United States Court of Appeals
May 27, 2011
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
CROWE & DUNLEVY, P.C.,
v. No. 09-5071
GREGORY R. STIDHAM,
Appeal from the United States District Court for the Northern District of Oklahoma
(D.C. No. 4:09-CV-00095-TCK-PJC)
Michael A. Simpson (Marthanda J. Beckworth with him on the briefs) of
Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., Tulsa, Oklahoma,
Clyde A. Muchmore (James L. Kincaid and Susan E. Huntsman on the brief) of
Crowe & Dunlevy, P.C., Tulsa, Oklahoma, for Plaintiff-Appellee. Before BRISCOE, Chief Judge, SEYMOUR and LUCERO, Circuit Judges. SEYMOUR, Circuit Judge.
Judge Gregory R. Stidham of the Muscogee (Creek) Nation District Court
appeals the district court's order granting preliminary injunctive relief to Crowe
& Dunlevy ("Crowe") and denying Judge Stidham's motion to dismiss. Crowe &
Dunlevy, P.C. v. Stidham, 609 F. Supp. 2d 1211
, 1227 (N.D. Okla. 2009).
Because the district court correctly denied Judge Stidham's motion to dismiss and
did not abuse its discretion in granting the preliminary injunction, we affirm.
The pertinent facts are largely undisputed. Michael McBride, now a
partner at Crowe, has long served as legal counsel to the Thlopthlocco Tribal
Town (the "Thlopthlocco"). The Thlopthlocco is a federally recognized Indian
tribe with its own Constitution and bylaws. It is also a tribal town of the
Muscogee (Creek) Nation, another federally recognized Indian tribe. The
Thlopthlocco reside on land held in trust for them by the United States, which is
located within the historic boundaries of the Creek Nation. Pursuant to the
Thlopthlocco Constitution, the governing body of the Thlopthlocco is its Business
Committee, which has the power to transact business and to act and speak on
behalf of the tribe.
The present case stems from Crowe's representation of the Thlopthlocco in
the Muscogee (Creek) Nation District Court ("Muscogee District Court") in 2007,
in a case alleging that Nathan Anderson, then a member of the Tholoptholocco
[End Page 2]
Business Committee, had attempted a coup d' etat, declared himself the only valid
leader, and purported to appoint a new government. The Thlopthlocco asserted
that Anderson and his allies (collectively, the "Anderson defendants") had
interfered with the Thlopthlocco's business interests by, among other things,
accessing the Thlopthlocco's bank accounts, issuing regulations on tribal
letterhead, and meddling with the Thlopthlocco's contractual relationships with
various third-party service providers. The Thlopthlocco sought both declaratory
and injunctive relief.
The Thlopthlocco does not have an established judicial system of its own.
It has previously waived its sovereign immunity and consented to jurisdiction in
the Muscogee (Creek) Nation tribal courts for the purpose of specific lawsuits
directed at dual Thlopthlocco-Muscogee citizens. 1 Before filing its complaint in
Muscogee District Court in this case, the Thlopthlocco granted a narrow waiver of
its sovereign immunity, stating:
[T]he Thlopthlocco Tribal Business Committee does hereby
waive its immunity on a limited basis only for the purpose of
adjudicating this dispute only, only claims brought by the Plaintiff,
Thlopthlocco Tribal Town, and only for injunctive and declaratory
relief. This waiver of immunity shall not include elections disputes.
Aplt. Supp. App., vol. I, at 412.
According to the Muscogee District Court in Thlopthlocco Tribal Town v.
Tomah, 8 Okla. Trib. 451, 2004 WL 5744828, at *1 (Muscogee (Cr.) D. Ct. 2004),
"prior to the filing of [that] lawsuit, the Thlopthlocco [had] never authorized the
Muscogee (Creek) Nation to exercise jurisdiction over Thlopthlocco matters."
[End Page 3]
In response to the Thlopthlocco's complaint, Judge Patrick Moore of the
Muscogee District Court temporarily enjoined the Anderson defendants from
activities listed in the complaint, declared any official actions taken by them to be
null and void, and set an evidentiary hearing. After the hearing, the court lifted
the restraining order and dismissed the complaint, holding that the Creek Nation
tribal court did not have jurisdiction to hear the dispute. On appeal, the
Muscogee (Creek) Nation Supreme Court ("Muscogee Supreme Court") reversed
that decision and ordered that the injunction remain in effect during the pendency
of the tribal court litigation. In a subsequently issued opinion, the court held:
The relationship between Thlopthlocco and the federal
government is different from the relationship between Thlopthlocco
and the Muscogee (Creek) Nation. Under federal law, Thlopthlocco
is a reorganized Indian tribe; under tribal law, Thlopthlocco is a
Muscogee (Creek) tribal town. See Thlopthlocco [Tribal Town v.
Tomah, 8 Okla. Trib. 451, 2004 WL 5744828]. The Tribal Town
Constitution affects neither the status of tribal town members as
citizens of the Muscogee (Creek) Nation nor the relationship of the
Tribal Town to the Muscogee Nation which remains analogous to a
city/state government or state/federal government relationship.
The members of Thlopthlocco Tribal Town, as citizens of the
Muscogee Nation, have requested relief in the courts of the
Muscogee (Creek) Nation. Neither the Town nor its members will be
abandoned by the Nation's courts.
Aplt. Supp. App., vol. 4, at 01707-08
Thereafter, the Anderson defendants filed an answer claiming to be the true
representatives of the Thlopthlocco. They subsequently filed a cross-claim
against nine Thlopthlocco tribal members, alleging the nine cross-claim
defendants had violated the Thlopthlocco Constitution by purporting to
[End Page 4]
unlawfully adopt six individuals as members of the tribe and permitting them to
vote in the January 27, 2007 election. They also alleged that certain of the cross-
claim defendants had violated the civil rights of some of the Anderson defendants
by prohibiting them from voting in the last election, and the civil rights of
defendant Anderson by attempting to strip him of his authority as Town King.
For relief, the Anderson defendants asked that the January 27 election be declared
void and that the cross-claim defendants be enjoined from interfering with the
Thlopthlocco Town government as allegedly constituted by the Anderson
defendants. In a trial brief filed shortly thereafter, however, the Anderson
defendants requested a new election to be overseen by the Creek Nation court.
The Thlopthlocco and the nine cross-claim defendants filed a motion to
dismiss the cross-claims for lack of subject matter jurisdiction. Before further
proceedings, the Anderson defendants filed a motion requesting that the
Thlopthlocco be ordered to pay their legal fees from the Thlopthlocco Treasury.
The Anderson defendants argued they were entitled to fees from the tribe's
treasury because of the possibility that, at the end of the litigation, they might be
found to represent the legitimate government of the Thlopthlocco. They asserted
there was precedent for the payment of both sides' attorneys fees when there is a
dispute among members of a tribe. Judge Stidham granted the motion. 2
Judge Patrick Moore had in the meantime recused and Judge Stidham was
appointed by the Muscogee Supreme Court to replace him.
[End Page 5]
The Thlopthlocco appealed Judge Stidham's order to the Muscogee
Supreme Court, which, on January 16, 2009, reversed it as premature. See id.,
vol. IV, doc. 96 ("January 16 Order"). The court reasoned that until the litigation
was resolved, no one could know whether anyone among the litigants had the
authority to spend Thlopthlocco funds. See id. In addition to denying the
Anderson defendants' request for attorneys' fees, the Muscogee Supreme Court
sue sponte ordered that "any attorneys' fees paid from the Thlopthlocco Treasury
to the Plaintiff's counsel be returned and deposited into the Treasury." Id.
Crowe was not named in the January 16 Order. There is no dispute, however, that
Crowe had been paid by the Thlopthlocco for work it performed as plaintiff's
counsel during the tribal court litigation, pursuant to an engagement letter and
legal services contract.
The Thlopthlocco petitioned for rehearing of the January 16 Order. It
argued, among other things, that the provision of the January 16 Order requiring
the refund of Crowe's fees exceeded the limited waiver of sovereign immunity the
Thlopthlocco had conferred upon the Muscogee (Creek) Nation courts, and that
the Muscogee Supreme Court lacked jurisdiction to interfere with the
Thlopthlocco's contractual relationship with Crowe or to divest the Thlopthlocco
of its authority to pay its own legal counsel pursuant to that contract. Reading the
January 16 Order as a directive to the Thlopthlocco, rather than to Crowe, the
Thlopthlocco observed that "additional jurisdictional and due process concerns"
[End Page 6]
would have arisen if the January 16 Order had been directed to Crowe, a non-
party. Id., vol. IX, doc. 154, at 3368 n.6. The Muscogee Supreme Court
summarily denied the petition.
On February 5, 2009, while the Thlopthlocco's petition for rehearing was
still pending, Judge Stidham issued an order purporting to effectuate the
Muscogee Supreme Court's January 16 Order. Unlike the Muscogee Supreme
Court, Judge Stidham directed his order to Crowe, ordering the firm "to return
attorneys' fees paid from the Thlopthlocco Treasury with proof of repayment
furnished to this court on or before February 20, 2009." Id., vol. V, doc. 101, at
1844 ("February 5 Order").
Instead of complying, Crowe filed this action seeking to enjoin Judge
Stidham, in his official capacity as tribal judge, from ordering the return of
Crowe's legal fees. In addition, Crowe sought an order declaring that, among
other things, the Muscogee (Creek) Nation courts lacked jurisdiction to order
Crowe, as a non-party and non-Indian, to return fees it had earned for services
rendered to the Thlopthlocco. Simultaneously, Crowe notified the Muscogee
District Court and the Muscogee Supreme Court that it was withdrawing from its
representation of the Thlopthlocco due to the conflict of interest resulting from
Judge Stidham's order that Crowe return its fees to the tribe. 3
Represented by new counsel, the Thlopthlocco then moved to dismiss its
complaint against the Anderson defendants. In their response to this motion, the
[End Page 7]
When no funds were returned, Judge Stidham ordered Crowe attorneys to
"appear and show cause why they should not be held in indirect contempt of
court" for failing to comply with his February 5 Order. Id., vol. V, doc. 111, at
2016. Apparently in response to the looming contempt proceedings, Crowe filed
a motion for a preliminary injunction in the present action, effectively renewing
its request that Judge Stidham be enjoined from "enforcing his February 5 Order
or otherwise attempting to enforce the January 16 Order as it relates to Crowe,
until the pending litigation is resolved." Aplt. App., doc. 3, at 22. In response,
Judge Stidham moved to dismiss the complaint, asserting lack of subject matter
jurisdiction, failure to join indispensable parties, and improper venue. 4
The district court denied Judge Stidham's motion to dismiss and granted
Crowe's request for a preliminary injunction. The injunction "enjoin[ed] Judge
Anderson defendants stated they had no objection to the tribe dismissing its
action against them but asserted their cross-claim against the nine individuals still
needed to be considered. The tribe and the cross-claim defendants contended, to
the contrary, that the Muscogee District Court does not have subject matter
jurisdiction to hear the cross-claim because it is, in effect, a suit against the
Thlopthlocco for which the tribe has not waived sovereign immunity. The
Anderson defendants then asserted that their cross-claims against the individual
defendants in their official capacity and prospective injunctive relief is therefore
authorized under the Ex Parte Young exception to sovereign immunity because
the cross-claim defendants acted outside the scope of their lawful authority. See
Ex Parte Young, 209 U.S. 123
, 159-60 (1908). The court held in favor of the
Anderson defendants and, insofar as we can ascertain, the issue is still pending
before the Muscogee Supreme Court on interlocutory appeal.
The show-cause proceeding in tribal court appears to have been held in
abeyance at least until resolution of the instant appeal.
[End Page 8]
Stidham from enforcing the February 5 Order or attempting to enforce the January
16 Order as it relates to Crowe during the pendency of the litigation." Crowe &
Dunlevy, P.C., 609 F. Supp. 2d at 1227. 5 This appeal followed.
On appeal, Judge Stidham challenges the district court's denial of his
motion to dismiss and its decision to preliminarily enjoin him. He contends the
case should have been dismissed because he is entitled to sovereign and judicial
immunity, and because the Muscogee (Creek) Nation judiciary ("Muscogee
Judiciary") is an indispensable party which cannot be joined due to its sovereign
immunity. Alternatively, he asserts that Crowe failed to make the requisite
showing of irreparable harm to support injunctive relief.
We consider first the scope of our interlocutory jurisdiction and the related
question of whether it was appropriate for the district court to exercise
jurisdiction before requiring Crowe to first exhaust its claims in tribal court.
Although our jurisdiction normally extends only to appeals from "final
decisions" of district courts, see 28 U.S.C. § 1291, there are exceptions to the
The district court did not decide the merits of Crowe's request for
declaratory relief, finding only that the likelihood of success on the merits of that
claim was sufficient for purposes of issuing the preliminary injunction. Crowe &
Dunlevy, P.C., 609 F. Supp. 2d at 1223 n.7, 1224-27.
[End Page 9]
final judgment rule. A statutory exception permits immediate appeal of certain
specified "interlocutory decisions." 28 U.S.C. § 1292. Other types of orders that
do not finally resolve a case are appealable under the "collateral order" doctrine
set forth by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541
(1949). See Mohawk Indus., Inc. v. Carpenter, 130 S.Ct. 599, 605
(2009) (discussing doctrine); Woodruff v. Covington, 389 F.3d 1117
(10th Cir. 2004) (same). Still other orders may be reviewed under the doctrine of
pendent appellate jurisdiction. See Swint v. Chambers Cnty. Comm'n, 514 U.S. 35
, 43-51 (1995) (discussing doctrine); Timpanogos Tribe v. Conway, 286 F.3d 1195
, 1200 (10th Cir. 2002) (same); United Transp. Union Local 1745 v. City of
Albuquerque, 178 F.3d 1109
, 1114 (10th Cir. 1999) (observing that the exercise
of our pendent appellate jurisdiction is discretionary).
Orders granting or denying preliminary injunctions are among the types of
interlocutory orders that are immediately appealable under 28 U.S.C. § 1292. We
thus have jurisdiction pursuant to § 1292(a)(1) to review the district court's grant
of Crowe's request for a preliminary injunction. See Chamber of Commerce of
U.S. v. Edmondson, 594 F.3d 742
, 750 (10th Cir. 2010).
While orders denying motions to dismiss typically are not immediately
appealable to this court, see, e.g., Timpanogos Tribe, 286 F.3d at 1201 n.2, it is
undisputed that we have interlocutory jurisdiction under the collateral order
doctrine to review the district court's denial of Judge Stidham's motion to dismiss
[End Page 10]
on grounds of sovereign and judicial immunity. See Breakthrough Mgmt. Group,
Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173
, 1177 n.1 (10th Cir.
2010) (denial of tribal sovereign immunity); Opala v. Watt, 454 F.3d 1154
(10th Cir. 2006) (denial of state sovereign immunity); cf. Valdez v. City & Cnty.
of Denver, 878 F.2d 1285
, 1287 (10th Cir. 1989) (denial of quasi-judicial
Crowe contends, however, that we lack jurisdiction to review the district
court's determination that the Muscogee Judiciary is not a "required" party under
Rule 19. See Fed. R. Civ. P. 19(a) (required joinder); Fed. R. Civ. P. 12(b)(7)
(permitting motion to dismiss for failure to join indispensable party pursuant to
Rule 19). Crowe asserts the district court's Rule 19 ruling does not fall within
the scope of the collateral order doctrine or satisfy the requirements for pendent
appellate jurisdiction. Judge Stidham counters that we should exercise pendent
appellate jurisdiction over this issue.
As an initial matter, we agree the collateral order doctrine does not justify
interlocutory review of the district court's Rule 19 determination. To qualify for
review under that doctrine, a decision must be "effectively unreviewable on
appeal from the final judgement." Mohawk Indus., Inc., 130 S.Ct at 601 (internal
quotation marks omitted); accord Yousef v. Reno, 254 F.3d 1214
, 1217-18 (10th
Cir. 2001). The district court's Rule 19 determination does not meet this
condition. Should Judge Stidham suffer an adverse ruling on the merits, we could
[End Page 11]
review the district court's rejection of his Rule 19 claim in an appeal from that
judgment. See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102
, 106 (1968) (considering Rule 19 determination on appeal from final
judgment); see also MasterCard Int'l Inc. v. Visa Int'l Serv. Assoc., 471 F.3d 377
383-84 (2d Cir. 2006) (holding Rule 19 Order is not appealable under Cohen).
Because the district court's Rule 19 ruling may be effectively reviewed after final
judgment, we lack jurisdiction to consider it under the Cohen doctrine.
The Supreme Court has suggested that taking pendent appellate jurisdiction
may be appropriate where a district court's decision on a pendent claim was
"inextricably intertwined" with the district court's decision on a non-pendent
claim, or "where [appellate] review of the former [is] necessary to ensure
meaningful review of the latter." Swint, 514 U.S. at 51. We have interpreted
Swint to mean that the exercise of our pendent appellate jurisdiction is only
appropriate when "the otherwise nonappealable decision is inextricably
intertwined with the appealable decision, or where review of the nonappealable
decision is necessary to ensure meaningful review of the appealable one." Tarrant
Reg'l Water Dist. v. Sevenoaks, 545 F.3d 906
, 915 (10th Cir. 2008) (quoting
Timpanogos Tribe, 286 F.3d at 1200) (internal quotation marks omitted). We
conclude that neither condition is satisfied here.
A pendent claim may be considered "inextricably intertwined" only if it is
"coterminous with, or subsumed in, the claim before the court on interlocutory
[End Page 12]
appealâ€"that is, when the appellate resolution of the collateral appeal necessarily
resolves the pendent claim as well." Moore v. City of Wynnewood, 57 F.3d 924
930 (10th Cir. 1995); accord Breakthrough Mgmt. Group, Inc., 629 F.3d at 1196-
97 (applying test). The preliminary injunction issue in this case turns on whether
Crowe established it would suffer irreparable harm absent an injunction against
Judge Stidham. We can undertake a meaningful analysis of that issue, along with
the immunity issues, without reaching or resolving the Rule 19 claim, which turns
on whether Crowe is capable of obtaining complete relief without an injunction
against the entire Muscogee Judiciary. 6 See Fed. R. Civ. P. 19(a)(1)(A). In our
view, the Rule 19 issue is not sufficiently connected with the other issues
properly before us to justify the exercise of pendent jurisdiction.
In urging the contrary result, Judge Stidham appears to argue we need to
decide whether the Muscogee Judiciary is an indispensable party in order to
ensure we have jurisdiction over the present appeal. We disagree. "The issue of
indispensability under Rule 19 is not a jurisdictional question." Thunder Basin
Coal Co. v. Sw. Pub. Serv. Co., 104 F.3d 1205
, 1211 n.4 (10th Cir. 1997). Even
assuming for the sake of argument that the Muscogee Judiciary is indispensable,
its absence would not render the district court or this court without subject matter
In a footnote, Judge Stidham implies that the Thlopthlocco as well as the
Anderson defendants may also be indispensable parties. He does not make any
reasoned argument to support that position, however, so we do not consider it.
Murrell v. Shalala, 43 F.3d 1388
, 1390 n.2 (10th Cir. 1994).
[End Page 13]
jurisdiction to proceed. See Advisory Committee Notes to 1966 Amendments to
Fed. R. Civ. P. 19 (explaining that Rule 19 was altered to alleviate the "familiar
confusion" that "the absence from the lawsuit of a person who was
â€˜indispensable' or â€˜who ought to be a party' itself deprived the court of the power
to adjudicate as between parties already joined") (alterations omitted).
The tribal exhaustion rule provides that, absent exceptional circumstances,
federal courts typically "should abstain from hearing cases that challenge tribal
court jurisdiction until tribal court remedies, including tribal appellate review, are
exhausted." Bank of Okla. v. Muscogee (Creek) Nation, 972 F.2d 1166
(10th Cir. 1992); see also Iowa Mut. Ins. Co v. LaPlante, 480 U.S. 9
, 17 (1987);
Nat'l Farmers Union Ins. Co. v. Crowe Tribe of Indians, 471 U.S. 845
(1985). 7 The rule is based on Congress's "strong interest in promoting tribal
sovereignty, including the development of tribal courts." Smith v. Moffett, 947 F.2d 442
, 444 (10th Cir. 1991). Comity considerations inherent in federal-tribal
litigation compel us to assess whether we must abate this federal action in order
to permit Crowe to exhaust its jurisdictional claims in the Muscogee (Creek)
Nation tribal and appellate courts. See id. at 445; see also United States v.
The exhaustion issue was not squarely raised below or on appeal until we
raised it at oral argument. The parties had an adequate opportunity to address the
exhaustion issue during oral argument and in subsequent submissions pursuant to
Federal Rule of Appellate Procedure Rule 28(j).
[End Page 14]
Tsosie, 92 F.3d 1037
, 1041 (10th Cir. 1996).
While conceding that the determination of whether the tribal court has
subject matter jurisdiction over non-Indians in civil cases often "should be
conducted in the first instance in the Tribal Court itself," Nat'l Farmers Union
Ins. Co., 471 U.S. at 856, Crowe appears to contend that the Muscogee Supreme
Court, in fact, made such a determination when it summarily denied the
Thlopthlocco's petition to rehear the January 16 Order. We are not persuaded
that is necessarily so. As described above, the Thlopthlocco's primary argument
in its petition for rehearing was that the Muscogee (Creek) Nation courts lacked
jurisdiction to require the Thlopthlocco to obtain and return fees paid to Crowe.
While the Thlopthlocco asserted in a footnote that the tribal courts also lacked
jurisdiction over Crowe, it is not possible to determine from the summary order
whether the Muscogee Supreme Court rejected that alternative jurisdictional
argument in denying the Thlopthlocco's petition. On the contrary, the court may
well have determined it had jurisdiction to enter the January 16 Order as to the
Thlopthlocco, without considering the related question of whether it had
jurisdiction over Crowe. Because summary dispositions are "decisions on the
merits" only as to the "precise issues presented and necessarily decided by those
actions," Metromedia, Inc. v. City of San Diego, 453 U.S. 490
, 499 (1981)
(emphasis added) (internal quotation marks omitted), we simply cannot conclude
with certainty that the Muscogee Supreme Court actually determined tribal
[End Page 15]
jurisdiction was proper as to Crowe.
Crowe's reliance on Enlow v. Moore, 134 F.3d 993
, 995-96 (10th Cir.
1998), does not persuade us otherwise. In Enlow, we held that tribal remedies
were sufficiently exhausted when the Muscogee (Creek) Nation Supreme Court
held it had adjudicatory jurisdiction over a boundary dispute via-a-vis a non-
Indian landowner, who was a party in the underlying tribal litigation. In that
case, unlike the present one, the Muscogee Supreme Court not only had the
opportunity to review the landowner's jurisdictional claim, but also clearly
exercised that opportunity by squarely holding that tribal jurisdiction was proper
over the dispute and the non-Indian party. Enlow does not address whether the
tribal exhaustion rule may be satisfied where, as here, the tribal court had an
opportunity to pass on its jurisdiction but failed expressly to do so. Nor do we
address that issue today because, as explained below, we conclude that Crowe
was not required to exhaust its jurisdictional claim in tribal court due to the
exceptional circumstances of this case.
As a prudential rule based on comity, the exhaustion rule is not without
exception. Relevant here, exhaustion is not required if it is "clear that the tribal
court lacks jurisdiction," such that "the exhaustion requirement would serve no
purpose other than delay." Burrell v. Armijo, 456 F.3d 1159
, 1168 (10th Cir.
2006) (internal quotation marks omitted) (quoting Nevada v. Hicks, 533 U.S. 353
369 (2001)). Crowe was not a party in the tribal court action and is not an Indian
[End Page 16]
entity. There is a presumption against tribal civil jurisdiction over non-Indians
under Montana v. United States, 450 U.S. 544
, 564-65 (1981), and its progeny.
See also Plains v. Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316
, 329-30 (2008); Hicks, 533 U.S. at 367-70. This is so because while the
tribes have authority to exercise civil jurisdiction over their own members,
"exercise of tribal power beyond what is necessary to protect tribal self-
government or to control internal relations is inconsistent with the dependent
status of the tribes, and so cannot survive without express congressional
delegation." Montana, 450 U.S. at 564 (citations omitted). Generally, therefore,
"the inherent sovereign powers of an Indian tribe do not extend to the activities of
nonmembers of the tribe." Id. at 565.
There are two exceptions to Montana's general rule against tribal court
jurisdiction over non-Indians. Under the first, a tribe may regulate "activities of
nonmembers who enter consensual relationships with the tribe or its members,
through commercial dealing, contracts, leases, or other agreements." Id. Under
the second, a tribe may exercise authority over nonmember conduct where "the
conduct threatens or has some direct effect on the political integrity, the economic
security, or the health or welfare of the tribe." Id. at 566. The Supreme Court
has made clear, however, that in applying these exceptions "to nonmembers . . . ,
a tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction."
Strate v. A-1 Contractors, 520 U.S. 438
, 453 (1997); accord Hicks, 533 U.S. at
[End Page 17]
357-58. Tribal courts are thus not courts of general jurisdiction. As the Court
A state court's jurisdiction is general, in that it lays hold of all
subjects of litigation between parties within its jurisdiction, though
the causes of dispute are relative to the laws of the most distant part
of the globe. Tribal courts, it should be clear, cannot be courts of
general jurisdiction in this sense, for a tribe's inherent adjudicative
jurisdiction over nonmembers is at most only as broad as it is
legislative jurisdiction. Hicks, 533 U.S. at 367 (internal quotation marks and citations omitted).
There is no dispute that Montana and its progeny govern whether the
Muscogee (Creek) Nation courts have adjudicatory jurisdiction over Crowe.
Judge Stidham maintains tribal court jurisdiction is appropriate under Montana's
first exception because, in his view, Crowe entered a "consensual relationship"
with the Muscogee (Creek) Nation by enrolling in its bar association and
practicing before its courts. It is true that membership in a tribe's bar association
and appearances before its courts can constitute a "consensual relationship" with
the tribe. But that is not the end of the Montana inquiry. Such a "consensual
relationship" may establish tribal court jurisdiction under Montana only if there is
a sufficient "nexus" between that relationship and the attendant "exertion of tribal
authority." MacArthur v. San Juan Cnty., 309 F.3d 1216
, 1223 (10th Cir. 2002).
The question thus posed is whether there is a sufficient nexus between
Crowe's practice before the Muscogee (Creek) Nation courts and Judge Stidham's
[End Page 18]
order requiring Crowe to return attorneys' fees already paid to it pursuant to its
contract with the Thlopthlocco pending determination of the merits of the
underlying tribal court litigation. We hold there is not. The vast majority of
cases Judge Stidham cites for his proposition that a tribal court has power to
regulate attorneys who practice before it are cases addressing disciplinary
matters, in which courts have permitted suits against defendant-attorneys for
alleged misconduct. See, e.g., Trinity Indus. v. Myers & Assocs., 41 F.3d 229
Cir. 1995) (breach of fiduciary duty, civil conspiracy, negligence); Johnson v.
Shaines & McEachern, P.A., 835 F. Supp. 685
(D.N.H. 1993) (legal malpractice);
Willis v. Semmes, Bowen & Semmes, 441 F. Supp. 1235
(E.D. Va. 1977)
(malpractice, breach of contract, conversion, conspiracy); Waterval v. District
Court, 620 P.2d 5 (Colo. 1980) (breach of fiduciary obligations); In re Estate of
Vernon, 609 So. 2d 128 (Fla. Dist. Ct. App. 1992) (legal malpractice); Sifers v.
Horen, 177 N.W.2d 189 (Mich. Ct. App. 1970) (negligence); cf. Cole v. Ruidoso
Mun. Schools, 43 F.3d 1373
(10th Cir. 1994) (affirming motion to disqualify
counsel). Those cases are inapposite here, where there has never been any
allegation that Crowe attorneys acted unprofessionally before the Muscogee
(Creek) Nation courts, and where the order directing Crowe to return its fees had
nothing to do with conduct of Crowe attorneys practicing before the court.
Judge Stidham's reliance on cases in which courts have exercised ancillary
jurisdiction over attorneys' fees issues is equally unavailing. Those cases involve
[End Page 19]
the exercise of ancillary jurisdiction where there is an actual or potential
disagreement between an attorney and his client regarding attorneys' fees related
to the judgment in the proceeding. See, e.g., Garrick v. Weaver, 888 F.2d 687
690-92 (10th Cir. 1989); Jenkins v. Weinshienk, 670 F.2d 915
, 917-18 (10th Cir.
1982); Rosquist v. Soo Line R.R., 692 F.2d 1107
, 1109-12 (7th Cir. 1982); In re
Austrian & German Bank Holocaust Litig., 317 F.3d 91
, 96-101 (2d Cir. 2003).
Here, there is no allegation regarding any tension between Crowe and the
Thlopthlocco regarding attorneys' fees to establish the requisite nexus in this
case. To the contrary, there is every indication that the Thlopthlocco Tribe, as
currently constituted, does not want Crowe to return funds paid to it for past legal
services pursuant to their contract.
For ancillary jurisdiction over Crowe as a nonmember of the tribe to be
appropriate under the consensual relationship exception to Montana, the dispute
before the tribal court must arise directly out of that consensual relationship. See
Sarah Krakoff, Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical
Guide for Judges, 81 U. Colo. L. Rev. 1187, 1225-26 (2010) ("[W]hether
affirming or rejecting the consensual relationship exception [of Montana], [courts
have] followed Strate's admonition that the claim must arise from the consensual
relationship with the tribe or tribal members."). That is not the case here.
Crowe's contractual relationship with the Thlopthlocco government has
nothing to do with Crowe attorneys' consensual relationship with the Creek
[End Page 20]
Nation based on their Bar membership. Nor is Crowe's consensual relationship
with the Creek Nation related to the dispute before Judge Stidham. The substance
of the Anderson defendants' cross-claim in tribal court is that the January 27,
2007 election was invalid and the wrong tribal members are therefore running the
government. What the Anderson defendants seek is prospective injunctive relief
against the nine individual cross-claim defendants, some of whom constitute the
Business Committee of the Thlopthlocco, to correct this alleged wrong. See supra
note 3. Even assuming the Anderson defendants should ultimately prevail on
their claim, the relief they are requesting is that the January 27, 2007 election of
the current government be declared invalid. Presumably, a new election would
have to be conducted. 8 Who would win that election and become the new
Business Committee of the Thlopthlocco is unknown and is not a part of this
tribal court litigation. Whether that Business Committee would seek to avoid any
third-party contracts made by the prior Business Committee on behalf of the
Thlopthlocco and attempt to recover any amounts paid under such contracts,
including the contract with Crowe, is also unknown and is not a part of the
litigation before Judge Stidham. While the Creek Nation has jurisdiction to
regulate its own citizens, the Thlopthlocco is an independent tribal entity that
It is noteworthy that the Anderson defendants never asked Judge Stidham
or the Muscogee Supreme Court to order Crowe to return the fees it had been
paid. Instead, they argued that the attorneys fees of both parties should be paid
out of the Thlopthlocco Treasury for the duration of the litigation.
[End Page 21]
elects its own government pursuant to its own Constitution and is not itself a
citizen of the Creek Nation. Judge Stidham does not suggest that the Creek
Nation has any regulatory power over the contracts the Thlopthlocco makes with
third parties in general. Instead, Judge Stidham contends "the issue of the
Muscogee (Creek) Nation's jurisdiction over the law firm's contract is simply one
aspect of the Muscogee (Creek) Nation's jurisdiction over the law firm in general
as attorneys practicing before its courts." Reply Br. at 10. No case supports
ancillary jurisdiction in circumstances like those here, where the claim that Crowe
must return its fees has nothing to do with the reasonableness of fees. Because
the validity of the fee contract is not relevant to Crowe's practice before the
Creek Nation courts or its attorneys' membership in the Creek Nation's bar
association, Judge Stidham did not have adjudicatory authority to order Crowe to
return fees it received pursuant to its contract with the Thlopthlocco.
We therefore conclude that the first Montana exception does not support
the exercise of tribal court jurisdiction over Crowe with respect to the fees it
received from the Thlopthlocco. While Crowe attorneys submitted themselves to
the Muscogee (Creek) Nation tribal court when they brought the Thlopthlocco
litigation, there is no basis on which to conclude they or the firm submitted
themselves to the general subject matter jurisdiction of the tribal court for all
purposes, especially not for the purpose of voiding their contractual relationship
with the Thlopthlocco, when that contract is not, directly or indirectly, part of the
[End Page 22]
Anderson defendant's claims before the court.
Nor does the second Montana exception apply. That exception is a narrow
one which authorizes a tribe to exercise civil jurisdiction over a non-Indian whose
conduct implicates the "political integrity, the economic security, or health or
welfare of the tribe." Montana, 450 U.S. at 566. To support jurisdiction under
this exception, the conduct must "imperil the subsistence of the tribal
community." Plains, 554 U.S. at 341 (internal quotation marks omitted). Crowe's
conduct in representing the Thlopthlocco, and being paid by it for doing so, does
not undermine the sovereignty or welfare of the Muscogee (Creek) Nation, a
separate tribal entity.
In the absence of any compelling argument establishing tribal court
jurisdiction over Crowe, a nonmember of the Creek Nation tribe who was not a
party to the tribal court litigation, we hold that the Muscogee (Creek) Nation
courts plainly did not have jurisdiction to order Crowe to return fees it already
had earned pursuant to its legal services contract with the Thlopthlocco.
Accordingly, the exhaustion requirement would serve no purpose, and there is no
need to require further tribal court litigation before the exercise of federal
jurisdiction in this case.
[End Page 23]
Judge Stidham asserts he is entitled to both sovereign and judicial
immunity "because he acted within the scope of his authority as a tribal court
judge." Aplt. Br. at 1. We review de novo the district court's denial of tribal
sovereign immunity, Miner Elec., Inc. v. Muscogee (Creek) Nation, 505 F.3d 1007
, 1009 (10th Cir. 2007), and its denial of judicial immunity, see Malik v.
Arapahoe Cnty. Dept. of Soc. Servs., 191 F.3d 1306
, 1313 (10th Cir. 1999).
"Indian tribes have long been recognized as possessing the common-law
immunity from suit traditionally enjoyed by sovereign powers." Santa Clara
Pueblo v. Martinez, 436 U.S. 49
, 58 (1978); accord Berrey v. Asarco, Inc., 439 F.3d 636
, 643 (10th Cir. 2006); see Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751
, 754-60 (1998); Puyallup Tribe, Inc. v. Dep't of Game, 433 U.S. 165
This immunity extends to tribal officials, so long as they are acting within the
scope of their official capacities. Fletcher v. United States, 116 F.3d 1315
(10th Cir. 1997); Burrell v. Armijo, 456 F.3d 1159
, 1174 (10th Cir. 2006); cf.
Santa Clara Pueblo, 436 U.S. at 58.
Tribal immunity is similar, although not identical, to immunity afforded to
states under the Eleventh Amendment. Compare Kiowa Tribe, 523 U.S. at 753-59
(describing evolution of common law doctrine of tribal immunity) with Hans v. [End Page 24]
Louisiana, 134 U.S. 1
, 11-15 (1890) (reading Eleventh Amendment to preclude
suits by citizens against sovereign states). Tribes and states both enjoy immunity
from suit by virtue of their status as pre-Constitutional sovereigns. See Santa
Clara Pueblo, 436 U.S. at 56 (describing tribes as "separate sovereigns
pre-existing the Constitution"); Alden v. Maine, 527 U.S. 706
, 713 (1999)
("States' immunity from suit is a fundamental aspect of the sovereignty which the
States enjoyed before the ratification of the Constitution . . . ."). The scope of
tribal immunity, however, is more limited. See Plains Commerce Bank. v. Long
Family & Cattle Co., 554 U.S. 316
, 327 (2008) (noting that the "sovereignty the
Indian tribes retain is of a unique and limited character" (internal quotation marks
omitted)); Montana v. United States, 450 U.S. 544
, 563 (1981) (observing that
with their incorporation into the United States, "Indian tribes have lost many of
the attributes of sovereignty"). Because tribal immunity is a matter of federal
common law, not a constitutional guarantee, its scope is subject to congressional
control and modification. See Kiowa Tribe, 523 U.S. at 759 (recognizing plenary
authority of Congress to alter tribal immunity); cf. United States v. Lara, 541 U.S. 193
(2004) (upholding federal statute relaxing previously recognized bounds of
In Ex parte Young, 209 U.S. 123
(1908), the Supreme Court carved out an
exception to Eleventh Amendment immunity for suits against state officials
seeking to enjoin alleged ongoing violations of federal law. See id. at 159-60;
[End Page 25]
Hill v. Kemp, 478 F.3d 1236
, 1255-59 (10th Cir. 2007) (discussing rationale and
subsequent history of Ex parte Young). The Ex parte Young exception proceeds
on the fiction that an action against a state official seeking only prospective
injunctive relief is not an action against the state and, as a result, is not subject to
the doctrine of sovereign immunity. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89
, 105 (1984) (noting "fiction of Young"); Hill, 478 F.3d at
1256 (same). By adhering to this fiction, the Ex parte Young doctrine enables
"federal courts to vindicate federal rights and hold state officials responsible to
the supreme authority of the United States." Pennhurst, 465 U.S. at 105; see also
Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487
, 495 (10th 1998) (internal
quotation marks omitted).
In prior cases, we have applied Ex parte Young, albeit implicitly, in the
tribal context. See Burrell, 456 F.3d at 1174; Tenneco Oil Co. v. Sac & Fox Tribe
of Indians, 725 F.2d 572
, 574 (10th Cir. 1984) (per curiam). Today we join our
sister circuits in expressly recognizing Ex parte Young as an exception not just to
state sovereign immunity but also to tribal sovereign immunity. See, e.g., Vann v.
Kempthorne, 534 F.3d 741
, 749 (D.C. Cir. 2008); N. States Power Co. v. Prairie
Island Mdewakanton Sioux Indian Cmty., 991 F.2d 458
, 460 (8th Cir. 1993);
Tamiami Partners, Ltd. ex rel. Tamiami Dev. Corp. v. Miccosukee Tribe of
Indians, 177 F.3d 1221
, 1225-26 (11th Cir 1999); cf. Okla. Tax Comm'n v. Citizen
Band Potawatomi Indian Tribe, 498 U.S. 505
, 514 (1991) (leaving open Ex parte
[End Page 26]
Young's applicability in tribal context). We see no reason to restrict tribal
sovereign immunity from the reaches of the Ex parte Young doctrine, particularly
when Congress retains plenary authority to do so, cf. Kiowa Tribe, 523 U.S. at
In the present case, we are asked to consider whether Ex parte Young may
be applied to enjoin a violation of federal common law, namely, the unlawful
exercise of tribal court jurisdiction. See Hicks, 533 U.S. at 357-60 (recognizing
common law basis of tribal court jurisdiction); Three Affiliated Tribes v. Wold
Eng'g, 476 U.S. 877
, 890 (1986) (similar). Judge Stidham argues that Ex parte
Young only applies when a complaint alleges an ongoing violation of the United
States Constitution or a federal statute, and that an ongoing violation of federal
common law is insufficient to sustain application of the doctrine. We disagree.
Judge Stidham cites no case, and we have found none, explicitly limiting
the application of Ex parte Young to alleged violations of federal constitutional or
statutory law, or conversely, refusing to apply the doctrine because the alleged
violation was merely one of federal common law. In prior cases, we have
assumed that federal common law was sufficient to sustain the application of the
doctrine. See, e.g., Johns v. Stewart, 57 F.3d 1544
, 1549 (10th Cir. 1995) (noting
that "[t]o properly bring their claim under Ex parte Young, Plaintiffs must assert
an ongoing violation of a federal right" and analyzing whether plaintiffs had done
so under federal common law); Am. Petrofina Co. v. Nance, 859 F.2d 840
[End Page 27]
(10th Cir. 1988) (applying Ex parte Young on basis of violation of federal
common law). Today we expressly so hold.
The Supreme Court has explained that, in determining whether the doctrine
of Ex parte Young applies, "a court need only conduct a straightforward inquiry
into whether [the] complaint alleges an ongoing violation of federal law and seeks
relief properly characterized as prospective." Verizon, Inc. v. Md., Inc. v. Pub.
Serv. Comm'n, 535 U.S 635, 645 (2002) (internal quotation marks omitted)
(alteration in original); see also Va. Office for Protection & Advocacy v. Stewart,
No. 09-529, 2011 WL 1466121, at *6 (U.S. Apr. 19, 2011) (applying Verizon);
Muscogee (Creek) Nation v. Okla. Tax Comm'n, 611 F.3d 1222
, 1232 (10th Cir.
2010) (same). A prayer for injunctive relief asking "that state officials be
restrained from enforcing an order in contravention of controlling federal law"
satisfies Verizon's straightforward inquiry. Verizon, 535 U.S. at 645. Verizon's
direction does not limit the Ex parte Young inquiry to whether federal
constitutional or statutory law has been violated, and we reject Judge Stidham's
argument that federal common law is inadequate to sustain the application of the
Ex parte Young doctrine.
Our conclusion accords with the logic of Ex parte Young, which was
motivated by a recognition of, and allegiance to, federal law as the supreme law
of the United States. See Ex Parte Young, 209 U.S. at 167 (adopting "immunity
stripping" rationale on ground that "the state cannot . . . impart to the official
[End Page 28]
immunity from responsibility of the supreme authority of the Untied States").
Under Ex parte Young, certain official-capacity suits are excepted from the
doctrine of sovereign immunity as a way to vindicate federal rights and, in the
process, ensure the supremacy of federal law. See, e.g., Pennhurst, 465 U.S. at
105 ("[T]he Young doctrine has been accepted as necessary to permit the federal
courts to vindicate federal rights and hold state officials responsible to the
supreme authority of the United States." (internal quotation marks omitted)); see
also Va. Office for Protection & Advocacy, 2011 WL 1466121, at *6 (endorsing
Pennhurst, 465 U.S. at 105-07); Idaho v. Coeur d'Alene Tribe, 521 U.S. 261
(1997) ("Ex parte Young gives life to the Supremacy Clause." (quoting Green v.
Mansour, 474 U.S. 64
, 68 (1985)); accord Buchwald, 159 F.3d at 495 (endorsing
Pennhurst, 465 U.S. at 105). This rationale applies with equal force here, where
federal common law has been recognized as the supreme law of the United States,
cf. Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310
, 314 (1955), and
there is an established "federal right to be protected against the unlawful exercise
of Tribal Court judicial power." MacArthur v. San Juan Cnty., 309 F.3d 1216
1225 (10th Cir. 2002) (internal quotation marks omitted).
Applying the instruction of Verizon and logic of Ex parte Young, we hold
that the alleged unlawful exercise of tribal court jurisdiction in violation of
federal common law is an ongoing violation of "federal law" sufficient to sustain
the application of the Ex parte Young doctrine. Satisfied that Crowe seeks
[End Page 29]
prospective relief to enjoin a tribal official from enforcing an order in
contravention of controlling federal law, we agree with the district court that this
action falls within the Ex parte Young exception, and therefore is not barred by
the doctrine of sovereign immunity.
Given our conclusion that this action falls within Ex parte Young's
exception to sovereign immunity, we may dispense quickly with Judge Stidham's
contention that he is entitled to judicial immunity. We hold he is not.
Judicial immunity applies only to personal capacity claims. See Kentucky
v. Graham, 473 U.S. 159
, 166-67 (1985) ("When it comes to defenses of liability,
an official in a personal-capacity action may . . . be able to assert personal
immunity defenses . . . . In an official-capacity action, these defenses are
unavailable."). The Ex parte Young exception applies in this case because Crowe
seeks relief from Judge Stidham in his official capacity. See, e.g., Kemp, 478 at
1255-56. Judicial immunity does not apply here because Judge Stidham was not
sued in his individual capacity.
Because this ground is a sufficient basis for affirming the district court's
denial of judicial immunity, we need not consider whether, as the district court
concluded, judicial immunity is likewise inapplicable under the exception for
actions seeking prospective injunctive relief set forth in Pulliam v. Allen, 466
[End Page 30]
U.S. 522 (1984). See Harris v. Champion, 51 F.3d 901
, 905 (10th Cir. 1995).
We turn finally to Judge Stidham's contention that the district court erred
in preliminarily enjoining him from ordering Crowe to return its fees to the
Thlopthlocco pending resolution of the underlying litigation in tribal court. We
review the district court's grant of a preliminary injunction for an abuse of
discretion. Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221
, 1226 (10th Cir.
2005). "A district court abuses its discretion where it commits a legal error or
relies on clearly erroneous factual findings, or where there is no rational basis in
the evidence for its ruling." Davis v. Mineta, 302 F.3d 1104
, 1111 (10th Cir.
2002) (citation omitted).
To obtain a preliminary injunction, a plaintiff must show: "(1) a likelihood
of success on the merits; (2) a likelihood that the movant will suffer irreparable
harm in the absence of preliminary relief; (3) that the balance of equities tips in
the movant's favor; and (4) that the injunction is in the public's interest."
Chamber of Commerce v. Edmonson, 594 F.3d 742
, 764 (10th Cir. 2010) (internal
quotation marks omitted)); see also Fed. R. Civ. P. 65. Judge Stidham primarily
contends the district court should not have issued the preliminary injunction
because Crowe failed to establish the second factor â€" i.e., that it would suffer
[End Page 31]
irreparable harm without the injunction.
A plaintiff satisfies the irreparable harm requirement by showing "a
significant risk that he or she will experience harm that cannot be compensated
after the fact by monetary damages." RoDa Drilling Co. v. Siegal, 552 F.3d 1203
, 1210 (10th Cir. 2009) (internal quotation marks omitted). Purely
speculative harm will not suffice, but "[a] plaintiff who can show a significant
risk of irreparable harm has demonstrated that the harm is not speculative and will
be held to have satisfied this burden." Id. (internal quotation marks omitted).
In finding that Crowe had demonstrated it would suffer irreparable harm if
an injunction did not issue, the district court concluded that "there is a significant
risk that Crowe will be forced to expend unnecessary time, money, and effort
litigating the issue of their fees in the Muscogee Nation District Court â€" a court
which likely does not have jurisdiction over it." Crowe & Dunlevy, P.C., 609 F.
Supp. 2d at 1222. It also concluded that, without an injunction, there would be a
"significant risk that Crowe would be subject to inconsistent judgments." Id. at
1223. In particular, the court explained that Crowe would be required to return
its fees to the Thlopthlocco Treasury, leaving the firm without recourse to recoup
the fees because, as a sovereign entity, the Thlopthlocco is immune from suit. Id.
We agree with the district court that Crowe faces a significant risk of
financial injury which, given the unique circumstances of this case, creates an
irreparable harm sufficient to support a preliminary injunction. While economic
[End Page 32]
loss is usually insufficient to constitute irreparable harm, Port City Props. v.
Union Pac. R.R. Co., 518 F.3d 1186
, 1190 (10th Cir. 2008), the "[i]mposition of
money damages that cannot later be recovered for reasons such as sovereign
immunity constitutes irreparable injury." Edmonson, 594 F.3d at 770-71; see also
Ohio Oil Co. v. Conway, 279 U.S. 813
, 814 (1929); Kan. Health Care Ass'n Inc.
v. Kan. Dep't of Soc. & Rehab. Servs., 31 F.3d 1536
, 1543 (10th Cir. 1994).
Without an injunction, the Muscogee District Court will undoubtedly order
Crowe to return its attorneys fees to the Thlopthlocco Treasury. Should the
Anderson defendants prevail in the underlying tribal litigation, such that they are
deemed the rightful governing body of the Thlopthlocco, Crowe will have no
realistic way to recoup its fees. It is highly unlikely that a Thlopthlocco
government, as reconstituted by the Anderson defendants, would voluntarily
return funds to Crowe. And Crowe would have no legal recourse because the
newly constituted Thlopthlocco would be immune from suit. See Okla. Tax.
Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505
, 509 (1991). 9
The only practical way for Crowe to recover its fees would be for its client to
obtain a favorable ruling in the Muscogee courts. In the unique circumstances of
Judge Stidham's suggestion that "Crowe's contract contained an immunity
waiver," Aplt. Reply Br. at 9, does not persuade us otherwise. It is doubtful such
a waiver would be enforceable against a putative Thlopthlocco government
comprised of the Anderson defendants. Those defendants claim that the Business
Committee members who signed the contract with Crowe were invalidly elected.
There is every indication the Anderson defendants would seek to void Crowe's
contracts with its client as ultra vires.
[End Page 33]
this case, the district court did not abuse its discretion in concluding that Crowe's
significant risk of financial injury arising from irrecoverable attorneys fees is an
irreparable harm sufficient to support the issuance of a preliminary injunction. 10
Nor did the district court err in concluding that the other Rule 65 factors
were satisfied. In urging that the "balance of equities" do not favor the issuance
of the preliminary injunction, Judge Stidham argues he is harmed by "the invasion
of the Injunction into the authority of the Muscogee (Creek) Nation tribal courts
to regulate attorneys practicing before them." Aplt. Br. at 43. Judge Stidham did
not make this argument in district court. We normally do not address arguments
not presented to the district court in the first instance. United States v. Jarvis,
499 F.3d 1196
, 1201-02 (10th Cir. 2007). In any event, this argument is simply a
refashioning of Judge Stidham's general sovereign immunity and tribal court
jurisdiction arguments, which we already have found unpersuasive.
Similarly, we reject Judge Stidham's contention that the injunction is
against public policy because it impairs the authority of the tribal courts. This
argument, like his balance-of-equities argument, is a recasting of the sovereign
immunity and tribal jurisdiction arguments we have rejected. We simply are not
Because we conclude the district court did not abuse its discretion in
finding irreparable harm on this ground, we need not consider whether Crowe's
expenditure of time, money, and effort in litigating before the tribal court
provides an additional basis for finding irreparable harm. Our holding is limited
to the economic injury related to Crowe's likely irrecoverable attorneys' fees.
[End Page 34]
persuaded the exertion of tribal authority over Crowe, a non-consenting,
nonmember, is in the public's interest. Cf. MacArthur, 309 F.3d at 1225.
Finally, given our holding that the Muscogee (Creek) Nation courts plainly
lacked jurisdiction to require Crowe to return its fees to the Thlopthlocco,
Crowe's probability of success on the merits is without question. Accordingly,
we conclude the district court did not abuse its discretion in granting the
preliminary injunction against Judge Stidham.
For the reasons stated above, we AFFIRM.
[End Page 35]