                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAY 8 1997
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    CITIZENS POTAWATOMI NATION,
    a/k/a Citizen Band Potawatomi Indian
    Tribe of Oklahoma,

               Plaintiff-Appellant,                    No. 96-6279
                                                 (D.C. No. 95-CV-1967-T)
    v.                                                 (W.D. Okla.)

    LEAMON FREEMAN, The Honorable
    Leamon Freeman District Judge for
    the Seventh Judicial District; C&L
    ENTERPRISES, INC., an Oklahoma
    corporation,

               Defendant-Appellee.




                            ORDER AND JUDGMENT *



Before PORFILIO and LOGAN, Circuit Judges, and BURRAGE, District Judge. **




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      Honorable Michael Burrage, Chief Judge, United States District Court for
the Eastern District of Oklahoma, sitting by designation.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Plaintiff Citizens Potawatomi Nation appeals from the dismissal of this

action on abstention grounds. The complaint sought to enjoin/invalidate a state

arbitration-enforcement proceeding brought by defendant C & L Enterprises, Inc.,

on the basis that it violated the Nation’s sovereign immunity and, hence, exceeded

state jurisdiction. C & L moved for dismissal, contending the district court

should, rather, facilitate the state’s pending resolution of the matter by abstaining

under Younger v. Harris, 401 U.S. 37 (1971). Opposing C & L’s motion, the

Nation argued that because Oklahoma rejects tribal sovereign immunity for

off-reservation commercial activities like those involved here--in direct conflict

with the case law of this circuit 1--it would be improper to defer determination of

this federal guarantee to the state courts. The district court held the state action

provided an adequate opportunity to raise federal issues, and dismissed under

Younger.



1
       Compare Sac & Fox Nation v. Hanson, 47 F.3d 1061, 1064-65 (10th Cir.),
cert. denied, 116 S. Ct. 57 (1995), with Hoover v. Kiowa Tribe, 909 P.2d 59, 62
(Okla. 1995), cert. denied, 116 S. Ct. 1675 (1996). See also Aircraft Equip. Co.
v. Kiowa Tribe, 921 P.2d 359, 361-62 (Okla. 1996).

                                          -2-
      At the present time, the state trial court has entered judgment for C & L

over the Nation’s sovereign immunity objection; the Oklahoma Court of Appeals

has affirmed that judgment on the basis of the state authority cited supra note 1;

and the Oklahoma Supreme Court has denied certiorari, ordered the entry of

judgment on the Nation’s supersedeas bond, and remanded for an award of

appellate fees. In short, although the ancillary fee proceedings and post-judgment

collection efforts may not be concluded, the substance of the case, in particular

the Nation’s entitlement to tribal sovereign immunity, has been finally and

unequivocally resolved. Thus, the Nation’s attempt to forestall an allegedly

unauthorized exercise of state court jurisdiction has been effectively rendered a

collateral attack on the state courts’ resultant disposition.

      Given this posture of the case, the appropriate focus is no longer on the

district court’s abstention order. Whatever the merits of that ruling, the current

availability of any federal relief for the Nation turns on the preclusive effect

accorded the state courts’ determination of its sovereign immunity claim--an issue

the parties have not briefed and the district court has not considered. See

generally Durfee v. Duke, 375 U.S. 106, 114 & n.12 (1963) (noting “sovereign

immunity may in some contexts be controlling” over rule respecting finality of

jurisdictional determinations, citing United States v. United States Fidelity &

Guar. Co., 309 U.S. 506 (1940)); Kiowa Tribe v. Lewis, 777 F.2d 587, 591-92


                                           -3-
(10th Cir. 1985) (discussing exceptions to rule that state court judgments be

accorded full faith and credit). Under these circumstances, we deem it most

appropriate to vacate the abstention order and remand for further proceedings. 2

We do not at this preliminary stage express or imply any opinion on the questions

of preclusion and immunity raised by this case.

      The judgment of the United States District Court for the Western District of

Oklahoma is VACATED and the cause is REMANDED.



                                                    Entered for the Court



                                                    John C. Porfilio
                                                    Circuit Judge




2
       C & L has moved to dismiss this appeal because (1) the Nation’s federal
suit “constitute[s] a prohibited appeal of a state court judgment,” (2) this court
should “abstain from hearing this matter under the doctrine of Younger,” and
(3) the suit “seeks relief which is violative of the Anti-Injunction Statute.” Brief
of C & L Enterprises, Inc. at 22, 25 & 28. We deny the motion, which does not
raise any issue touching on appellate jurisdiction. See generally 10th Cir. R.
27.2.1 (“A party may file a motion to dismiss only on the ground that the appeal
is not within the jurisdiction of this court.”). The cited objections concern the
impact or focus of the Nation’s lawsuit, and the propriety of judicial action on the
claims asserted therein, not our power to review such action. The failure to
appreciate this institutional distinction between trial and appellate court roles is
pointedly betrayed by C & L’s untenable insistence that Younger requires us to
abstain from reviewing the district court’s decision to abstain under Younger.

                                         -4-
