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SPRINT COMMUNICATIONS ) CIV. 10-4110-KES COMPANY, L.P v. NATIVE AMERICAN TELECOM

December 1, 2010

SPRINT COMMUNICATIONS ) CIV. 10-4110-KES COMPANY, L.P., PLAINTIFF,
v.
NATIVE AMERICAN TELECOM, LLC; ) B.J. JONES, IN HIS OFFICIAL CAPACITY AS SPECIAL JUDGE OF TRIBAL COURT;
DEFENDANTS.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

MEMORANDUM AND GRANTING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION CROW CREEK SIOUX TRIBAL COURT,

MOTION FOR A STAY AND MOTION TO STRIKE PLAINTIFF'S

Defendants, Native American Telecom (NAT) and the Crow Creek Sioux Tribal Court (CCSTC), move for an order staying this action until CCSTC determines if it has jurisdiction over this matter. Plaintiff, Sprint Communications Company, resists the motion and moves for a preliminary injunction to enjoin CCSTC from hearing this matter. Defendants also move to strike Sprint's memorandum in support of its motion for a preliminary injunction because it violates the local rules of civil procedure.

BACKGROUND

The facts viewed in the light most favorable to NAT pertinent to this order are as follows: Sprint provides nationwide long-distance telephone services and is known under the telecommunications regulatory framework as an interexchange carrier (IXC). Sprint delivers long-distance

ORDER DENYING DEFENDANTS' telecommunication calls to a local exchange carrier (LEC) for termination. Sprint pays the LEC a terminating access charge based on the LEC's filed tariff.

In 1997, the Crow Creek Sioux Tribe established the Crow Creek Sioux Tribal Utility Authority (Tribal Utility Authority). In October of 2008, the Tribal Utility Authority authorized NAT, a tribally owned limited liability company organized under the laws of South Dakota, to provide telecommunications service on the Crow Creek Reservation subject to the tribe's laws. Under the telecommunications regulations, NAT is known as an LEC because NAT terminates calls on the reservation. NAT then filed two access service tariffs for telephone traffic on the reservation, one with the FCC for interstate traffic and one with the Tribal Utility Authority for intrastate traffic within the reservation.

Shortly after NAT began operating as an LEC, Sprint refused to pay NAT's terminating access tariffs. In March of 2010, NAT filed a complaint against Sprint with the Tribal Utility Authority seeking enforcement of its access tariffs. On March 29, 2010, the Tribal Utility Authority entered an ex parte order finding that Sprint's refusal to pay NAT's tariffs violated the "filed rate doctrine." In response, Sprint filed a complaint with the South Dakota Public Utilities Commission (SDPUC) to enjoin NAT's collection efforts with respect to interstate traffic.*fn1 On July 12, 2010, NAT filed a complaint in CCSTC to collect the unpaid access service tariffs. CCSTC has directed the parties to brief the tribal court jurisdiction issue and has not determined whether it has jurisdiction over this matter. On August 16, 2010, Sprint filed a complaint with this court to enjoin CCSTC from further proceedings.

DISCUSSION

I. Motion to Strike

Defendants move to strike Sprint's memorandum in support of its motion for a preliminary injunction for failure to seek leave before filing an overlength brief. Defendants request that this court strike pages 26-47 of Sprint's brief.

Local Civil Rule 7.1(B)(1) requires that a brief not exceed 25 pages or 12,000 words unless the court granted prior approval. If the brief does exceed 25 pages, it must be accompanied by a certificate stating that the brief complies with the type-volume limitation. D.S.D. Civ. LR 7.1(B)(1).

Sprint's brief in support of its motion for a preliminary injunction is 47 pages and contains 10,656 words. Because the brief is under the 12,000 word limit, Sprint did not need prior approval to file an overlength brief, but it should have filed a word count compliance certificate. D.S.D. Civ. LR 7.1(B)(1).

Sprint failed to comply with Local Rule 7.1(B)(1). After receiving notice of its failure, Sprint rectified the situation by filing a "Word Count Compliance Certificate." Docket 42. While the court prefers that parties comply with the local rules without prompting by the opposing party, NAT and CCSTC suffered no prejudice because Sprint failed to file a word count certificate. To strike almost half of Sprint's brief would work an injustice against Sprint and preclude a full resolution of the issues pending before this court. Defendants' motion to strike is denied.

II. Defendants' Motion for a Stay and Exhaustion of the Jurisdiction Question in Tribal Court Before a federal court grants preliminary relief, it must have jurisdiction

over the matter. Bruce H. Lien Co. v. Three Affiliated Tribes, 93 F.3d 1412, 1422 (8th Cir. 1996). Whether a tribal court has adjudicative authority over a non-tribal member presents a federal question. Plains Commerce Bank v. Long Family Land & Cattle Co., 128 S. Ct. 2709,2716-17 (2008)(citing Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15 (1987)). Federal law governs the outcome. Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 852 (1985). Accordingly, the question falls under this court's "arising under federal law" jurisdiction in 28 U.S.C. § 1331. El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 483 (1999).

The Supreme Court has long recognized that Indian tribes are " 'distinct, independent political communities.' " Plains Commerce, 128 S. Ct. at2718 (quoting Worcester v. Georgia, 31 U.S. 515, 559 (1832)). "Tribal courts play a vital role in tribal self-government, and the Federal Government has consistently encouraged their development." Iowa Mut., 480 U.S. at 14-15 (internal citation omitted). Given these long-held policy considerations, the doctrine of tribal exhaustion requires parties to exhaust their case in tribal court before seeking relief in a federal court, including questions of jurisdiction. Nevada v. Hicks, 533 U.S. 353, 369 (2001). Exhaustion is appropriate because " 'Congress is committed to a policy of supporting tribal self-government . . . [which] favors a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal basis for the challenge.' " Neztsosie, 526 U.S. at 484 (alteration in original) (quoting Nat'l Farmers Union, 471 U.S. at 856).

While the policy considerations favoring tribal courts are strong, the tribal court exhaustion rule is only a prudential rule based on comity. Strate v. A-1 Contractors, 520 U.S. 438, 450-51 (1997) (citing Nat'l Farmers Union, 471 U.S. at 857); see also Iowa Mut., 480 U.S. at 16 n.8 ("[E]xhaustion is required as a matter of comity, not as a jurisdictional prerequisite."). Generally, when the tribal court has ...


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