IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA GREAT FALLS DIVISION OF MOTION FOR DEFAULT JUDGMENT QUESTIONS PRESENTED

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1 Case 4:10-cv SEH Document 13 Filed 04/29/11 Page 1 of 21 PAUL R. HAFFEMAN JEFFRY M. FOSTER DAVIS, HATLEY, HAFFEMAN & TIGHE, P.C. The Milwaukee Station, Third Floor 101 River Drive North P.O. Box 2103 Great Falls, Montana Telephone: (406) paul.haffeman@dhhtlaw.com jeff.foster@dhhtlaw.com Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA GREAT FALLS DIVISION :::::::::::::::::::::::::::::::::::::::::::::::::::: CITY OF WOLF POINT, MAYOR DEWAYNE JAGER, WOLF POINT POLICE COMMISSIONERS, WOLF POINT CITY COUNCIL, POLICE CHIEF JEFF HARADA, AND TROY MELUM, -vs- Plaintiffs, CAUSE NO. CV GF-SEH BRIEF OF SUPPLEMENTAL AUTHORITIES IN SUPPORT OF MOTION FOR DEFAULT JUDGMENT JULIANNE MAIL, AND ALYSSA EAGLE BOY, Defendants. :::::::::::::::::::::::::::::::::::::::::::::::::::: QUESTIONS PRESENTED 1. Whether this Court should enter declaratory judgment that the Fort

2 Case 4:10-cv SEH Document 13 Filed 04/29/11 Page 2 of 21 Peck Tribal Court lacks civil jurisdiction over tort claims made by a tribal members against non-indian Montana public officials for their actions during the performance of their official duties and the political subdivision of the State of Montana by whom they were employed. 2. Whether this Court should grant Plaintiffs request for a permanent injunction against the Defendants from prosecuting their tort claims against the Plaintiffs in Fort Peck Tribal Court. STATEMENT OF PARTIES IN INTEREST 1. Plaintiff City of Wolf Point is a political subdivision of the state of Montana. Doc. 1, 4, Tribal Court Cause No , Complaint, 2 (July 21, 2010) (hereinafter TC Compl.), Exhibit A, Commisssioners Journal (April 6, 1915). 2. Plaintiffs DeWayne Jager, Wolf Point Police Commissioners, Wolf Point City Council, Jeff Harada, and Troy Melum are non-indian public officials of the City of Wolf Point. Doc. 1, 5-9. STANDARD OF REVIEW A federal district court's determination of the extent of the tribal court's jurisdiction is subject to de novo review. FMC v. Shoshone-Bannick Tribes, 905 F.2d 1311 (9th Cir. 1990), cert. denied, 499 U.S. 943 (1991). The district court's 2

3 Case 4:10-cv SEH Document 13 Filed 04/29/11 Page 3 of 21 factual findings on jurisdictional issues, however, are accepted unless clearly erroneous. Arizona Public Service Co. v. Aspaas, 77 F.3d 1128, 1132 (9th Cir. 1996). Whether exhaustion of tribal court remedies is required is a question of law reviewed de novo. Boozer v. Wilder, 381 F.3d 931, 934 (9th Cir. 2004), citing Boxx v. Long Warrior, 265 F.3d 771, 774 (9th Cir.2001). FACTUAL HISTORY 1. On May 21, 2010, Officer Troy Melum of the Wolf Point Police Department and responded to a report of breaking and entering at 117 E. Dawson Street in Wolf Point, Montana. Doc. 1, 12, TC Compl, 8, Exhibit B, Roosevelt County Sherriff s Report. 2. When Melum arrived he observed another officer questioning two women later identified as the Defendants Julianne Mail and Alyssa Eagle Boy. During the questioning and investigation of the breaking and entering report, Defendant Mail attempted to flee the scene, resisted arrest, and was eventually arrested by Officer Melum and turned over to Fort Peck Tribal Police. Doc. 1, 13-15, Ex. B. 3. During the questioning of the Defendants and the arrest and detention of Mail, Plaintiff Melum was acting in his official capacity as an officer of the Wolf Point Police Department. Ex. B. 3

4 Case 4:10-cv SEH Document 13 Filed 04/29/11 Page 4 of The Fort Peck Tribe has entered into a cooperative agreement providing for cross-deputization of law enforcement officers with the City of Wolf Point, Montana, the City of Poplar, Montana, the Montana Highway Patrol, and the Montana counties of Roosevelt and Valley. TC Compl., 4, Exhibit C, Cross Deputization Agreement (June 23, 2003). PROCEDURAL HISTORY 1. On June 21, 2010, Defendants Mail and Eagle Boy filed a lawsuit in the Fort Peck Tribal Court, Cause Number TC Compl. 2. Defendants allege in their tribal court complaint that Troy Melum violated tribal law when he brutally assaulted Plaintiff Julianne Mail...while onduty for the city of Wolf Point as an Animal Control Officer. TC Compl., 8, Defendants further allege the City of Wolf Point, Mayor Dwayne Jager, Wolf Point Police Commissioners, Wolf Point City Council and Police Chief Jeff Harada violated tribal law by knowingly allowing Melum to engage in this conduct under the color of law and for engaging in official misconduct. TC Compl., Lastly, the Defendants allege their federally protected constitutional rights have been violated as outlined in [sic] U.S.C. 25 Article 1302 # 2 & #7 of the Indian Civil Rights Act of 1968[.] TC Compl., 17. 4

5 Case 4:10-cv SEH Document 13 Filed 04/29/11 Page 5 of The Defendants complaint seeks $376, in compensatory damages and $3,768, in punitive damages. TC Compl., p. 5, 3-4. SUMMARY OF ARGUMENTS Plaintiffs seek declaratory judgment that the Fort Peck Tribal Court lacks subject matter jurisdiction to hear Fort Peck Tribal Court, Cause Number , because it has no civil jurisdiction over Plaintiffs as state officials in execution of their official duties and a political subdivision of Montana by whome they were employed. Further, Plaintiffs seek a permanent injunction against the Defendants precluding them from prosecuting Fort Peck Tribal Court, Cause Number This Court has the authority to grant the Plaintiffs requested relief because this case is ripe for decision. This Court has personal jurisdiction over the parties, and subject matter jurisdiction under 28 U.S.C. 1331, to enter declaratory judgment that the Fort Peck Tribal Court lacks jurisdiction and enjoin the Plaintiffs from prosecuting their tort claims in Fort Peck Tribal Court. In addition, all necessary parties to this litigation have been joined under Fed. R. Civ. P. 19. ARGUMENTS I. THIS COURT HAS PERSONAL JURISDICTION OVER THE DEFENDANTS. 5

6 Case 4:10-cv SEH Document 13 Filed 04/29/11 Page 6 of 21 The Court has personal jurisdiction over the Defendants as they were both properly served under the Federal Rules of Civil Procedure. Defendant Mail was personally served pursuant to the Federal Rules of Civil Procedure on December 18, 2010, and therefore, was required to answer on or before January 10, Doc. 3. Defendant Mail has not answered or otherwise pled. Defendant Eagle Boy was personally served on January 10, 2011, and therefore, was required to answer on or before January 31, Doc. 4. Defendant Eagle Boy has not answered or otherwise pled. The due process rights of the Defendants have not been offended. Each Defendant was served according to the Federal Rules of Civil Procedure and failed to answer or otherwise show cause why this Court should not exercise jurisdiction. Accordingly, both Defendants have been properly served and this Court has personal jurisdiction over both Defendants. II. THIS COURT HAS SUBJECT MATTER JURISDICTION. Under federal law, a federal court may entertain a challenge to tribal court jurisdiction after the plaintiff has exhausted its remedies in tribal court or when one of the four exceptions to the tribal court exhaustion rule apply. Boozer v. Wilder, 381 F.3d 931, 935 (9th Cir. 2004) An injunction against enforcement 6

7 Case 4:10-cv SEH Document 13 Filed 04/29/11 Page 7 of 21 efforts in tribal court is a permissible (and common) form of relief a federal district court is authorized to provide before a tribal court has addressed its ability to entertain jurisdiction when one of these four exceptions to the tribal court exhaustion rule applies. See Burlington N. R. Co. v. Red Wolf, 196 F.3d 1059, (9th Cir. 1999) (The federal district court was proper in providing injunctive relief, when exhaustion was not required because the tribal court plainly lacked jurisdiction.); see also, e.g., Nevada v. Hicks, 533 U.S. 353 (2001) (State officials were not required to adhere to tribal court exhaustion requirement before seeking declaratory relief from the federal district court.); Strate v. A-1 Contractors, 520 U.S. 438, 450 (1997) ( In sum, we do not extract from National Farmers anything more than a prudential exhaustion rule, in deference to the capacity of tribal courts to explain to the parties the precise basis for accepting [or rejecting] jurisdiction. ). Since Plaintiffs in this case meet one of the four exceptions to the tribal court exhaustion rule, this Court may grant the Plaintiffs request for declaratory judgment that the Fort Peck Tribal Court lacks subject matter jurisdiction and enjoin the Defendants from prosecuting their claims in Fort Peck Tribal Court. The question of whether an Indian tribe has the power to compel a non-indian to submit to the civil jurisdiction of a tribal court is a federal question 7

8 Case 4:10-cv SEH Document 13 Filed 04/29/11 Page 8 of 21 under 28 U.S.C National Farmers Union Ins. Co. v. Crow Tribe, 471 U.S. 845, 852 (1985), see also Strate v. A-1 Contractors, 520 U.S. 438, 448, 117 S.Ct. 1404, 1411, 137 L.Ed.2d 661 (1997); Iowa Mutual Insurance Company v. LaPlante, 480 U.S. 9, 19, 107 S.Ct. 971, 978, 94 L.Ed.2d 10 (1987). A federal court, however, should not entertain a challenge to the jurisdiction of a tribal court until after a petitioner has exhausted its remedies in the tribal court, unless one of the Supreme Court s four exceptions apply. National Farmers Union Insurance Co., 471 U.S. at ; Boozer v. Wilder, 381 F.3d 931 (9th Cir.2004) The Supreme Court s four exceptions to the exhaustion rule are as follows: (1) when an assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith, ; (2) when the tribal court action is patently violative of express jurisdictional prohibitions ; (3) when exhaustion would be futile because of the lack of an adequate opportunity to challenge the [tribal] court's jurisdiction ; and (4) when it is plain that tribal court jurisdiction is lacking, so that the exhaustion requirement would serve no purpose other than delay. Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842, 847 (9th Cir.2009), citing Nevada v. Hicks, 533 U.S. 353 (2001). The first three exceptions are not important to this Court s inquiry. It is the fourth exception, applied in Nevada v. Hicks, that eliminates the Plaintiffs need in this case to exhaust tribal court remedies. In Nevada v. Hicks, Hicks was a member of the Fallon Paiute-Shoshone 8

9 Case 4:10-cv SEH Document 13 Filed 04/29/11 Page 9 of 21 Tribes of western Nevada and lived on the Tribes' reservation. After Nevada state game wardens executed state-court and tribal-court search warrants to search Hicks's home for evidence of an off-reservation crime, he filed suit in the tribal court against, inter alias, the wardens in their individual capacities and the State of Nevada, alleging trespass, abuse of process, and violation of constitutional rights remediable under 42 U.S.C Hicks, 533 U.S. at 353. Both the district court and the Ninth Circuit held that the wardens would have to exhaust their claims in the Tribal Court. In reversing those courts, the Supreme Court held the tribal court did not have jurisdiction to adjudicate tort claims arising from state officials execution of their official duties, and in such cases the exhaustion of claims in tribal court was not required before seeking federal court relief. Id. In applying the fourth exception the Supreme Court stated: Since it is clear, as we have discussed, that tribal courts lack jurisdiction over state officials for causes of action relating to their performance of official duties, adherence to the tribal exhaustion requirement in such cases would serve no purpose other than delay. Hicks, 533 U.S. at 369. The same is true in this case. The Plaintiffs are both a political subdvision of the State of Montana and officials of that political subdivision, and the tort complaints brought by the Defendants in tribal court are regarding performance of 9

10 Case 4:10-cv SEH Document 13 Filed 04/29/11 Page 10 of 21 their official duties. As was the case in Hicks, under these circumstances it would be needless to require Plaintiffs to exhaust tribal court remedies before seeking injunctive relief from the Federal District Court, when such adherence to this rule would serve no purpose other than delay. Since Plaintiffs have met the fourth exception to the tribal court exhaustion rule, this Court has the authority to declare that the Fort Peck Tribal Court lacks subject matter jurisdiction and enjoin the Defendants from prosecuting their tort claims against the Plaintiffs in tribal court. III. FORT PECK TRIBAL COURT LACKS CIVIL JURISDICTION OVER THE PLAINTIFFS. The traditional equitable criteria for obtaining injunctive relief include: (1) a strong likelihood of success on the merits; (2) the possibility of irreparable injury to the plaintiff if the preliminary relief is not granted; (3) a balance of hardships favoring the plaintiff; and (4) advancement of the public interest. See, Los Angeles Memorial Coliseum Com'n v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980) (citations omitted). Accordingly, a party is entitled to injunctive relief provided it demonstrates probable success on the merits and a possibility of irreparable injury, or if it demonstrates a fair chance of success on the merits (i.e., serious questions are raised) and the balance of hardships tips sharply in 10

11 Case 4:10-cv SEH Document 13 Filed 04/29/11 Page 11 of 21 their favor. Confederated Tribes & Bands of Yakama v. Baldrige, 898 F.Supp. 1477, 1483 (W.D.Wash.1995), quoting, State of Alaska v. Native Village of Venetie, 856 F.2d 1384, 1389 (9th Cir.1988). The injunctive relief asked for by the Plaintiffs is appropriate because they would ultimately be successful in challenging Fort Peck Tribal Court s jurisdiction and the balance of hardships tips sharply in their favor. A. Plaintiffs will ultimately be successful in challenging Fort Peck Tribal Court s jurisdiction. Plaintiffs will ultimately be successful because the Fort Peck Tribal Court has no civil jurisdiction over non-members and because of the doctrine of sovereign immunity. Indian tribes do not have civil jurisdiction over non-members, save for two exceptions: (1) where a consensual relationship exists between the Tribe and non-members; and (2) where jurisdiction of the Tribal Court is necessary to preserve tribal sovereignty. Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). In this case, Nevada v. Hicks is dispositive with regard to both of these exceptions. Hicks, 533 U.S. at The first Montana exception is inapplicable because there is no consensual relationship between the Tribe and the Plaintiffs. In Hicks, the Supreme Court 11

12 Case 4:10-cv SEH Document 13 Filed 04/29/11 Page 12 of 21 analyzed "consensual relationship" and determined this exception only extends to "private consensual" arrangements. The Court (this is an opinion, bear in mind, not a statute) obviously did not have in mind States or state officers acting in their governmental capacity; it was referring to private individuals who voluntarily submitted themselves to tribal regulatory jurisdiction by the arrangements that they (or their employers) entered into. This is confirmed by the fact that all four of the cases in the immediately following citation involved private commercial actors. See Confederated Tribes, 447 U.S., at 152, 100 S.Ct (nonmember purchasers of cigarettes from tribal outlet); Williams v. Lee, 358 U.S., at 217, 79 S.Ct. 269 (general store on the Navajo reservation); Morris v. Hitchcock, 194 U.S. 384, 24 S.Ct. 712, 48 L.Ed (1904) (ranchers grazing livestock and horses on Indian lands under contracts with individual members of said tribes ); Buster v. Wright, 135 F. 947, 950 (C.A ) (challenge to the permit tax charged by a tribe to nonmembers for the privilege... of trading within the borders ). Hicks, 533 U.S. at 372 (emphasis supplied). The only conceivable argument to apply the first Montana exception in this case is the existence of the crossdeputization agreement between the Fort Peck Tribe and the City of Wolf Point. This argument, however, is unpersuasive in light of Hicks. It is clear from the holding in Hicks, that the Court did not have in mind Sates or State officers acting in their governmental capacity in applying the first exception. Id. Since Plaintiffs were acting in their governmental capacity in entering into this agreement, there is no private consensual relationship under Hicks and Montana s first exception is inapplicable. 12

13 Case 4:10-cv SEH Document 13 Filed 04/29/11 Page 13 of 21 Hicks is even more instructive on the second Montana exception regarding whether Fort Peck Tribal Court exercising civil jurisdiction over the Plaintiffs is necessary to preserve tribal sovereignty. The Court in Hicks found Tribal authority to regulate state officers in executing their official duties is not essential to tribal self-government or internal relations. We conclude today, in accordance with these prior statements, that tribal authority to regulate state officers in executing process related to the violation, off reservation, of state laws is not essential to tribal self-government or internal relations-to the right to make laws and be ruled by them. The State's interest in execution of process is considerable, and even when it relates to Indian-fee lands it no more impairs the tribe's self-government than federal enforcement of federal law impairs state government. Hicks, 533 U.S. at 364. Like the State of Nevada in Hicks, the Plaintiffs interest in enforcing Montana state law is considerable and does not impair the ability of the Fort Peck Tribe to self-govern. Therefore, the second Montana exception does not apply and the Fort Peck Tribal Court has no jurisdiction over the Plaintiffs. Lastly, the Plaintiff City of Wolf Point is a political subdivision of the State of Montana and the remaining Plaintiffs are agents of the City of Wolf Point. Absent an unequivocal waiver of sovereign immunity and consent to be sued in tribal court, the Fort Peck Tribal Court lacks jurisdiction over the State of Montana regarding tort claims on the reservation. State of Mont. v. Gilham, 932 F. 13

14 Case 4:10-cv SEH Document 13 Filed 04/29/11 Page 14 of 21 Supp. 1215, 1224 (D. Mont. 1996) aff'd, 127 F.3d 897 (9th Cir. 1997) opinion amended and superseded sub nom. State of Montana v. Gilham, 133 F.3d 1133 (9th Cir. 1998). The Plaintiffs are both a political subdivision and agents of the State of Montana and there has been no waiver of sovereign immunity; therefore, the Fort Peck Tribal Court lacks jurisdiction. Since the Fort Peck Tribal Court lacks jurisdiction to hear the Defendants claims, the Plaintiffs will ultimately be successful and a permanent injunction is appropriate. B. A balance of hardships tips sharply in Plaintiffs favor. If this Court does not enjoin the Defendants from continuing prosecution of their tort claims in Fort Peck Tribal Court, the Plaintiffs will have no choice but to defend this case on the merits. Such a defense may require years of litigation before the Fort Peck Tribal Court enters its final decision regarding the Defendants claims. At which point the Plaintiffs may be back before this Court making the same arguments to challenge the Fort Peck Tribal Court s civil jurisdiction over the Plaintiffs. Such a process would be an unneeded waste of all parties money and time and a waste of this Court and the tribal court s valuable resources. Likewise, the Defendants would fall prey to the same hardship if they 14

15 Case 4:10-cv SEH Document 13 Filed 04/29/11 Page 15 of 21 continue this course in the Fort Peck Tribal Court. Defendants would proceed and may ultimately be successful. However, even if they were successful the Fort Peck Tribal Court would not have had jurisdiction and its judgment would be wholly unenforceable. On the other hand, Defendants would not be precluded from bringing their case before a court of competent jurisdiction. Enjoining the Defendants from continuing in Fort Peck Tribal Court does not preclude them from asserting their claims in Montana State District Court or even before this Court under 42 U.S.C (as their complaint seems to suggest). Thus, the only hardship incurred by the Defendants, if this Court grants the Plaintiffs injunction, is that the Defendants will be required to refile this case in a court of competent jurisdiction. Under the circumstances, that is no hardship at all. Thus, it is clear that if the Court does not grant Plaintiffs requested relief, all parties would suffer needlessly with protracted tribal court litigation that would unnecessarily drain the resources of the Fort Peck Tribal Court and this Court. IV. ALL NECESSARY PARTIES HAVE BEEN JOINED UNDER FED. R. CIV. P.19. This case is ripe for decision by this Court because the Fort PeckTribal Court is not a necessary party to this litigation. Under Federal Rule of Civil Procedure 19, a non-party is "indispensable" to an action if (1) the non-party is 15

16 Case 4:10-cv SEH Document 13 Filed 04/29/11 Page 16 of 21 "necessary" under Rule 19(a); (2) the non-party cannot be joined (due to sovereign immunity, for example); and (3) the non-party's absence would mandate dismissal according to a weighing of the factors outlined in Rule 19(b). Because the Fort PeckTribal Court is not a necessary party, this Court need not address steps two and three. The Ninth Circuit applies a two-pronged analysis to determine whether a non-party is necessary. Yellowstone County v. Pease, 96 F.3d 1169, 1172 (9th Cir.1996); see also Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir.1990); Confederated Tribes of the Chehalis Indian Reservation v. Lujan, 928 F.2d 1496, 1500, 1501 (9th Cir.1991) (O'Scannlain, J., concurring in part and dissenting in part) ( The relevant question for Rule 19(a) must be whether success in the litigation can afford the plaintiffs the relief for which they have prayed. ) First, a court must determine whether complete relief is possible among those already parties to the suit. Id. Second, a party is necessary if a court determines that the non-party has a legally protected interest in the suit. Id. 1. Complete relief is possible among those already parties to the suit. Plaintiffs seek relief from this Court to declare the Fort Peck Tribal Court lacks subject matter jurisdiction and enjoin Defendants Mail and Eagle Boy from prosecuting their claims in Fort Peck Tribal Court. It is not necessary to join the 16

17 Case 4:10-cv SEH Document 13 Filed 04/29/11 Page 17 of 21 tribal court in order for this Court to provide complete relief to the Plaintiffs under Rule 19. In Yellowstone County v. Pease, the Ninth Circuit concluded it is not necessary to join the tribal court as a party to Pease's suit for the simple reason that tribal judges, like state judges, are expected to comply with binding pronouncements of the federal courts. Pease, 96 F.3d at ; citing for example, In re Justices of Supreme Court of Puerto Rico, 695 F.2d 17, 23 (1st Cir.1982) (citations omitted) ( it is ordinarily presumed that judges will comply with a declaration of a statute's unconstitutionality without further compulsion ); James v. Jones, 148 F.R.D. 196, 203 (W.D.Ky.1993) (holding that state judges were not necessary parties to an action challenging constitutionality of state laws relating to detention of juveniles). If this Court enters judgment finding the Fort Peck Tribal Court lacks civil jurisdiction, the Defendants, as well as the Fort Peck Tribal Court, will be required to recognize this Court s judgment. Accordingly, this Court can provide complete relief without joining the tribal court under Rule The Fort Peck Tribal Court does not have a legally protected interest in the suit. This Court is the final arbitrator of whether the Fort Peck Tribal Court has 17

18 Case 4:10-cv SEH Document 13 Filed 04/29/11 Page 18 of 21 civil jurisdiction over the Plaintiffs. The Plaintiffs challenge to the Fort Peck Tribal Court's jurisdiction raises a federal question that is clearly within the jurisdiction of a federal district court. FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311, 1314 (9th Cir.1990) (citations omitted) ( [F]ederal courts are the final arbiters of federal law, and the question of tribal court jurisdiction is a federal question. ), cert. denied, 499 U.S. 943, 111 S.Ct. 1404, 113 L.Ed.2d 459 (1991); see National Farmers Union, 471 U.S. at 852, 105 S.Ct. at Since the Fort Peck Tribal Court lacks civil jurisdiction over the Plaintiffs, the Fort Peck Tribal Court has no legally protected interest in this suit and this case is ripe for this Court s decision. Tribal authority to regulate state officers in executing their official duties is not essential to tribal self-government or internal relations - to the right to make laws and be ruled by them. " Hicks, 533 U.S. at 364. The only plausible legal interest the Fort Peck Tribal Court has in this lawsuit is that it be provided an opportunity to evaluate the factual and legal bases for the Plaintiffs challenge to its jurisdiction (tribal court exhaustion rule). National Farmers Union Ins. Co., 471 U.S. at 856. However, as discussed previously, it is not necessary under the fourth exception to the tribal exhaustion rule for this Court to allow the Fort Peck Tribal Court an opportunity to determine its jurisdiction when the issues before the 18

19 Case 4:10-cv SEH Document 13 Filed 04/29/11 Page 19 of 21 tribal court involve tort claims against a political subdivision of the State of Montana and its employees during the execution of their official duties. Hicks, 533 U.S. at 369 (when it is plain that tribal court lacks jurisdiction the exhaustion requirement serves no purpose other than delay). The Fort Peck Tribal Court plainly lacks jurisdiction, and as the final arbitrator of that question, this Court has full authority provide the Plaintiffs requested relief irrespective of the Fort Peck Tribal Court s determination of its jurisdiction. Since the Fort Peck Tribal Court has no civil jurisdiction over the Plaintiffs, the Fort Peck Tribal Court does not have a legally protected interest under Rule 19 and the claim is ripe for this Court s determination. CONCLUSION For the reasons state above, this Court should enter its declaratory judgment that the Fort Peck Tribal Court lacks civil jurisdiction over tort claims made by the Defendants against the Plaintiff City of Wolf Point as a political subdivision of the State of Montana and its employees for their actions during execution of their official duties. Furthermore, the Court should grant a permanent injunction against the Defendants from prosecuting their tort claims against the Plaintiffs in Fort Peck Tribal Court. 19

20 Case 4:10-cv SEH Document 13 Filed 04/29/11 Page 20 of 21 DATED this 29th day of April, DAVIS, HATLEY, HAFFEMAN & TIGHE, P.C. By /s/jeffry M. Foster JEFFRY M. FOSTER Attorneys for Plaintiffs 20

21 Case 4:10-cv SEH Document 13 Filed 04/29/11 Page 21 of 21 CERTIFICATE OF COMPLIANCE RULE 7.1(d)(2)(E) The undersigned certifies this brief is 4045 words excluding caption and certificate of compliance. DATED this 29th day of April, DAVIS, HATLEY, HAFFEMAN & TIGHE, P.C. By /s/jeffry M. Foster JEFFRY M. FOSTER Attorneys for Plaintiffs 21

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