STOCK WEST CORPORATION, an Oregon corporation, Plaintiff-Appellant, v. Michael TAYLOR, Defendant-Appellee.
No. 90-35201
United States Court of Appeals, Ninth Circuit
Argued and Submitted Oct. 1, 1990. Decided Aug. 20, 1991.
942 F.2d 655
We hold that the district court could permissibly clarify its original order pursuant to
In response, Appellees asked the court to clarify the intent of its original order and the court issued its clarifying order dismissing Appellants’ entire cause of action, with prejudice. From the clarifying order it is obvious the district court intended to dismiss both the state and federal claims and that its first order simply was inartfully drafted. We therefore hold that despite the filing of the notice of appeal, the district court could clarify the original order under
AFFIRMED.
Alan C. Stay, Office of the Reservation Atty., Nespelem, Wash., for defendant-appellee.
O‘SCANNLAIN, Circuit Judge:
We consider the limits of mandatory federal court deference to Indian tribal courts.
I
The tortuous history of this and related litigation graces the pages of numerous case reporting systems, including the Indian Law Reporter, the collected cases of the Interior Board of Indian Appeals, the Federal Supplement, and our own Federal Reporter. What follows is a synopsis.
A
On July 24, 1984, appellant Stock West Corporation entered into contracts with two tribal governmental corporations of the Confederated Tribes of the Colville Reservation (“Colville Tribes” or simply “Tribes“). Pursuant to the contracts, Stock West agreed to design and to supervise construction of a sawmill on the reservation and to manage the mill‘s operations and market its products. Appellee Michael Taylor is the Reservation Attorney for the Colville Tribes.
Under
In order to finance the sawmill venture, it was necessary for the tribal corporations to obtain a bank loan. Pursuant to the terms of a loan agreement, Taylor (as counsel for the tribal corporations, who were the borrowers) prepared a letter for an Oregon banking corporation, dated July 10, 1985, in which he opined that:
[n]o consent, approval or authorization of or registration, declaration or filing with any governmental or public body or authority is required to construct the Project or operate the Mill, or if required, such consent, approval, order or authorization has been obtained.
Included among the documents which Taylor reviewed, according to the opinion letter, was the BIA‘s December 7, 1984, determination that approval of the Stock West agreements was not required.
Meanwhile, construction of the sawmill, which began in 1984, continued apace. Stock West was contractually obliged to manage and supervise the sawmill‘s construction, and then to manage the completed sawmill as well as market its products. The mill was substantially completed by February 1986.
As is generally the rule in matters which come to this court‘s attention, the once-promising business relationship between the contracting parties soured. Recriminations festered. According to the tribes, Stock West did not live up to its end of the bargain. Inevitably, the disputes spilled over into the courts.
B
In July 1986, the Colville Tribes fired the first salvo, filing suit against Stock West in the tribal court. About one year later, the tribal court ruled that it possessed subject matter jurisdiction over the dispute and personal jurisdiction over Stock West. Confederated Tribes of the Colville Reservation v. Stock West, Inc., 14 Indian L.Rep. (Am. Indian Law. Training Program) 6025 (Colville Tribal Ct. Aug. 17, 1987).
On April 7, 1987, before the tribal court ruled on its own jurisdiction in the Colville Tribes’ suit against Stock West, Stock West filed an action against the Tribes in federal district court. Stock West sought to compel arbitration under the terms of the contracts and to enjoin the tribal court action. The district court dismissed the action, citing the principle of comity and recognizing the tribal court‘s concurrent jurisdiction. Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 14 Indian L.Rep. (Am. Indian Law. Training Program) 3097 (E.D.Wash. Aug. 5, 1987) (order of dismissal).
That decision was affirmed in a published opinion issued by this court on April 20, 1989. Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221 (9th Cir.1989) (”Stock West I“). As had the district court, we concluded that federal courts had diversity jurisdiction over the matter, see
C
Following the foregoing, somewhat bewildering array of litigation, Stock West filed the present lawsuit. On September 8, 1989, Stock West brought this action against Taylor for malpractice and misrepresentation arising out of the opinion letter which Taylor prepared for the bank. Stock West contends that the letter was a misrepresentation because it later turned out that BIA approval of the contracts was required, and because Taylor issued the letter while harboring the belief that BIA approval was in fact required. Although the letter was not directed to Stock West, Stock West contends that the purported misrepresentation is actionable by Stock West as an intended beneficiary of the letter.
The district court dismissed the action. Stock West Corp. v. Taylor, 737 F.Supp. 601 (D.Or.1990) (”Stock West II“). Taylor moved for dismissal pursuant to
Stock West appeals the entry of judgment dismissing its action. We have jurisdiction over this timely appeal under
II
We turn to the first reason given by the district court for dismissing the action: comity. The district court, having concluded that this matter arose on the reservation and was a concern of the Tribes, essentially considered itself bound to defer to the tribal courts. See Stock West II, 737 F.Supp. at 605. We examine when deference is due, and then consider whether this case falls within those categories for which deference is required.
A
Indian tribes enjoy continued, if somewhat clipped, recognition of sovereignty stemming from their status as the aboriginal people of this continent. See Native Village of Venetie I.R.A. Council v. Alaska, 918 F.2d 797, 805 (9th Cir.1990). “Indian tribes consistently have been recognized as ‘distinct, independent political communities’ qualified to exercise powers of self-government, not by virtue of any delegation of powers, but rather by reason of their original tribal sovereignty.” F. Cohen, Handbook of Federal Indian Law 232 (1982 ed.) (quoting Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832)); see, e.g., Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 478 (9th Cir.1985) (power to exclude persons from the reservation is permissible for self-government and territorial management).
The tribal courts play a vital role in tribal self-government. Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14-15 (1987). While tribal courts are not permitted to exert criminal jurisdiction over non-Indians, Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), or even non-member Indians, Duro v. Reina, 495 U.S. 676 (1990), they enjoy fairly broad powers in the civil context. See id. at 687-88. “Tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty,” and thus “[c]ivil jurisdiction over such activities presumptively lies in the tribal courts.” LaPlante, 480 U.S. at 18 (citations omitted); Wellman v. Chevron U.S.A., Inc., 815 F.2d 577, 578 (9th Cir.1987); see also FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311, 1314-15 (9th Cir.1990) (describing and applying test for determining when tribal court civil jurisdiction is appropriate over non-Indians engaging in on-reservation activities), cert. denied, U.S. -, 111 S.Ct. 1404 (1991); Sanders v. Robinson, 864 F.2d 630, 632-33 (9th Cir.1988) (considering whether tribal court may adjudicate divorce between a member and a non-Indian), cert. denied, 490 U.S. 1110 (1989).3
Because of the significance of the role of tribal courts in preserving sover-
Since the Supreme Court decided National Farmers Union and LaPlante, the reported cases have been virtually unanimous in expressing the exhaustion requirement in mandatory terms. See, e.g., Burlington N. R.R. v. Crow Tribal Council, 940 F.2d 1239, 1245-46 (9th Cir.1991); Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1078 n. 3 (9th Cir.1990); Sanders, 864 F.2d at 631 n. 1; Wellman, 815 F.2d at 578-79; A & A Concrete, Inc. v. White Mountain Apache Tribe, 781 F.2d 1411, 1417 (9th Cir.), cert. denied, 476 U.S. 1117 (1986); accord Brown v. Washoe Housing Auth., 835 F.2d 1327, 1328 (10th Cir.1988); Superior Oil Co. v. United States, 798 F.2d 1324, 1328-29 (10th Cir.1986); Tillett v. Hodel, 730 F.Supp. 381, 384 (W.D.Okla.1990).4 Each of these cases, however, involved a dispute which arose on a reservation and/or involved tribal governmental matters. Each case featured Indians as parties. In such circumstances, given the strong interest in tribal self-government and self-determination, it is not surprising that a federal court must defer to the tribal courts.
Notwithstanding the stringent language of National Farmers Union and LaPlante, and of the cases which have followed them, the exhaustion requirement cannot be absolute whenever tribal court jurisdiction is asserted. Where the civil action involves non-Indian parties, concerns incidents which occurred off of the reservation, and will not impact the tribe‘s authority, there is little reason to require that the tribal court have first crack at the case. A federal court‘s decision to defer to the tribal courts does not come without costs, because the party that chose to pursue its cause of action in federal court is deprived of an adjudication by the forum of choice unless the tribal court has no jurisdiction. See LaPlante, 480 U.S. at 19 (“proper deference to the tribal court system precludes relitigation of issues...resolved in the Tribal Courts“). Where the tribe has little or no interest in the matter, there is no justification for imposing this cost upon the litigant.
In Myrick v. Devils Lake Sioux Manufacturing Corporation, 718 F.Supp. 753 (D.N.D.1989), an Indian residing on a reservation brought suit for age and race discrimination against a corporation of which the tribe was the majority owner. After canvassing the Eighth Circuit cases which had invoked National Farmers Union and LaPlante to require exhaustion of tribal remedies, the court observed that in both Supreme Court cases, tribal jurisdiction was at issue because there were ongoing tribal court proceedings which a party had sought to avoid by filing a federal court action. 718 F.Supp. at 754-55. While the Eighth Circuit cases did not involve competing actions in different courts, they did involve tribal housing authorities as parties and contract disputes arising on the reservation. Id. Based upon these observations, the court distinguished the case before it:
Both of the Supreme Court cases and both of the court of appeals cases discussed above involved issues of particular application and importance to the tribes themselves. In [LaPlante] and National Farmers Union, the scope of
tribal court jurisdiction was at issue. In [the two appeals court cases], the defendants were agencies created by the tribes and the issues presented were primarily intra-tribal. Consequently, to advance the purpose of promoting tribal self-government and self-determination, the court held that the cases should be first heard in tribal court.
Id. at 755. Concluding that the case before it did not involve these issues, and predominantly presented issues of federal law, the court declined to dismiss the action. See also United States ex rel. Kishell v. Turtle Mountain Housing Auth., 816 F.2d 1273, 1276 (8th Cir.1987) (affirming district court‘s decision to dismiss, but looking to the facts of the case and noting that the case presented “a purely internal tribal controversy which the tribal court is uniquely situated to resolve“).
We agree with these cases to the extent that they countenance an examination of the circumstances of the action before a decision to defer is made. In many cases, as in Stock West I itself, the issue in dispute is truly a “reservation affair” or “arose on the reservation,” and thus the federal court has no option but to defer. Nonetheless, a federal court must examine the circumstances of the individual case in order to determine if deference is necessary, in light of the purposes of the exhaustion requirement. See, e.g., Burlington Northern v. Crow Tribe Council, 940 F.2d at 1245-46 (examining whether exhaustion must be mandatory by considering tribal self-government concerns, judicial efficiency, and the tribal court‘s expertise in interpreting novel areas of tribal law).
B
The district court in the case at hand deferred to the tribal court because, in its view, the dispute between Stock West and Taylor arose on the reservation and concerned tribal resources. The district court likened this case to the situation presented in Stock West‘s lawsuit against the Tribes. The district court found that
the subject matter of this action, an opinion letter drafted by the Colville Reservation Attorney on the Reservation and directed to a bank for the purpose of obtaining financing on behalf of tribal corporate entities, is directly related to the heart of tribal concerns over use and commercial realization of its economic base.... Plaintiff‘s claims are based on actions which took place on the Reservation involving the drafting of the opinion letter.
Stock West II, 737 F.Supp. at 604 (internal quotation omitted). According to the court, tribal court jurisdiction would lie where Taylor “drafted the opinion letter in his capacity as Reservation Attorney and...the subject matter of the letter involves tribal concerns,” and thus deference was necessary. Id. at 604-05.
We disagree with the conclusion that this action could be considered to “arise[] out of the reservation,” Stock West I, 873 F.2d at 1228, or to be a “reservation affair,” LaPlante, 480 U.S. at 16. None of the parties to this suit are Indians. Taylor, although Reservation Attorney, was offering his legal opinion to a non-Indian third party, and breached his duty, if at all, to a non-Indian third party. The (purportedly) tortious act, the misrepresentation, was made off the reservation, upon delivery of the document in Oregon.5
The cases which have found disputes to have “arisen” out of the reservation differ markedly from Stock West‘s action against Taylor. The natural comparison is with the earlier lawsuits between Stock West and the Colville Tribes, which arose in the same context as the present matter. In Stock West I, on one side of the dispute were the
In contrast to the situation presented in Stock West I, here we have a private dispute between non-Indian parties. The alleged misrepresentation was made off of the reservation, in an attempt to influence the decision-making of off-reservation businesses. Tribal resources are in no way at stake in this litigation; indeed, the Tribes have no direct interest in whether Taylor is or is not liable for making a misrepresentation to the bank and Stock West.6 While both suits share the sawmill contracts as a background, Stock West‘s action against Taylor does not implicate the performance of the contracts or any on-reservation activity.
A survey of the other cases which have involved reservation affairs demonstrates that this dispute differs in significant particulars. For example, in Wellman, an Indian brought a breach of contract suit against a non-Indian corporation (Chevron U.S.A.) which held an oil and gas lease for drilling operations on the reservation. Wellman sued after Chevron terminated its contract with Wellman under which Wellman would build an access road to an exploratory well on the reservation. 815 F.2d at 578. As in Stock West I, the suit directly implicated tribal interests on the reservation, both because an Indian was a party (individually and on behalf of his on-reservation business) and because the outcome of the suit would impact economic activity on the reservation by determining whether the reservation road would be built, who would build it, and the force of the oil and gas lease‘s stated preference for Indian contractors. See id.; see also Burlington Northern v. Crow Tribe Council, 940 F.2d at 1245-46 (railroad‘s challenge to tribal ordinance establishing regulatory commission to oversee railroad activities on the reservation); A & A Concrete, 781 F.2d at 1416 (multi-count action against tribe and individual Indians arose out of contract dispute for on-reservation construction project and subsequent tribal court judgment and execution of judgment).
In the Supreme Court decisions in this area, National Farmers Union and LaPlante, insurance companies sued Indians (and in one case, the tribe itself) in federal court following the institution of tribal court lawsuits against the insurers. In both cases, the underlying dispute was an automobile accident on the reservation, and the liability of the contesting insurance companies or their insureds for the injuries (and, in LaPlante, for the insurer‘s own conduct in adjusting the claim). See LaPlante, 480 U.S. at 11-13; National Farmers Union, 471 U.S. at 847-49. Such disputes clearly “arise” on the reservation, given the situs of the harm on the reservation and the presence of Indian parties.
We are not unmindful of the possibility that the Colville Tribes may have an indirect interest in the outcome of this action, because of Taylor‘s status as Reservation Attorney and the genesis of the action in the Tribes’ business relations with Stock West and outside financiers. To hold this sufficient to term the action “arising” out of the reservation, however, would be to
We conclude that a non-Indian‘s breach of an independent duty to another non-Indian, occurring off of the reservation, falls without the nebulous confines of a “reservation affair” and does not arise on the reservation. In such circumstances, we fail to see the necessity for dismissal of the federal court action. Instead, we reaffirm the principle, stated in Wellman, that in non-Indian matters, “non-Indians can go to district court directly.” 815 F.2d at 579.
The district court based its decision to defer not on a reasoned exercise of its discretion, but on its misimpression that exhaustion of tribal remedies was mandatory in the face of possible tribal court jurisdiction. See Stock West II, 737 F.Supp. at 605 (“principles of comity require me to decline to exercise jurisdiction“) (emphasis added). While we are not simply to substitute our judgment for that of the lower court when reviewing for abuse of discretion, United States v. BNS Inc., 858 F.2d 456, 464 (9th Cir.1988), here the district court has misinterpreted the applicable law. Our review of the record does not support dismissal. There is no pending tribal court proceeding, the principal issues presented are of state or federal law, and the tribal court possesses no special expertise in the subject matter. See Burlington N. R.R. Co. v. Blackfeet Tribe, 924 F.2d 899, 901 n. 2 (9th Cir.1991).7 Comity does not suffice as a basis for affirmance under these facts.
C
In reaching the conclusion that deference to the tribal courts was not required in this instance, we are not placing the federal courts “in direct competition with the tribal courts,” LaPlante, 480 U.S. at 16. The tribal courts have superior expertise in interpreting their own tribal law. See National Farmers Union, 471 U.S. at 855-56; Burlington Northern v. Crow Tribe Council, 940 F.2d at 1246-47. In addressing the question before this court, however, we have not resorted to an examination of tribal law; for example, we have not considered the possible reach of the Colville Tribes’ jurisdictional statute, Colville Law & Order Code § 1.3.01. We render no opinion as to the scope of the Colville Tribes’ tribal court jurisdiction, or whether the dispute between Stock West and Taylor might fall within the parameters of that jurisdiction.8
III
The district court also found that Taylor was entitled to dismissal because he is immune from suit as an official of the Colville Tribes. If borne out, the assertion of official immunity, as a corollary to the Tribes’ sovereign immunity, would be sufficient to require dismissal of the action.
“Suits against Indian tribes are ... barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation.” Oklahoma Tax Comm‘n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991) (citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978)). “This tribal immunity extends to individual tribal officials acting in their representative capacity and within the scope of their authority.” Hardin, 779 F.2d at 479 (citing United States v. Oregon, 657 F.2d 1009, 1012 n. 8 (9th Cir.1981)).
The district court concluded that Taylor‘s alleged tortious conduct did fall within the Tribes’ immunity umbrella. Colville Law & Order Code § 1.1.06 provides that the Tribes’ “officers and employees” are immune from suit “for any liability arising from the performance of their official duties.” The court regarded Taylor‘s position, senior attorney in the Office of the Reservation Attorney and chief legal official for the Colville Tribes, as rendering Taylor an officer of the Tribes. Stock West II, 737 F.Supp. at 605. The court also concluded that the drafting of the opinion letter was an act performed within the scope of Taylor‘s official authority. Id.
We need not determine whether Taylor‘s position as Reservation Attorney qualifies him for “tribal official” immunity in the usual performance of his duties, because we conclude that the district court was premature in granting immunity status in this case. Taylor‘s argument that his position with the Colville Tribes is analogous to a state attorney general has at least surface appeal. However, even conceding the analogy, we cannot say on the record before us whether Taylor was acting within his representative capacity, and whether he was within the scope of his delegated authority. See Hardin, 779 F.2d at 479-80; see also Burlington Northern v. Blackfeet Tribe, 924 F.2d at 902.
Taylor principally relies on three cases to support the claim of official immunity; none is persuasive. In Davis v. Littell, 398 F.2d 83 (9th Cir.1968), cert. denied, 393 U.S. 1018 (1969), a tribe‘s general counsel was immunized from suit for purportedly slanderous remarks made to the tribal council concerning the abilities of counsel‘s assistant. The counsel in this case plainly was acting in his representative capacity and within the scope of his authority. The counsel was advising the tribal council, which was his job, about the merits (or lack thereof) of a council hiree and subordinate, which was also his business. See id. at 85. Without immunity, the counsel would have been hindered in performing his functions for the tribal government.
In Davis, Hardin, and Puckett, claims were asserted against tribal officials for actions clearly tied to their roles in the internal governance of the tribe. None of these cases even involved dealings with (off-reservation) third parties on behalf of the tribe, much less dealings with a non-Indian third party as a member of the state bar and representative of a borrower.
It is clear that tribe members, including officials, are amenable to suit if the subject of the suit is not related to the officials’ performance of official duties. In Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165 (1977), the Supreme Court permitted a state court “to adjudicate the rights of the individual defendants” relating to fishing rights. Id. at 173. Those defendants, including tribal officials, see id. at 168 & n. 3, had been acting as fishermen rather than tribe governmental officers when engaging in the complained-of activities.
Stock West‘s allegation in this case is that Taylor was acting as an attorney, rather than as a tribal official, and owed duties to the bar and to interested third parties to issue a letter reflecting his best legal judgment. This presents a closer question than Puyallup Tribe, because it appears that Taylor‘s issuance of the letter was a portion of his “job responsibilities,” at least as broadly construed. However, it is not clear that Taylor‘s role as counsel to the tribal corporations party to the sawmill contracts is necessarily a function of Taylor‘s role as a possible “tribal official.” Cf. Evans v. McKay, 869 F.2d 1341, 1348 n. 9 (9th Cir.1989) (tribal officials are not cloaked in immunity from federal civil rights suit to the extent they acted in concert with police officers, who in turn were acting under color of state law).
The district court did not permit Stock West to pursue detailed discovery into the nature of Taylor‘s duties, whether those duties qualify him as a tribal official, and any connection between Taylor‘s “official” duties and the opinion letter. There is also the possibility that Taylor would not be deserving of immunity under tribal law if the delivery of a legal opinion to which he did not subscribe could be considered “egregious.” See Stone v. Somday, 10 Indian L.Rep. (Am. Indian Law. Training Program) 6040, 6041 (Colville Tribal Ct. 1983). We think that Stock West is entitled to explore those issues before summary judgment on immunity is appropriate.9
IV
Although we are not persuaded by either of the district court‘s reasons for dismissal of Stock West‘s action, we do not end our inquiry here. It is a familiar tenet of our appellate jurisdiction that “[w]e may affirm the district court on any ground supported by the record, even if the district
A
Taylor argues that Stock West‘s complaint fails to state a claim for legal malpractice under Oregon or Washington law.10 See
Taylor argues, however, that Stock West‘s allegations are deficient because it has not alleged that it was Taylor‘s client, or that it was a party to the loan transaction, or even that it was an addressee of the opinion letter. Essentially, Taylor‘s argument is that he had no duty to Stock West.
A few scattered authorities from Oregon and Washington courts have recognized that a malpractice plaintiff need not be a client of the attorney, so long as the plaintiff is an intended beneficiary of the attorney‘s undertaking. See, e.g., Hale v. Groce, 304 Or. 281, 284-87, 744 P.2d 1289, 1290-92 (1987) (will-drafting context); Lee v. Nash, 65 Or.App. 538, 543-45, 671 P.2d 703, 706-07 (1983) (en banc) (unauthorized disclosures by husband‘s bankruptcy attorney actionable by wife), review denied, 296 Or. 253, 675 P.2d 491 (1984); Stangland, 109 Wash.2d at 679-83 (will-drafting context).11 Stock West argues that it was the intended beneficiary of Taylor‘s opinion letter, albeit not the letter‘s named addressee. Although the issue is one of first impression for Oregon and Washington, in other jurisdictions, attorneys have been held liable to non-clients for their negligent issuance of opinion letters. See 1 R. Mallen & J. Smith, Legal Malpractice §§ 7.10-.11, at 381, 389 (3d ed. 1989); see also Annotation, What Constitutes Negligence Sufficient to Render Attorney Liable to Person Other Than Immediate Client, 61 A.L.R.4th 464, § 39 (1988 & Supp.1990). Without resolving the factual question of whether Stock West was an intended beneficiary, we conclude that the allegation of a duty is sufficient to survive
Taylor also contends that, under the established facts of this case, Stock West will not be able to establish either its malpractice or misrepresentation claims as a matter of law. See
B
We briefly address the other arguments raised by Taylor as alternate grounds to affirm the entry of judgment against Stock West. Taylor attempts to invoke the Tribes’ sovereign immunity in two different ways, and also asserts other defects in the district court‘s jurisdiction.
First, Taylor characterizes this suit as a veiled attempt to affect the Tribes’ tribal court litigation against Stock West. The record does not support the contention unambiguously, and we are in no position to evaluate the conflicting evidence offered by Taylor and Stock West‘s counsel.
Second, Taylor asserts that the Colville Tribes and the tribal corporations for whom he wrote the opinion letter are indispensable parties. See
Third, Taylor challenges the court‘s diversity jurisdiction, arguing that he is a resident of Washington state, and that Stock West‘s principal place of business was in Washington. See Industrial Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1094 (9th Cir.1990) (principal place of business is state in which most of corporation‘s business activities take place). Stock West‘s citizenship is at best a disputed issue, which the district court expressly refused to resolve at this time. Neither will we.12
Finally, Taylor asserts that there was no basis for the United States District Court for the District of Oregon‘s exertion of personal jurisdiction over him. Oregon‘s long-arm statute,
V
We conclude that the district court erred in dismissing this case for failure to exhaust tribal court remedies or based on Taylor‘s purported immunity from suit. We also reject Taylor‘s additional grounds for affirming the entry of judgment against Stock West, although we recognize that further proceedings may establish the validity of some of Taylor‘s present contentions. Obviously, we do not attempt to predict whether future development of the record will support or undermine Taylor‘s assertions.
REVERSED and REMANDED.
FERNANDEZ, Circuit Judge, dissenting:
I will not extend the reports by writing at length. Most simply put, I think that
The majority‘s dual holding is that this is not a case for deferral to tribal court jurisdiction, nor is it a clear case of tribal officer immunity.1 The result is that Stock West is allowed to open an entirely new front in its dispute with the tribe. It is allowed to sue a tribal officer in district court. However, Stock West‘s action is based upon the flimsiest of complaints about that officer‘s behavior toward itself.2
Surely that does undermine the tribe‘s ability to conduct its own affairs and to adjudicate its own disputes. Ultimately, as we recognize in so many other areas, governments are run by people. When we allow an attack upon those people individually we attack the operation of the government itself.3 What we are doing here is allowing Stock West to drag its dispute with the tribe through the back door of the federal courthouse. The parties know that, the tribe knows it, the district judge knows it, we know it. So does the law. Therefore, I respectfully dissent.