United States District Court, D. South Dakota, Southern Division
SPRINT COMMUNICATIONS COMPANY L.P., and SPRINT COMMUNICATIONS, INC., f/k/a Sprint Nextel Corporation, Plaintiffs,
MARY WYNNE, in her Official Capacity as Chief Judge of the Oglala Sioux Tribal Court; OGLALA SIOUX TRIBE UTILITIES COMMISSION, JOE RED CLOUD, in his Official Capacity as Commissioner of the Oglala Sioux Tribe Utilities Commission; IVAN BETTELYOUN, in his Official Capacity as Commissioner of the Oglala Sioux Tribe Utilities Commission; DAVID TERRY MILLS, in his Official Capacity as Commissioner of the Oglala Sioux Tribe Utilities Commission; and ARLENE CATCHES THE ENEMY, in her Official Capacity as Commissioner of the Oglala Sioux Tribe Utilities Commission; Defendants
[Copyrighted Material Omitted]
Sprint Communications Company L.P., Sprint Communications,
Inc., formerly known as Sprint Nextel Corporation,
Plaintiffs: Philip R. Schenkenberg, Scott G. Knudson, LEAD
ATTORNEYS, PRO HAC VICE, Briggs and Morgan, P.A.,
Minneapolis, MN; Terry L. Pechota, LEAD ATTORNEY, Rapid City,
SD; Tommy Drake Tobin, LEAD ATTORNEY, Winner, SD.
Mary Wynne, in her official capacity as Chief Judge of the
Oglala Sioux Tribal Court, Oglala Sioux Tribe Utilities
Commission, Joe Red Cloud, in his official capacity as
Commissioner of the Oglala Sioux Tribe Utilities Commission,
Ivan Bettelyoun, in his official capacity as Commissioner of
the Oglala Sioux Tribe Utilities Commission, David Terry
Mills, in his official capacity as Commissioner of the Oglala
Sioux Tribe Utilities Commission, Arlene Catches the Enemy,
in her official capacity as Commissioner of the Oglala Sioux
Tribe Utilities Commission, Defendants: Jay C. Shultz, LEAD
ATTORNEY, The Shultz Law Firm, Prof. LLC, Rapid City, SD.
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION AND
E. SCHREIER, UNITED STATES DISTRICT JUDGE.
is a motion for preliminary injunction filed by Sprint
Communications Company, L.P., and Sprint Communications, Inc.
(collectively, Sprint). Defendants oppose the motion. For the
following reasons, the motion for preliminary injunction is
denied and this action is stayed pending exhaustion of tribal
Communications, Inc. (Sprint Inc.) is the parent company of
Sprint Communications Company (Sprint Communications). Sprint
Inc. is a Kansas corporation and does not directly provide
any telecommunications services. Sprint Communications is a
Delaware limited partnership with its offices located in
Kansas. Sprint Communications is an interexchange carrier
(IXC) and is authorized by the Federal Communications
Commission (FCC) to provide interstate telecommunications
Oglala Sioux Tribal Utilities Commission (OSTUC) was formally
established in 2013 as a subdivision of the Oglala Sioux
Tribe. The OSTUC is responsible for the exercise of tribal
regulatory authority over all utility systems on the Pine
Ridge Indian Reservation. Defendants Joe Red Cloud, Ivan
Bettelyoun, David Terry Mills, and Arlene Catches The Enemy
are commissioners of the OSTUC and are named as defendants in
their official capacities only. Defendant Mary Wynne is the
Chief Judge of the Oglala Sioux Tribal Court and is also
named as a defendant in her official capacity only.
IXC, Sprint Communications delivers long-distance calls from
one local area to another. When an individual makes a
long-distance telephone call, the call originates with the
local exchange carrier (LEC) serving the individual making
the call and is transported by the IXC selected by the
calling individual to the LEC serving the individual
receiving the call. The IXC either owns the facilities over
which the call travels between originating and terminating
LECs or it enters
into arrangements with other IXCs to route the calls over
their facilities. IXCs pay " originating" and
" terminating" access charges to the LECs that
serve individuals who initiate and receive long-distance
2014, the OSTUC initiated seven rulemaking proceedings
involving utility providers on Pine Ridge and adopted 12
orders. In one of those orders, U-1-2014, the OSTUC created:
a registration requirement for all utilities; an annual
reporting requirement and payment of a utility fee; a process
for handling consumer complaints; guidance for imposing
taxes, fees, and surcharges on consumers; and initiation and
termination of service requirements. See Docket 16-6
(final order dated September 9, 2014). Later, the OSTUC
imposed a fine of $1,000 per day for each day a utility
failed to register in compliance with requirements set forth
by the OSTUC. Docket 16-7.
did not participate in the development or implementation of
U-1-2014. Sprint Communications has not registered with or
obtained a business license from the OSTUC. Several
telecommunications companies, including Sprint
Communications, have refused to comply with the requirements
imposed by the OSTUC. As a result of that noncompliance, the
OSTUC filed a complaint against those carriers, including
Sprint, in the Oglala Sioux Tribal Court.
Docket 16-13 (tribal court complaint).
Sprint filed its complaint in this matter. Sprint argues that
the tribal regulatory process is a disguised effort to compel
IXCs to pay Native American Telecom-Pine Ridge (NAT-PR), a
tribal LEC, for terminating access charges associated with an
access stimulation scheme run on Pine Ridge. See
Docket 1 at 2-5, 11-12. Sprint seeks a declaratory judgment
that neither Sprint Inc. nor Sprint Communications is subject
to regulation by the OSTUC, and an order permanently
enjoining the OSTUC from proceeding against Sprint.
Id. at 18-19. Sprint requested a preliminary
injunction. Docket 12. In support, Sprint asserts
that it does not have to exhaust its tribal court remedies
because it is plain that the tribal court does not have
jurisdiction over either Sprint entity.
federal court must have jurisdiction over a matter before it
grants preliminary relief. Bruce H. Lien Co. v. Three
Affiliated Tribes, 93 F.3d 1412, 1422 (8th Cir. 1996).
" [W]hether a tribal court has adjudicative authority
over nonmembers is a federal question." Plains
Commerce Bank v. Long Family Land & Cattle Co., 554 U.S.
316, 324, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008) (citing
Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15, 107
94 L.Ed.2d 10 (1987)); see also Nat'l
Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471
U.S. 845, 852, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985). Thus,
this court has jurisdiction to decide this matter.
point to no federal statute or treaty specifically
authorizing tribal jurisdiction in this case so any tribal
jurisdiction " must arise from [the Oglala Sioux
Tribe's] 'retained or inherent
sovereignty.'" Belcourt Pub. Sch. Dist. v.
Davis, 786 F.3d 653, 657 (8th Cir. 2015) (quoting
Atkinson Trading Co. v. Shirley, 532 U.S. 645,
649-50, 121 S.Ct. 1825, 149 L.Ed.2d 889 (2001)). The "
pathmarking case" on inherent tribal jurisdiction over
nonmembers is Montana v. United States, 450 U.S.
544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). Nevada v.
Hicks, 533 U.S. 353, 358, 121 S.Ct. 2304, 150 L.Ed.2d
398 (2001). " Indian tribes lack civil authority over
the conduct of nonmembers on non-Indian land within a
reservation, subject to two exceptions: The first exception
relates to nonmembers who enter consensual relationships with
the tribe or its members; the second concerns activity that
directly affects the tribe's political integrity,
economic security, health, or welfare." Strate v.
A-1 Contractors, 520 U.S. 438, 446, 117 S.Ct. 1404, 137