Your client has been sued in a tribal court. What now? The uncertainty of practicing in a foreign court can be daunting. As each tribe is a sovereign nation, the most important thing you can do is first learn the practices and procedures of that particular tribe’s legal proceedings. It is also important to have a good handle on the tribe’s particular decisions and statutes. Even the requirements for being admitted to practice in tribal court can vary from tribe to tribe, so it is not a given that you will be authorized to appear, even if the tribe is located in the state where you are licensed.

All of this means that many attorneys seek ways to remove their case from the tribal court. Depending on the parties, facts, and circumstances surrounding the issue at hand, the tribal court may or may not have jurisdiction to hear the case. If you believe the tribal court doesn’t have jurisdiction to hear the matter, your best option to challenge that jurisdiction is still in the tribal court itself, before looking to a federal court. The reason is that any litigant has a “duty to exhaust tribal remedies prior to proceeding in federal court.” Allstate Indem. Co. v. Stump, 191 F.3d 1071, 1073 (9th Cir.), amended, 197 F.3d 1031 (9th Cir. 1999). Tribes are permitted to defer jurisdiction to their courts prior to federal court intervention.

A federal court will not review the case on its merits and will focus solely on the issue of tribal court jurisdiction and whether all tribal remedies have been exhausted. Federal law has long recognized a respect for comity and deference to the tribal court as the appropriate court of first impression to determine jurisdiction. See Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 856–57 (1985); Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15–16 (1987); Burlington N. R.R. Co. v. Crow Tribal Council, 940 F.2d 1239, 1244–47 (9th Cir. 1991). Courts have even held that exhaustion of tribal remedies is “mandatory.” Burlington N. R.R. Co., 940 F.2d at 1245. This exhaustion requirement will even include any appellate review by the tribal court (if an appellate tribal court exists).

As support for this premise, the Supreme Court cites: (1) Congress’s commitment to “a policy of supporting tribal self-government and self-determination;” (2) a policy that allows “the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge;” and (3) judicial economy, which will best be served “by allowing a full record to be developed in the Tribal Court.” Nat’l Farmers, 471 U.S. at 856. Courts have interpreted National Farmers as determining that tribal court exhaustion is not a jurisdictional bar, but rather a prerequisite to a federal court’s exercise of its jurisdiction. Burlington N. R.R. Co., 940 F.2d at 1245 n.3. “Therefore, under National Farmers, the federal courts should not even make a ruling on tribal court jurisdiction . . . until tribal remedies are exhausted.” Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1228 (9th Cir. 1989).

There are exceptions to the rule. The four recognized exceptions to the requirement for exhaustion of tribal court remedies are: (1) an assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith; (2) the action is patently violative of express jurisdictional prohibitions; (3) exhaustion would be futile because of the lack of adequate opportunity to challenge the court’s jurisdiction; or (4) it is plain that tribal court jurisdiction is lacking. Burlington Northern R.R. v. Red Wolf, 196 F.3d 1059, 1065 (9th Cir. Mont. 1999) (citations omitted).

However, even if you believe the specific claim against your client falls under one of these exceptions, it is still wise to challenge that jurisdiction in tribal court first. The main reason being that the tribal exhaustion doctrine only requires that a “colorable claim” of tribal court jurisdiction be asserted, and courts give broad deference to the tribal courts to decide their own jurisdiction. Even if the tribal court is new or inexperienced, alleged incompetence or bias is not included in the exceptions to the exhaustion requirement. Iowa Mut. Ins. Co. 480 U.S. at 18–19. Starting in tribal court allows you to avoid the risk and expense of challenging such jurisdiction in federal court--and the need to overcome a very difficult hurdle—only to have the court tell you to go back and challenge it in tribal court first.

Unfortunately, exhausting tribal court remedies is a difficult hurdle to overcome when dealing with the issue of jurisdiction. Therefore, if you and your client foresee a potential lawsuit, the best defense is a good offense. If there is any potential claim for a counter-suit or cross-complaint, the party filing the lawsuit can pick the most appropriate or more favorable venue. It is much more difficult to argue that a tribal court should have jurisdiction over another venue when it was brought properly in the other venue first.