CROW COURT OF APPEALS
IN AND FOR THE CROW INDIAN RESERVATION
CROW AGENCY, MONTANA
CIV. APP. DOCKET NO. 97-010
ESTATES OF RED WOLF and BULL TAIL,
Plaintiffs-Appellees,
vs.
BURLINGTON NORTHERN RAILROAD
COMPANY, a corporation,
Defendant-Appellant.
Decision Entered January 27, 1998
[Cite as: 1998 CROW 1]
Before: Glen Birdinground, C.J., Albert L. Gros-Ventre, J., and William C. Watt, J.
ORDER RE. MOTION FOR STAY
¶1 Defendant-appellant Burlington Northern Railroad Company (“BN”) has requested the court to stay further proceedings in this appeal pending a decision by the U.S. District Court on jurisdictional questions raised by Strate v. A-1 Contractors, 520 U.S. ___, 117 S. Ct. 1404 (1997) (“Strate”), following remands by the Supreme Court and the U.S. Court of Appeals for the Ninth Circuit. See Burlington Northern Railroad Co. v. Estate of Red Wolf, 118 S. Ct. 37 (1997) (granting certiorari, vacating and remanding); No. 96-35254 and -35265 (9th Cir., Nov. 13, 1997) (order vacating judgment and remanding); Cause No. CV 96-17-BLG-JDS (D. Mont., Dec. 2, 1997) (order lifting stay and allowing amended complaint).
¶2 In support of its motion, BN argues that (1) pursuant to footnote 14 of the Strate opinion, BN is not required to exhaust Tribal judicial remedies otherwise required by National Farmers Union Ins. Co. v. Crow Tribe, 471 U.S. 845 (1985), and (2) staying proceedings in the Crow Court of Appeals while the federal district court considers federal-law jurisdictional issues will serve the interests of judicial economy and conserve the parties’ resources. The plaintiffs-appellees oppose the motion, and have argued here and before the U.S. District Court that it is the federal court that must dismiss or stay proceedings there pending this court’s decision on jurisdiction and the merits of the appeal.
I.
¶3 Strate involved an accident which occurred “on a portion of a public highway maintained by the State under a federally granted right-of-way over Indian reservation land[.]” Strate, 117 S. Ct. at 1407. The Court held that such a right-of-way was “equivalent for nonmember governance purposes, to alienated, non-Indian land[,]” and accordingly, both Tribal regulatory and adjudicatory jurisdiction were subject to the same constraints on the Tribe’s inherent sovereign authority set out in Montana v. United States, 450 U.S. 544 (1981) (“Montana”). Strate, 117 S.Ct. at 1413 (footnote omitted). After finding that neither of the Montana exceptions applied, the Court stated in a footnote:
When, as in this case, it is plain that no federal grant provides for tribal governance of nonmembers’ conduct on land covered by Montana’s main rule, it will be equally evident that tribal courts lack adjudicatory authority over disputes arising from such conduct. . . Therefore, when tribal-court jurisdiction over an action such as this one is challenged in a federal court, the otherwise applicable exhaustion requirement. . . must give way, for it would serve no purpose other than delay.
Id., 117 S. Ct. at 1416 n.14 (citations omitted).
¶4 Based solely on our reading of Strate, it appears that the jurisdictional inquiry in this case is threefold: (1) whether the accident occurred on alienated, non-Indian land; (2) if so, whether either of the Montana exceptions applies; and (3) if neither Montana exception applies, whether any federal grant provides for Tribal governance of nonmembers’ conduct on such land.
¶5 We have specifically requested the parties to brief these issues, and invited them to supplement the record with such public records as they deem pertinent to the jurisdictional inquiry under Strate. See Limited Remand Order and Revised Order Governing Conduct of Appeal (June 17, 1997) at 2. At that time, we also held on a preliminary basis that the court’s jurisdiction is not controlled by Strate’s footnote 14. Id. at 2 n.1.
¶6 The accident in this case occurred at least in part on a railroad right-of-way granted to BN’s predecessor-in-interest by specific acts of Congress, 25 Stat. 660 (1889), and 27 Stat. 529 (1893). BN’s Amended Complaint ¶ 12, No. CV 96-17-BLG-JDS (Dec. 8, 1997) (Exh. B. to Plaintiffs’ Response to Dec. 3, 1997 Order). In addition to the distinguishing features noted in our previous order, the federal courts have held in the past that such railroad grants, including the one at issue here, do not divest the Tribe of all its interest in the right-of-way. United States v. Soldana, 246 U.S. 530, 532-33 (1912); see also, Burlington Northern v. Blackfeet Tribe, 924 F.2d 899, 902 (9th Cir. 1991) (construing Act of February 15, 1887, 24 Stat. 402). Thus, based on our preliminary review, it would appear that the right-of-way at issue in this case is not obviously equivalent to alienated, non-Indian land that would be covered by Montana’s main rule pursuant to footnote 14 of Strate. To the contrary, federal decisional law regarding the Tribes’ retained interests in railroad rights-of-way granted by Congress is sufficient to raise a presumption of Tribal Court jurisdiction under Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987). See also, Strate, 114 S.Ct. at 1413 (recognizing that Tribes “retain considerable control over nonmember conduct on tribal land”).
¶7 This preliminary conclusion eliminates the need to analyze whether either of the Montana exceptions apply at this time.[1] We therefore reaffirm our earlier holding that Strate does not automatically remove this case from the jurisdiction of the Crow Tribal courts or from the otherwise applicable exhaustion requirement under National Farmers Union, which recognizes the Tribal courts’ responsibility to determine their own jurisdiction under federal law. Of course, this court’s ultimate decision on subject matter jurisdiction will be further informed by the parties’ appellate briefs and supporting materials.
II.
¶8 BN also refers us to the recent order of the Crow Tribal Court (Arneson, J.) in the case of Dust v. Austin Express, Civ. Case No. 96-436 (Nov. 21, 1997), staying further Tribal Court proceedings pending a disposition by the U.S. District Court in related proceedings challenging the jurisdiction of the Tribal Court.
¶9 The accident in Dust occurred on a State highway right-of-way, which on its face brings it within the holding in Strate as construed by the Ninth Circuit in Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997). Furthermore, the procedural context of the Tribal Court’s stay in Dust is quite different from that presented here. Proceedings in Dust are still at the pre-trial stage, and the Tribal Court’s Order Denying Motion to Dismiss entered October 22, 1997, is probably not a final order within this court’s appellate jurisdiction. See, e.g., In re. Marriage of Old Coyote and Villeburn, Civ. App. Docket No. 97-013 (Crow Ct. App., Aug. 29, 1997) (dismissing for lack of appellate jurisdiction), following In re. Benny, 791 F.2d 712, 718 (9th Cir. 1986); Catlin v. United States, 324 U.S. 229, 233 (1945); and Confederated Salish & Kootenai Tribes v. Simonich, 29 F. 3d 1398, 1401-02 (9th Cir. 1994). Thus, because exhaustion of Tribal remedies in Dust would presumably require a trial followed by a full appeal to this court, and considering the substantive differences between the cases, the interests of sound judicial administration in Dust weigh much more heavily in favor of deferring to the federal court’s jurisdictional determination.
¶10 On the other hand, this case has already been through a full trial and extensive post-trial proceedings, the parties’ principal appellate briefs have already been filed in this court, and the parties’ additional litigation expense in prosecuting this appeal to conclusion should not pose a hardship. It therefore appears that the interests of sound judicial administration would be better served in this case if this court proceeded to render a full decision on subject matter jurisdiction and (if jurisdiction is held to exist) the merits of the appeal. Moreover, based on the discussion above, we believe that this case falls within the “otherwise applicable exhaustion requirement” of National Farmers Union, which requires the federal courts, as a matter of comity, to stay their hands pending disposition of this appeal.[2]
For the reasons stated above, Appellant BN’s motion for a stay of proceedings is hereby DENIED.
[1] We also note that the railroad’s commercial activities on the Reservation, and the fact that this accident resulted in the deaths of three Tribal members, may serve to further distinguish this case from Strate’s analysis of the Montana exceptions, if such a further analysis proves necessary. See Strate, 117 S.Ct. at 1408 n.3 (no ruling on Tribal members’ claims); but, see Wilson v. Marchington, 127 F.3d 805, 815 (9th Cir. 1997) (injury of Tribal member on state highway does not satisfy second Montana exception).