United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
Leslie Romero initiated this action against defendants
Wounded Knee LLC (“WK LLC”), Wounded Knee
Community Development Corporation (“WKCDC”) and
Mark St. Pierre. (Docket 1). Upon plaintiff's motion, the
court dismissed Mr. St. Pierre. (Docket 31). WK LLC has not
formally appeared in the case. WKCDC retained counsel and
appeared. (Docket 32).
claims she was sexually assaulted and harassed while employed
by defendants. (Docket 1). She alleges torts and violations
of Title VII of the Civil Rights Act of 1964 and the South
Dakota Human Relations Act of 1972. Id. Plaintiff is
an enrolled member of the Oglala Sioux Tribe
(“Tribe”) and the incidents alleged in the
complaint occurred within the exterior boundaries of the Pine
Ridge Indian Reservation (“Pine Ridge”) at
Manderson, South Dakota.
AND FACTUAL BACKGROUND
failed to file answers to plaintiff's complaint, so the
clerk entered default against them. (Docket 14). Plaintiff
filed a motion for default judgment, and the court entered an
order finding she was entitled to default judgment. (Docket
27). The court later acknowledged it will not enter final
judgment in plaintiff's favor until the court makes
findings regarding the specific claims in the complaint on
which it would enter judgment and the appropriate amount of
damages supported by evidence. (Docket 39). While the court
granted plaintiff's motion for default judgment, a final
judgment has not been entered in this case.
prevent an adverse final judgment, WKCDC raised the issues of
tribal court exhaustion and tribal sovereign immunity in a
motion to set aside default judgment. (Dockets 41 & 42).
WKCDC alleges its connection with the Tribe provides WKCDC
with tribal sovereign immunity. (Dockets 41 & 42).
According to WKCDC, its origins trace back to a federal
economic program. (Docket 42 at p. 7). WKCDC indicates that
nearly two decades ago the Oglala Oyata Woitancan
(“OOW”) was established in coordination with the
federal government. Id. The OOW was a geographic
designation covering primarily Pine Ridge.
Id. An emphasis of the OOW was facilitating
infrastructure development funds from the federal government
to Pine Ridge. See Danielle Her Many Horses,
Oglala Lakota Nation Profile, University of New
Mexico School of Law Tribal Law Journal, Volume 2: 2001-02,
The Tribe's Constitution created community governments
called Districts that represent local interests, and each
District could choose whether to participate in the OOW.
Id. WKCDC claims there was an OOW Board with a
member who was also a member of an entity WKCDC refers to as
the Wounded Knee District Task Force (“the District
Task Force”). (Docket 42 at p. 7). According to WKCDC,
once the OOW expired, the District Task Force became WKCDC
and the District Task Force's assets and property were
transferred to WKCDC. Id. WKCDC alleges its articles
of incorporation demonstrate its affiliation with the Tribe
and WKCDC's tribal sovereign immunity. Id. at
filed a response to WKCDC's motion to set aside default
judgment, and plaintiff requested more time to conduct
discovery on the issues spotlighted in the motion. (Docket
50). The court informally communicated with the parties about
a discovery timeline and entered a scheduling order requiring
the parties to participate in discovery on the issues of
tribal court exhaustion and tribal sovereign immunity.
through its attorney Deborah Dubray, violated the discovery
order and the court granted plaintiff's motion for
sanctions pursuant to Federal Rule of Civil Procedure 37.
(Docket 79). Part of the noncompliance was Ms. Dubray
refusing to participate in discovery and filing a Rule
12(b)(1) motion claiming WKCDC was entitled to tribal
sovereign immunity. (Docket 55). The court held a show cause
hearing prior to entering the Rule 37 sanctions order.
(Docket 70). At the conclusion of the show cause hearing, the
court ordered the parties to submit briefing on the
applicability of tribal court exhaustion to the case.
sovereign immunity predates the birth of the Republic. The
immunity rests on the status of Indian tribes as autonomous
political entities, retaining their original natural rights
with regard to self-governance.” Ninigret Dev.
Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207
F.3d 21, 29 (1st Cir. 2000) (internal citation and quotation
marks omitted). “As a matter of comity, the examination
of tribal sovereignty and jurisdiction should be conducted in
the first instance by the tribal court itself. Thus, a
federal court should stay its hand in order to give tribal
forums the initial opportunity to determine cases involving
questions of tribal authority.” Colombe v. Rosebud
Sioux Tribe, 747 F.3d 1020, 1024 (8th Cir. 2014)
(internal alteration, citation and quotation marks omitted).
“Allowing tribal courts to make an initial evaluation
of jurisdictional questions serves several important
functions, such as assisting in the orderly administration of
justice, providing federal courts with the benefit of tribal
expertise, and clarifying the factual and legal issues that
are under dispute and relevant for any jurisdictional
evaluation.” DISH Network Serv. L.L.C. v.
Laducer, 725 F.3d 877, 882 (8th Cir. 2013) (citing
Nat'l Farmers Union Ins. Cos. v. Crow Tribe of
Indians, 471 U.S. 845, 856-57, (1985)).
“Exhaustion includes both an initial decision by the
tribal court and the completion of appellate review.”
Id. at 882-83 (citing Iowa Mut. Ins. Co. v.
LaPlante, 480 U.S. 9, 15 (1987)).
doctrine of tribal court exhaustion applies even when there
is no pending concurrent tribal action.” Heldt v.
Payday Fin., LLC, 12 F.Supp.3d 1170, 1180 (D.S.D. 2014).
Courts can raise tribal court exhaustion sua sponte.
AT&T Corp. v. Oglala Sioux Tribe Util.
Comm'n, No. CIV 14-4150, 2015 WL 5684937, at *5
(D.S.D. Sept. 25, 2015) (“While the parties do not
raise the question of the applicability of tribal exhaustion
doctrine, the Court finds it to be a necessary consideration
and thus raises it sua sponte.”); see
United States v. Tsosie, 92 F.3d 1037, 1041 (10th Cir.
1996) (holding tribal exhaustion may be addressed sua
sovereign immunity goes to the court's subject matter
jurisdiction and usually the court must address
jurisdictional issues first. But the precedent of the United
States Court of Appeals for the Eighth Circuit requires the
court to enforce the exhaustion of tribal court remedies
before fully analyzing tribal sovereign immunity. In
Davis v. Mille Lacs Band of Chippewa Indians, the
Eighth Circuit held “the Supreme Court has stated that
the issue of a tribe's sovereign immunity is the very
kind of question that is to be decided in the first instance
by the tribal court itself.” 193 F.3d 990, 992 (8th
Cir. 1999); see Malaterre v. Amerind Risk Mgmt., 373
F.Supp.2d 980, 982 n.3 (D.N.D. 2005) (“It has been
established in the Eighth Circuit that tribal exhaustion
precedes the tribal immunity inquiry.”); see also
Ninigret (“The Eighth Circuit has held that a
district court should begin this phase of its inquiry by
addressing exhaustion and, if it determines that tribal
remedies must be exhausted, give the tribal court the first
crack at considering the bona fides of the sovereign immunity
tribal sovereign immunity shields WKCDC from suit raises
important legal and factual issues federal courts often
analyze. See J.L. Ward Associates, Inc. v. Great Plains
Tribal Chairmen's Health Bd., 842 F.Supp.2d 1163,
1171-72 (D.S.D. 2012) (collecting cases). Federal courts also
routinely provide tribal courts the first opportunity to
address those issues. See, e.g., Sharber v.
Spirit Mountain Gaming Inc., 343 F.3d 974, 976 (9th Cir.
2003) (per curium) (“Nor did the district court err in
concluding that the tribal exhaustion requirement also
applies to issues of tribal sovereign immunity. Determining
whether the tribe has waived immunity, or ...