Back to the Indian Law Bulletins

(Cite as: 2004 WL 4960751 (D.Wyo.))

United States District Court,D. Wyoming.

MARATHON OIL COMPANY, an Ohio corporation, Plaintiff,

v.

Corey JOHNSTON, Defendant.

No. 03-CV-1031-J.

June 1, 2004.

Patrick T. Holscher, Schwartz Bon Walker & Studer, Frank D. Neville, Williams Porter Day & Neville, Casper, WY, for Plaintiff.

John R. Vincent, Riverton, WY, for Defendant.

ORDER GRANTING MOTION TO DISMISS

JOHNSON, J.

*1 The above-captioned matter has come before the Court on defendant Corey Johnston's Motion to Dismiss Complaint for Declaratory Relief. The Court, having reviewed the motion, and the material filed in support thereof and in opposition thereto, and being otherwise fully advised in the premises, FINDS and ORDERS as follows:

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Johnston is a resident of Hot Springs County, Wyoming. Plaintiff Marathon Oil Company (hereinafter ?Marathon Oil?) is an Ohio corporation authorized to do business in the State of Wyoming and on the Wind River Indian Reservation. Marathon Oil is engaged in the exploration and development of oil and gas properties on the Wind River Indian Reservation and was the owner of the working interest and designated operator of the Tribal C-23 well pursuant to the terms of Bureau of Indian Affairs Lease # 14-20-0258-2192 (hereinafter ?Lease?).

On April 22, 2000, while an employee of R & S Well Service, Marathon Oil's agent and representative, Mr. Johnston was injured on the C-23 location, a Marathon Oil lease site, on the Wind River Reservation when a pin worked out of the bales on the traveling block and subsequently fell on him. Mr. Johnston filed suit against Marathon Oil in the Shoshone and Arapaho Tribal Court on April 17, 2002 alleging (1) violation of a duty to provide for the health and safety of all workmen arising out of state and federal law; ^FN1 (2) violation of a duty to exercise reasonable care arising by virtue of Marathon Oil's retention of control and assumption of affirmative safety duties; (3) violation of duties established by federal and state regulation; and (4) violation of a duty by virtue of Marathon Oil's ownership of interest in land.

FN1. Defendant plead as follows in his Complaint:

8. Under the terms of the Wyoming Oil and Gas Commission Rules and Regulations, the [Marathon Oil] was obliged to carry on all operations and maintain the Tribal C-23 well at all times in a safe and workmanlike manner, having due regard for the preservation and conservation of the property and for the health and safety of employees.

9. Under the terms of the rules and regulations promulgated by the Bureau of Land Management, [Marathon Oil] was obliged to take all necessary precautions to keep the Tribal C-23 well under control at all times and utilize and maintain materials and equipment necessary to insure the safety of operations, conditions and procedures. Defendant was also obliged to perform all operations and maintain equipment in a safe and workmanlike manner and to take all precautions necessary to provide adequate protection for the health and safety of life and the protection of property.

On May 10, 2002, Marathon Oil moved to dismiss the Complaint filed in the Shoshone and Arapahoe Tribal Court on the grounds that neither Mr. Johnston nor Marathon Oil is a resident of the Reservation, that neither party is a member of the Shoshone and Arapaho Tribes or any other Indian tribe, and that this dispute does not involve an issue which would confer jurisdiction to the Tribal Court. On August 19, 2002, the Tribal Court issued an Order denying Marathon Oil's Motion to Dismiss.

On August 26, 2002 Marathon Oil filed a Notice of Appeal along with a Motion to Stay Proceedings at the Trial Level pending a resolution of that interlocutory appeal. On May 8, 2003, the Shoshone and Arapaho Tribal Court of Appeals issued an Order Denying Interlocutory Appeal on the grounds that ?[t]he tribal law and order code contains no provision for interlocutory appeals such as the one in this case.? Accordingly and subsequently, Marathon Oil filed on June 2, 2003 its Answer in Shoshone and Arapaho Tribal Court.

Marathon Oil filed its Complaint for Declaratory Relief in this Court on June 3, 2003 alleging that Marathon Oil exhausted its remedies within the Shoshone and Arapaho Tribal Court and the Shoshone and Arapaho Tribal Court of Appeals, that the Shoshone and Arapaho Tribal Court does not have in personam jurisdiction over Marathon Oil Company, that the Shoshone and Arapaho Tribal Court does not have subject matter jurisdiction over Marathon Oil pursuant to this dispute, that this Court stay and enjoin the Shoshone and Arapaho Tribal Court proceedings during the pendency of this action, and that the Court award such further and additional relief as deemed just and equitable. As expected, on August 7, 2003 Mr. Johnston filed a Motion to Dismiss Complaint for Declaratory Relief pursuant to Rule 12(b)(1), Rule 12(b)(6), and Rule 12(b)(7) contending that Marathon Oil failed to exhaust its remedies in Shoshone and Arapaho Tribal Court; that this Court lacks jurisdiction over the subject matter until or unless the Shoshone and Arapaho Tribal Court of Appeals issues a final order; that none of the exceptions to the exhaustion rule apply in this case; and that Marathon Oil failed to name an indispensable party.

STANDARD OF REVIEW

*2 Because tribal exhaustion is a matter of comity, and not a jurisdictional prerequisite, dismissal under Rule 12(b)(1) is inappropriate. Petrogulf Corp. v. Arco Oil & Gas Co., 92 F.Supp.2d 1111, 1114 (D.Colo.2000) (citing Iowa Mutual Insurance Co. v. LaPlanted, 480 U.S. 9, 16 n. 8, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987)). Further, Rule 12(b)(6) is not the proper vehicle through which to address the tribal exhaustion rule because dismissal pursuant to that rule is with prejudice, and the Tenth Circuit has held that ?[a] federal action may be abated or dismissed without prejudice to enable pursuit of tribal court remedies.? Petrogulf Corp., 92 F.Supp.2d at 1114 (quoting United States v. Chuska Development Corp., 55 F.3d 1491, 1492 (10^th Cir.1995)). Accordingly, the Court will construe the motion as one for dismissal without prejudice on the ground of abstention. Petrogulf Corp., 92 F.Supp.2d at 1114.

ANALYSIS

It being acknowledged by both parties that subject matter jurisdiction is the preeminent issue in this case, and the parties not fully having argued the in personam issue, the Court will address the motion to dismiss from the perspective of Mr. Johnston's subject matter jurisdiction argument.

I. Tribal Exhaustion Rule

The Supreme Court created the tribal exhaustion rule because of Congress's ?strong interest in promoting tribal sovereignty, including the development of tribal courts.? Petrogulf Corp., 92 F.Supp.2d at 1113 (quoting Smith v. Moffett, 947 F.2d 442, 444 (10^th Cir.1991)); Iowa Mutual Insurance Co., 480 U.S. at 21 (?A federal court must always show respect for the jurisdiction of other tribunals. Specifically, only in the most extraordinary circumstances should a federal court enjoin the conduct of litigation in a state court or a tribal court.?); National Farmers Union Insurance Co. v. Crow Tribe of Indians, 471 U.S. 845, 856, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985) (?Our cases have often recognized that Congress is committed to a policy of supporting tribal self-government and self-determination. That policy favors a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge.... Exhaustion of tribal court remedies, moreover, will encourage tribal courts to explain to the parties the precise basis for accepting jurisdiction, and will also provide other courts with the benefit of their expertise in such matters in the event of further judicial review.?). The rule provides that ?as a matter of comity, a federal court should not exercise jurisdiction over cases arising under its federal question or diversity jurisdiction, if those cases are also subject to tribal jurisdiction, until the parties have exhausted their tribal remedies.? Petrogulf Corp., 92 F.Supp.2d at 1113 (quoting Tillet v. Lujan, 931 F.2d 636, 640 (10^th Cir.1991)). For purposes of our analysis, the Court must first determine whether any of the four exceptions to the tribal exhaustion rule apply to the factual situation. First, the rule does not apply where an assertion of tribal court jurisdiction is motivated by harassment or made in bad faith. National Farmers Union Insurance Co., 471 U.S. at 856 n. 21. Second, the tribal court exhaustion rule is inapplicable when the tribal court action violates express jurisdictional prohibitions. Id. Third, the tribal court exhaustion rule does not apply if exhaustion would be futile due to an inadequate opportunity to challenge the tribal court's jurisdiction. Id. Fourth, the tribal court exhaustion rule does not apply ?when ... it is plain that no federal grant provides for tribal governance of nonmembers' conduct on land covered by ... [the] main rule [outlined in Montana v. United States ]? so the exhaustion requirement ?would serve no purpose other than delay.? Nevada v. Hicks, 533 U.S. 353, 369, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) (quoting Strate v. A-1 Contractors, 520 U.S. 438, 446, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997)).

*3 Secondly, the Court must analyze whether it should apply the tribal exhaustion rule ?based on [these] comity concerns for Indian tribes in maintaining their remaining sovereignty.? Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1507 (10^th Cir.1997). Three specific ?comity concerns? are advanced by proper application of the rule: (1) furthering congressional policy of supporting tribal self-government; (2) promoting the orderly administration of justice by allowing a full record to be developed in the tribal court; and (3) obtaining the benefit of tribal expertise if further review becomes necessary. Petrogulf Corp., 92 F.Supp.2d at 1113 (citing Kerr-McGee Corp., 115 F.3d at 1507). ?When the dispute at issue arises on the reservation, these comity concerns almost always dictate that the parties exhaust their tribal remedies before resorting to the federal forum.? Texaco Inc. v. Zah, 5 F.3d 1374, 1378 (10^th Cir.1993); see also Kerr-McGee, 115 F.3d at 1507 (?We have taken a strict view of the tribal exhaustion rule and have held that ?federal courts should abstain when a suit sufficiently implicates Indian sovereignty or other important interests.?) (citing Pittsburgh & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1542 (10^th Cir.1995)).

Finally, if the tribal exhaustion rule does apply, and if none of the propounded exceptions is relevant, the Court must determine whether Marathon Oil has, in fact, exhausted its tribal remedies.

A. Exceptions to the Exhaustion Rule

Truth be told, Marathon Oil contends the application of only one exception to the exhaustion rule: futility. In so doing, Marathon Oil insists that the jurisdictional issues have been tested, there is nowhere else to go regarding the issues, and making both the Tribal Court and the parties endure a trial and a second appeal would merely result in needless expenditure of time and money.

We disagree. In the present matter, the Shoshone and Arapaho Tribal Court of Appeals denied not the substance but the procedure of Marathon Oil's interlocutory appeal insofar as the Tribal Court of Appeals refrained from touching the merits of the jurisdictional claim. Specifically, the Shoshone and Arapaho Tribal Court of Appeals concluded, ?The tribal law and order contains no provisions for interlocutory appeals such as the one in this case. Only final orders of judgment can be appealed unless an order involves an injunction or the delivery, transfer or surrender of property.? In effect, Marathon Oil is left free to appeal the jurisdictional issue pending, but no sooner than, a final judgment by the Shoshone and Arapaho Tribal Court. It is our opinion that this does not amount to the futility of the exhaustion of tribal remedies because there is no indication, nor is there any evidence before this Court, that the Shoshone and Arapaho Tribal Court of Appeals has positioned itself in such as way as to render pointless the completion of the full adjudicative process within the tribal system.

*4 Accordingly, it is this Court's conclusion that none of the exceptions to the tribal exhaustion rule apply to the case at bar.

B. Application of the Exhaustion Rule

In the landmark case of Montana v. United States, the Supreme Court considered the notion of inherent sovereignty within the context of the sources and scope of the power of an Indian tribe to regulate hunting and fishing by non-Indians on land located within that tribe's reservation though owned in fee simple by non-Indians.

This Court most recently reviewed the principles of inherent sovereignty in United States v. Wheeler. In that case, noting that Indian tribes are ?unique aggregations possessing attributes of sovereignty over both their members and their territory,? the Court upheld the power of a tribe to punish tribal members who violate tribal criminal laws. But the Court was careful to note that, through their original incorporation into the United States as well as through specific treaties and statutes, the Indian tribes have lost many of the attributes of sovereignty. The Court distinguished between those inherent powers retained by the tribes and those divested:

?The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between and Indian tribe and nonmembers of the tribe .... These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by virtue of a tribe's dependent status.?

Stressing that Indian tribes cannot exercise power inconsistent with their diminished status as sovereigns, the Court [in Oliphant v. Suquamish Indian Tribe ] quoted Justice Johnson's words in his concurrence in Fletcher v. Peck-the first Indian case to reach this Court-that the Indian tribes have lost any ?right of governing every person within their limits except themselves.? Though Oliphant only determined inherent tribal authority in criminal matters, the principles on which it relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe. To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.

*5 Montana v. United States, 450 U.S. 544, 565-66, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1980) (citations omitted).

Seventeen years later, in Strate v. A-1 Contractors, the Supreme Court concerned itself with the following issue: when an accident occurs on a portion of a public highway maintained by the State of North Dakota under a federally granted right-of-way over Indian reservation land, may tribal courts entertain a civil action against an allegedly negligent driver and the driver's employer, neither of whom is a member of the tribe? 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997). Answering this question in the negative, the Supreme Court of the United States clarified its holding in Montana with regard to tribal court jurisdiction over nonmembers:

Our case law establishes that, absent express authorization by federal statute or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited circumstances. In Oliphant v. Suquamish Tribe, the Court held that Indian tribes lack criminal jurisdiction over non-Indians. Montana v. United States, decided three years later, is the pathmarking case concerning tribal civil authority over nonmembers. Montana concerned the authority of the Crow Tribe to regulate hunting and fishing by non-Indians on lands within the Tribe's reservation owned in fee simple by non-Indians. The Court said in Montana that the restriction on tribal criminal jurisdiction recognized in Oliphant rested on principles that support a more ?gerenal propositions.? In the main, the Court explained, ?the inherent sovereign powers of an Indian tribe?-those powers a tribe enjoys apart from express provision by treaty or statute-?do not extend to the activities of nonmembers of the tribe.? The Montana opinion added, however, that in certain circumstances, even where Congress has not expressly authorized it, tribal civil jurisdiction may encompass nonmembers[.]

Montana thus described a general rule that, absent a different congressional direction, 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. The Montana Court recognized that the Crow Tribe retained power to limit or forbid hunting or fishing by nonmembers on land still owned by or held in trust for the Tribe. The Court held, however, that the Tribe lacked authority to regulate hunting and fishing by non-Indians on land within the Tribe's reservation owned in fee simple by non-Indians.

Strate v. A-1 Contractors, 520 U.S. 438, 446, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997).

Not more than four years later, the Supreme Court again addressed the issue of tribal jurisdiction over nonmembers, and, concurrently, further sharpened the focus of its holding in Montana. In Nevada v. Hicks, Mr. Hicks, a member of the Fallon Paiute-Shoshone Tribes of western Nevada and a resident of the Tribes' reservation, sued state game wardens and the State of Nevada alleging trespass, abuse of process, and violation of constitutional rights when those wardens executed state-court and tribal-court warrants to search Mr. Hicks's home for evidence of an off-reservation crime. The tribal court held that it had jurisdiction over the tribal tort and federal civil rights claims, and the tribal appeals court affirmed. The State of Nevada and those state officials then sought, in federal district court, a declaratory judgment that the Tribal Court lacked jurisdiction over the claims. The district court granted summary judgment on that issue and held that the state game wardens would have to exhaust their qualified immunity claims in tribal court. In affirming, the Court of Appeals for the Ninth Circuit concluded that the fact that Mr. Hicks's home was located on tribe-owned reservation land is sufficient to support tribal jurisdiction over civil claims against nonmembers arising from their activities on that land.

*6 Writing for the majority, Justice Scalia begins with a general distinction between the reach of tribal regulatory jurisdiction and the reach of tribal adjudicatory jurisdiction indicating that it is legislative jurisdiction of the tribal court, and not the adjudicative jurisdiction, that is being considered. Nevada v. Hicks, 533 U.S. 353, 357-58, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) (? ?As to nonmembers ... a tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction....? That formulation leaves open the question whether a tribe's adjudicative jurisdiction over nonmember defendants equals its legislative jurisdiction. We will not have to answer that open question if we determine that the Tribes in any event lack legislative jurisdiction in this case.?) (quoting Strate v. A-1 Contractors, 520 U.S. 438, 453, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997)). The Court then continues with an explanation of its holding in Montana as it applies to tribe-owned land.

Both Montana and Strate rejected tribal authority to regulate nonmembers' activities on land over which the tribe could not ?assert a landowner's right to occupy and exclude.? Respondents and the United States argue that since Hicks's home and yard are on tribe owned land within the reservation, the Tribe may make its exercise of regulatory authority over nonmembers a condition of nonmembers' entry. Not necessarily. While it is certainly true that the non-Indian ownership status of the land was central to the analysis in both Montana and Strate, the reason that was so was not that Indian ownership suspends the ?general proposition? derived from Oliphant that ?the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe? except to the extent ?necessary to protect tribal self-government or to control internal relations.? Oliphant itself drew no distinctions based on the status of land. And Montana, after announcing the general rule of no jurisdiction over nonmembers, cautioned that ?[t]o be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands,? clearly implying that the general rule of Montana applies to both Indian and non-Indian land. The ownership status of land, in other words, is only one factor to consider in determining whether regulation of the activities of nonmembers is ?necessary to protect tribal self-government or to control internal relations.? It may sometimes be a dispositive factor. Hitherto, the absence of tribal ownership has been virtually conclusive of the absence of tribal civil jurisdiction; with one minor exception, we have never upheld under Montana the extension of tribal civil authority over nonmembers on non-Indian land. But the existence of tribal ownership is not alone enough to support regulatory jurisdiction over nonmembers.

Nevada, 533 U.S. at 359-60 (citations omitted). Agreeing with the ultimate decision though disagreeing with Justice Scalia's passing consideration of land status in the context of a tribal jurisdiction analysis, Justice O'Connor, with whom Justice Stevens and Justice Breyer joined, noted:*7 Although the majority gives a passing nod to land status at the outset of its opinion, that factor is not prominent in the Court's analysis. This oversight is significant. Montana recognizes that tribes may retain inherent power to exercise civil jurisdiction when the nonmember conduct ?threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.? These interests are far more likely to be implicated where, as here, the nonmember activity takes place on land owned and controlled by the tribe. If Montana is to bring coherence to our case law, we must apply it with due consideration to land status, which has always figured prominently in our analysis of tribal jurisdiction.

Nevada, 533 U.S. at 394 (O'Connor, J., concurring in part and concurring in the judgment) (citations omitted). Justice Scalia, distinguishing his current analysis from that necessary for an alternative set of facts, counters Justice O'Connor's concurrence noting, ?[W]e acknowledge that tribal ownership is a factor in the Montana analysis, and a factor significant enough that it ?may sometimes be ... dispositive.? We simply do not find it dispositive in the present case, when weighed against the State's interest in pursuing off-reservation violations of its laws.? Nevada, 533 U.S. at 370, 359 n. 2 (?Our holding in this case is limited to the question of tribal-court jurisdiction over state officers enforcing state law. We leave open the question of tribal court jurisdiction over nonmember defendants in general.?)

All of that said, it is not for this Court to determine at this point in time whether the Shoshone and Arapaho Tribal Court may properly exercise its jurisdiction over the present matter. The foregoing is helpful, though, in determining whether there exist important comity interests requiring the exhaustion of tribal remedies before a party, namely Marathon Oil, can seek redress in the federal courts.

It is clear that the Supreme Court finds significant, for tribal jurisdiction purposes, the ownership status of the land. In the case at bar, the alleged injury occurred on a portion of the Wind River Reservation wherein the Eastern Shoshone and Northern Arapahoe Tribes of the Reservation retained an ownership interest in their role as land lessors.^FN2 At this point, without a decision with regard to the appropriateness of the Tribal Court's jurisdiction, it is this Court opinion that there are definite comity concerns warranting the application of the tribal exhaustion requirement. Our analysis must continue, however. It is also this Court's opinion that the three concerns outlined in Kerr-McGee Corp., and subsequently embraced in Petrogulf Corp., also fall in favor of exhaustion.

FN2. The terms of the Lease provide, in pertinent part, as follows:

Lease of Premises

For and in consideration of the payments to Lessor herein provided and the covenants of Lessee herein contained, Lessor hereby grants, leases, and lets exclusively unto Lessee for the purposes of investigating, exploring, prospecting, drilling, mining for, and producing Oil and Gas, including all associated hydrocarbons produced in liquid or gaseous form, laying pipe lines, building roads, tanks, power stations, telephone lines, and other structures thereon to produce, save, take care of, treat, transport, market and own such products, and performing any required Reclamation Activities on the following described tracts of land situated in the Reservation, and more particularly described as follows[.]

As to the first factor, the Supreme Court has recognized even in cases curtailing tribal authority over non-Indians ?that tribes retain a core sovereign interest in protecting health and welfare of the tribe such that they may regulate non-Indians on all lands within the reservation.? Kerr-McGee Corp., 115 F.3d at 1508 (citing Strate, 520 U.S. at 458 and Montana, 450 U.S. at 566). While the facts of this case do not relate to either the exploitation of the physical land or to the health and safety of any specific tribal member, they do relate to the health and safety of tribal members in general. See Petrogulf Corp., 92 F.Supp.2d at 1115 (?[The Court] will not ignore the tribal exhaustion rule merely because Plaintiff chose not to include the Tribe in this action.?) The tribal courts, in our opinion, have an overwhelming interest in the workplace safety of corporations operating on tribal land because, invariably, significant numbers of tribal members may constitute the relevant workforce. We would miss the forest for the trees were we only to focus on the fact that this particular instance of alleged negligence involved a nonmember employee.

*8 The second factor, the orderly administration of justice, is more difficult to assess in the present factual scenario. Complexity notwithstanding, however, it is this Court's opinion that the administration of justice requires the exhaustion of tribal remedies. Permitting the Tribal Court to assess its own jurisdiction and potentially determine the merits of this case will minimize the possibility of a ?procedural nightmare.? In other words, Tribal Court adjudication avoids staying of one action in Tribal Court in order to resolve a second action in the United States District Court when, in all likelihood, that second action will endure the rigors of an appeal only to potentially return to the Tribal Court in which it began. See Petrogulf Corp., 92 F.Supp.2d at 1117. Reiterating the point that the Shoshone and Arapaho Tribal Court of Appeals has not reached the merits of the jurisdictional question, it makes procedural sense to this Court that the parties try the substance of the case at the Tribal Court level, revisit the jurisdictional issue at the appellate level, and return to this Court once remedies have been exhausted. In this manner, a full, and for lack of a better word ?linear,? record will facilitate federal court adjudication should a need remain.

The third factor also favors abstinence. First, to the extent that tribal law in any way influences this case, this Court's refraining will decrease the likelihood that certification will be necessary insofar as the Court will benefit from the Tribal Court's interpretation of tribal law and customs possibly and probably applicable to the factual situation. See Petrogulf Corp., 92 F.Supp.2d at 1118.

It is the Court's conclusion, then, that comity concerns favor application of the tribal exhaustion rule.

C. Marathon Oil's Exhaustion of Tribal Remedies

Arguing that it has exhausted all available tribal remedies with the denial of the interlocutory appeal, Marathon Oil contends that the submission of this case for trial before the Tribal Court and any subsequent appeal would subject the parties to the burdensome expense of both time and resources. As a result, Marathon Oil insists, as a matter of equity, that it would be in the best interest of all parties to have the jurisdictional issues resolved immediately.

Mr. Johnston, on the other hand, argues that the tribal remedies are far from exhausted because there is no order from the Tribal Supreme Court regarding the jurisdiction of the Shoshone and Arapahoe Tribal Court, and, noting that the Tribal Court is authorized at any time to dismiss the proceedings for lack of personal or subject matter jurisdiction, Marathon Oil will have the opportunity to move for summary judgment on jurisdictional grounds once the record is fully developed.

We agree that tribal remedies have not been exhausted. As alluded to, the Shoshone and Arapaho Tribal Court of Appeals denied not the substance but the procedure of Marathon Oil's interlocutory appeal. Iowa Mutual Insurance Co., 480 U.S. at 17 (?At a minimum, exhaustion of tribal remedies means that tribal appellate courts must have the opportunity to review the determinations of the lower tribal courts.?); Bank of Oklahoma v. Muscogee (Creek) Nation, 972 F.2d 1166, 1169 (10^th Cir.1992) (?The Supreme Court has defined exhaustion of tribal court remedies to include appellate review within the tribal court system.?). Accordingly, as indicated by the Shoshone and Arapaho Tribal Court of Appeals in its Order Denying Interlocutory Appeal, Marathon Oil is free to appeal the invocation of jurisdiction at the rendition of a final judgment.

II. Joinder of a Necessary Party

*9 As mentioned at the outset, Mr. Johnston has also moved for a dismissal pursuant to Rule 12(b)(7). Based on the foregoing finding, however, the Court finds it unnecessary to reach Mr. Johnston's joinder argument. This Court lacks subject matter jurisdiction in the current action irrespective of the propriety of the named defendant[s].

Accordingly, and for the foregoing reasons, it is hereby

ORDERED that the Motion to Dismiss Complaint for Declaratory Relief shall be, and is, GRANTED without prejudice.