proceeding in the
tribal court.” Id.
    ¶133 The notion of deference to a “forum whose jurisdiction is
being challenged” is reflective of a rule that applies in the face of an
existing court proceeding. And one of the exceptions identified in
National Farmers Union is along the same lines: The exception says
that exhaustion is not “required” where the tribal suit “is patently
violative of express jurisdictional prohibitions.” 471 U.S. at 856 n.21
(emphasis added); see also Drumm, 716 A.2d at 64 (making this point).
    ¶134 There is further language in LaPlante that reinforces this
view. As the Connecticut Supreme Court noted, LaPlante mandates
that “‘federal courts should not intervene’ in tribal court
proceedings.” Drumm, 716 A.2d at 64 (quoting Iowa Mut. Ins. Co. v.
LaPlante, 480 U.S. 9, 17 (1987)) (emphasis in Drumm)). This
“reinforces the impression that the court contemplated application of
the rule specifically where tribal court proceedings have
commenced.” Id. Intervention is not possible without a pending
action. And that suggests that the LaPlante rule of exhaustion is
implicated in the presence of an actual pending proceeding in tribal
court. See also id. (quoting Granberry v. Greer, 481 U.S. 129, 131 n.4
(1987), for the proposition that the LaPlante principle of exhaustion
was triggered by a “parallel tribal court proceeding”); id. at 65
(quoting Strate v. A-1 Contractors, 520 U.S. 438, 448 (1997), speaking of
“an exhaustion rule allowing tribal courts initially to respond to an
invocation of their jurisdiction”). 18



   18 The reasoning in U.S. Supreme Court abstention cases also
supports this position. Younger v. Harris, 401 U.S. 37 (1971),
prohibited federal courts from enjoining pending state court criminal
proceedings, and Samuels v. Mackell, 401 U.S. 66 (1971), prohibited
federal courts from providing declaratory relief to plaintiffs who are
subject to corollary state criminal prosecution. The Younger court’s
reasoning rested on “proper respect for state functions” and on “not
unduly interfer[ing] with the legitimate activities of the States.” 401
U.S. at 44. But federal courts must proceed in the absence of a
                                                        (continued . . .)
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       ASSOCIATE CHIEF JUSTICE LEE, concurring and dissenting

    ¶135 Justice Himonas resists this conclusion on the ground that
LaPlante announces a “rule of exhaustion, not abstention.” Supra
¶ 106. But the dichotomy set up by Justice Himonas is overstated.
The principle of abstention is not limited to the notion of “balanc[ing]
multiple factors” such as “judicial economy concerns and the
avoidance of piecemeal litigation.” Supra ¶ 106. Abstention is simply
the idea of a court of one sovereign staying its hand in the face of the
exercise of jurisdiction by another. See Younger v. Harris, 401 U.S. 37,
43 (1971) (restraining federal courts to allow “state courts to try state
cases free from interference by federal courts”). Abstention, just as
exhaustion, is based on concerns regarding comity and deference to
ongoing judicial proceedings. And courts have no discretion with
some forms of abstention, as in Younger abstention, but must dismiss
or stay the federal suit. Id. (holding that absent several narrow
exceptions, federal courts must abstain from enjoining state court
criminal proceedings). Exhaustion and abstention, then, are closely
related doctrines, and speaking of this as an exhaustion case rather
than an abstention case does not tell us the answer to the question
presented.
    ¶136 LaPlante, in fact, speaks of its “rule” as a form of
“abstention.” It does so implicitly in its prohibition on intervention in
a tribal court action and its mandate for deference to a current
“challenge to [the tribal court’s] jurisdiction.” LePlante, 480 U.S. at 16
(internal quotation marks omitted). And it even does so explicitly—
in stating that the LaPlante “rule is analogous to principles of
abstention articulated in Colorado River Water Conservation Dist. v.
United States, 424 U.S. 800 (1976).” Id. at 16 n.8.
    ¶137 The substance of the LaPlante court’s analysis also reinforces
this view. Again I agree with the Connecticut Supreme Court’s view
of the matter. The LaPlante exhaustion rule can easily be understood



(continued . . .)
pending state action because the same policy considerations are not
present. Steffel v. Thompson, 415 U.S. 452, 462 (1974) (noting that a
federal court’s proceeding in the absence of a corollary state court
proceeding cannot “be interpreted as reflecting negatively upon the
state court’s ability to enforce constitutional principles”). Similarly,
when neither party has invoked the tribal court’s jurisdiction, a state
court exercising its jurisdiction cannot be viewed, as Justice Himonas
suggests, as intruding on “tribal self-government and self-
determination.” See supra ¶ 97 (citing LaPlante, 480 U.S. at 15).

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                   HARVEY v. UTE INDIAN TRIBE
       ASSOCIATE CHIEF JUSTICE LEE, concurring and dissenting

to be limited to a case in which there is a live, pending proceeding in
tribal court. That conclusion, in fact, is reinforced by the specific
policy considerations identified in LaPlante and National Farmers
Union. See Drumm, 716 A.2d at 65 (concluding that the concerns
“upon which the doctrine is based [are] most pressing when a
parallel proceeding is pending in the tribal court”).
   ¶138 The first consideration identified in LaPlante is the “federal
policy supporting tribal self-government,” which “directs a federal
court to stay its hand in order to give the tribal court ‘a full
opportunity to determine its own jurisdiction.’” LaPlante, 480 U.S. at
16 (citation omitted). The National Farmers Union formulation of this
policy is similar. There the court spoke of the need to allow the
“forum whose jurisdiction is being challenged” to have the “first
opportunity to evaluate the factual and legal bases for the challenge.”
471 U.S. at 856. As noted above, both of these statements of policy
presuppose the pendency of a parallel proceeding in tribal court.
Tribal courts are not charged with assessing their own jurisdiction on
their own accord—without a case having been filed by the parties. So
the directive for a nontribal court to “stay its hand” to “give the tribal
court a full opportunity to determine its own jurisdiction” makes no
sense unless and until a parallel tribal proceeding is actually filed.
    ¶139 As the Connecticut Supreme Court put it, “the risk that
adjudication by the nontribal forum will impair the tribal court’s
authority” is implicated “where proceedings arising from the same
transactions and occurrences, and involving substantially the same
issues and parties, are pending in both a tribal and nontribal court.”
Drumm, 716 A.2d at 65. But “the impact on a tribal court’s authority
of a nontribal court’s adjudication of a matter over which the tribal
court could, but has not, exercised jurisdiction” is unclear. Id. “Any
such effect is speculative and indirect, consisting merely of a lost
opportunity or a potential unrealized.” Id.
    ¶140 National Farmers Union also raised a concern about the
“procedural nightmare” that would ensue if an “underlying tort
action” is allowed to proceed with a pending tribal proceeding
hanging in the balance. 471 U.S. at 853, 856 (discussing the policy of
the advancement of the “orderly administration of justice”). The
court expressed discomfort with the potential procedural
complexities arising where a defendant is allowed to challenge tribal




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        ASSOCIATE CHIEF JUSTICE LEE, concurring and dissenting

court jurisdiction first in federal court.19 Id. at 856. But again this
policy is only clearly implicated in the face of a pending tribal
proceeding. There is no “procedural nightmare” without two
pending, overlapping cases. Indeed the majority’s holding here—its
requirement of a separate filing in a tribunal of a separate
sovereign—itself interferes with the “orderly administration of
justice.” The parties to this case are apparently content to have their
differences resolved in our Utah courts. The plaintiffs filed the case
here and no defendant saw fit to file a separate (declaratory)
proceeding in tribal court. Unless and until that happens, there is no
“procedural nightmare” and no interference with the “orderly
administration of justice.”
    ¶141 That also holds for the third policy identified in the National
Farmers Union—the concern that a rule of exhaustion “will encourage
tribal courts to explain to the parties the precise basis for accepting
jurisdiction,” and “provide other courts with the benefit of their
expertise in such matters in the event of further judicial review.” Id.
at 857. The majority says that “forcing Harvey to litigate in tribal
court” will “provide[] clarity to the parties and any reviewing court
on how the tribe views its own jurisdiction.” Supra ¶ 51 (emphasis
added). Perhaps that is true. But National Farmers Union does not
speak of “forcing” anyone to file a separate action in tribal court. It is
concerned with allowing tribal courts to “explain” their “basis for
accepting jurisdiction.” 471 U.S. at 857 (emphasis added). And the
notion of acceptance of jurisdiction presupposes a suit filed in tribal
court at the voluntary instance of the parties.
    ¶142 The rule adopted by the majority seems to me to get things
backwards. By telling parties who were content to resolve their
grievance in our courts that they must pursue a parallel action in the
courts of a separate sovereign, the court is neither advancing the



   19  The procedural nightmare that concerned the court arose in a
case in which the defendant challenged tribal jurisdiction first in
federal court without answering the complaint in tribal court. That
led to a series of inconsistent decisions: The tribal court entered a
default judgment, the federal district court entered a permanent
injunction against the tribal court proceedings, and the federal
appellate court reversed the entry of the injunction. Nat’l Farmers
Union, 471 U.S. at 847, 856. This sort of “procedural nightmare” is not
at all presented here. Because no tribal suit has yet been filed, this
case is simple and straightforward as it now stands.

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                   HARVEY v. UTE INDIAN TRIBE
       ASSOCIATE CHIEF JUSTICE LEE, concurring and dissenting

“orderly administration of justice” nor furthering Indian “self-
governance.” The Indian defendants named in this suit are also
citizens of the State of Utah. See Meyers v. Bd. of Educ. of San Juan Sch.
Dist., 905 F. Supp. 1544, 1564 (D. Utah 1995) (“[O]f course, on-
reservation Indians are citizens of the state within which they
reside.”). As such they are entitled to access to our courts to resolve
their differences with the plaintiffs. By directing them to file a
declaratory suit in tribal court—a suit they have heretofore declined
to file—we are not respecting their right of self-governance. We are
overriding it.
    ¶143 This is a separate basis for the holding of the Connecticut
Supreme Court in Drumm. There the court emphasized that “‘[c]ourts
are in the business of ruling on litigants’ contentions, and they
generally operate under the rule essential to the efficient
administration of justice, that where a court is vested with
jurisdiction over the subject-matter . . . and . . . obtains jurisdiction of
the person, it becomes its . . . duty to’ adjudicate the case before it.”
716 A.2d at 65 (quoting Ahneman v. Ahneman, 706 A.2d 960, 966 (1998)
(alternations in original)). “[T]his rule is not absolute.” Id. “It may be
relaxed, however, only ‘in an extreme, compelling situation,’” as
where “a proceeding arising out of the same transactions and
occurrences, and involving substantially the same issues and parties,
is pending before a tribal court.” Id. (citation omitted). In that
instance a rule of exhaustion makes sense, in light of the “likelihood
that state court adjudication will interfere with the proper authority
of the tribal court over reservation affairs, in conflict with the federal
policy supporting tribal self-government and self-determination.” Id.
“[W]here the tribal court potentially has jurisdiction over a matter,”
however, “but no proceeding is pending before it, the attenuated
effect on the tribal court’s authority of a nontribal court’s
adjudication of the matter is not sufficiently compelling to outweigh
the general obligation upon a court to exercise its jurisdiction when it
has been properly invoked.” Id. at 65–66 (emphasis added).
    ¶144 I would so hold. I would conclude that there is no binding
federal law requiring the parties to this proceeding to file an action in
tribal court. And unless and until such an action is filed, I would
defer to the parties’ choice of the Utah courts as the forum for the
resolution of their dispute. See id. at 66 (noting that some of the
parties in that case had filed a “tribal court action during the
pendency of th[e] appeal,” triggering a rule of “exhaustion” as to
those parties).




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                         Cite as: 2017 UT 75
       ASSOCIATE CHIEF JUSTICE LEE, concurring and dissenting

                                  III
    ¶145 Perhaps in time the U.S. Supreme Court will extend
its precedents and impose a requirement of exhaustion in a
case like this one. Or maybe Congress will enact a law
restricting the jurisdiction of the state courts in cases where
the parties could file in tribal court. But in the absence of any
such statute or precedent addressed to the questions of
sovereignty and concurrent jurisdiction at issue here, I would
not embrace a requirement of exhaustion of tribal remedies in
a case in which no one has expressed an interest in seeking
such a remedy. We owe it to the parties who invoke our
jurisdiction to resolve the dispute that is presented for
decision. And I would find that presumption rebutted only in
case of a direct conflict between an action filed in our courts
and a parallel proceeding pending in tribal court.




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