The Honorable Frank J. Magill was an active judge at the time this case was

1

submitted and assumed senior status on April 1, 1997, before the opinion was filed.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-3618

___________

I n re: Otter Tail Power Company, *

*

Petitioner. *

__________

Petition and Appeal from

the

No. 96-3637 United States District

Court 

__________ for the District of North

Dakota.

Baker Electric, a North Dakota Rural *

Electric Cooperative Association, *

*

Appellee, *

*

v. *

*

Otter Tail Power Company, *

*

Appellant. *

___________

Submitted: January 14, 1997

 Filed:

 June 23, 1997

___________

Before McMILLIAN, WOLLMAN, and MAGILL, Circuit Judges. 1

___________
-2-
The Spirit Lake Sioux Tribe was previously known as the Devils Lake Sioux

2

Tribe.

-3-

MAGILL, Circuit Judge.

The Baker Electric Cooperative, Inc. (Baker) brought

this suit for injunctive relief and damages against the

Otter Tail Power Company (Otter Tail) in the North Dakota

state court to prevent Otter Tail from providing

electricity to property on trust land on the Fort Totten

Indian Reservation in North Dakota. Otter Tail removed

the case to the United States District Court for the

District of North Dakota. Subsequently, the district

court remanded the matter back to the North Dakota state

court, concluding that the district court lacked subject

matter jurisdiction. Otter Tail now appeals, and we

reverse.

I.

The Spirit Lake Sioux Tribe (Tribe) is a federally

2

recognized Indian Tribe which occupies the Fort Totten

Reservation (Reservation). The Reservation, created by

treaty in 1867, see Treaty with the Sioux-Sisseton and

Wahpeton Bands, 15 Stat. 505 (1867), consists of 245,141

acres located within Ramsey, Eddy, Nelson, and Benson

counties of North Dakota. Approximately three-fourths of

the reservation is held in fee by non-tribal members,

while approximately 63,000 acres are either held in trust

for the Tribe by the United States, owned by the Tribe in

fee simple, or owned by tribal members in fee simple.

See Devils Lake Sioux Indian Tribe v. North Dakota Pub.

Serv. Comm'n, 896 F. Supp. 955, 958 (D.N.D. 1995) (Devils

Lake).
-4-

Electricity consumers on the Reservation have

received electrical services from three utilities

companies: (1) Otter Tail, an investor-owned Minnesota

corporation; (2) Baker, a North Dakota cooperative; and

(3) Sheyenne Valley Electric Cooperative, Inc., also a

North Dakota cooperative. Controversy arose between

Otter Tail and the two cooperative utility companies in

1988 when the Tribe asked Otter Tail to provide 
-5-

electricity to Dakota Tribal Industries (DTI), a tribally

owned business located on trust land within the

Reservation. 

The North Dakota Public Service Commission (NDPSC) is

a state administrative body which regulates investorowned electric utilities in North Dakota. Pursuant to

North Dakota statute, NDCC 49-03.1, investor-owned

utilities must obtain a Certificate of Public Convenience

and Necessity (Certificate) from the NDPSC prior to the

construction, operation, or extension of a public utility

system. The NDPSC asserted that it had jurisdiction to

regulate the provision of electricity on the Reservation,

and Otter Tail attempted to obtain a Certificate from the

NDPSC allowing Otter Tail to extend its system to serve

DTI. Prior to obtaining a Certificate, however, Otter

Tail began providing electricity to DTI. 

Baker protested the application for a Certificate,

and the NDPSC held a hearing. The NDPSC also issued a

show cause order for Otter Tail's alleged contempt in

providing electricity without having obtained a

Certificate. In response, Otter Tail sought a writ of

prohibition in the North Dakota state court against the

NDPSC's show cause order, alleging that the NDPSC did not

have jurisdiction over the Reservation.

After initial proceedings in the North Dakota state

district court, the North Dakota Supreme Court assumed

jurisdiction. In Application of Otter Tail Power Co.,

451 N.W.2d 95 (N.D. 1990), the North Dakota Supreme Court

reached two alternative holdings. First, because the

Tribe was not a party to the proceedings, the court held
-6-

that Otter Tail did not have standing to argue that the

NDPSC's assertion of jurisdiction over the Reservation

would impair tribal sovereignty. See id. at 97-98.

Second, the court held that, assuming that Otter Tail did

have standing to pursue this argument, the NDPSC

nevertheless had regulatory jurisdiction over the entire

Reservation. See id. at 98. Accordingly, the NDPSC was

allowed to continue its contempt proceeding against Otter

Tail. See id. at 107.
-7-

Contrary to the North Dakota Supreme Court's decision

that the NDPSC had jurisdiction to regulate electrical

services on the Reservation, in July 1990 the Tribe

promulgated its own regulations, asserting that the Tribe

had exclusive authority to regulate electrical services

on the Reservation. See Baker Elec. Coop., Inc. v.

Chaske, 28 F.3d 1466, 1470 (8th Cir. 1994) (Baker).

Disregarding these tribal regulations, in August 1990 the

NDPSC ordered Otter Tail to stop servicing DTI. Both the

Tribe and Otter Tail brought suit against the NDPSC to

enjoin the state agency from interfering with the Tribe's

relationship with Otter Tail. See id.

The district court dismissed Otter Tail's suit on res

judicata grounds, finding that the North Dakota Supreme

Court's decision in Application of Otter Tail Power Co.

controlled Otter Tail's claims for relief. We reversed.

See Baker, 28 F.3d at 1475-76. On remand, we provided

extensive directions to the district court:

We remand with instructions that the district

court make detailed factual determinations and

set out its analysis in support of its legal

determinations. On remand, the district court

should consider the factors set out in Montana

v. United States, 450 U.S. 544 (1981), and its

progeny, to settle the core issue in this

dispute: whether the Tribe has the sovereign

authority to regulate electric services on the

Reservation, and whether the Tribe's authority

preempts that of NDPSC. The district court

should determine: first, whether Congress has

granted the Tribe the authority to regulate

electric services through the 1867 Treaty or

through subsequent congressional legislation;

second, if Congress has granted the Tribe
-8-

regulatory authority over electric services,

whether Congress later has abrogated that

regulatory authority; third, if Congress has

abrogated the Tribe's express regulatory

authority over electric services, whether the

Tribe retains inherent authority to regulate

electric services on the Reservation; fourth,

and finally, if the Tribe retains regulatory

authority over electric services, whether that

authority preempts NDPSC's authority.
-9-

Id. at 1476 (footnote omitted). See also id. at 1476-78

(detailing analysis to be conducted on remand by the

district court).

On remand, the district court held that the Tribe did

not have the exclusive authority to regulate the

provision of electrical services on the Reservation. See

Devils Lake, 896 F. Supp. at 961 ("The facts of this case

present no justification for the [Tribe's] exercise of

regulatory authority over the provision of electrical

service within the exterior boundaries of the

reservation. No showing has been made, and by inference

at least, can be made, that the health, welfare or safety

of any Tribal Member is in any way threatened under the

present system." (footnote omitted)). The district court

also held, however, "that where the service sought is to

a Tribal business located upon Trust land, the necessary

nexus between Tribal Interests and inherent sovereignty

is present." Id. The district court specifically

ordered:

1. That Otter Tail is entitled to summary

judgment on the issues between it and the North

Dakota Public Service Commission, to the effect

that the Tribe may by resolution or contract

determine who is to supply electrical service to

Tribal owned businesses located upon Indian

owned or trust lands, without regard to the rate

structure or other regulations of the North

Dakota Public Service Commission, and the Public

Service Commission is restrained from any

sanctions against Otter Tail, or any future

competitor, for providing such service. Nothing

herein shall limit the power or authority of the

North Dakota Public Service Commission except as

to such service, present or future.
-10-

2. That the North Dakota Public Service

Commission and utility parties are entitled to

judgment on the issue of the authority of the

Tribe to regulate the distribution of electrical

service within the exterior boundaries of the

reservation, except as specifically provided

above. The promulgation and enforcement of a

reservation wide utility regulation scheme,

without regard to land ownership, occupancy or

use is beyond the sovereign authority of the

tribe--under the fact specific situation present

here.
-11-

Id. at 961-62 (emphasis added).

Neither party appealed this decision. The Tribe did,

however, move the district court to modify its order. In

a subsequent order, filed April 3, 1995, the district

court denied this motion, stating:

Plaintiff's counsel has moved for a

modification of the judgment entered in this

file. The court granted summary judgment,

recognizing the sovereign authority of the Tribe

in certain limited situations where the

ownership and control of land coincided with the

operation of a tribal business or governmental

service.

In the motion, plaintiff asked that the

court extend the recognition of sovereign power

to authorize the Tribe to regulate the provision

of public utility type services to any usage by

a tribal member upon tribally owned or trust

lands. Although a logical extension of the

basis enunciated in the initial decision, the

broadening of the power to regulate to cover

individual tribal members living on trust land

goes beyond what the court views as the

necessary prerogative of sovereignty.

Order (Apr. 3, 1995) at 1-2, reprinted in Appellant's

App. at 36-37.

In the Fall of 1995, following the entrance of the

district court's orders, the Tribe asked Otter Tail to

provide electricity to several additional sites on trust

land. The Tribal Housing Authority (THA), a tribal

governmental agency which provides housing assistance,

requested Otter Tail to service certain accounts managed
-12-

or underwritten by the THA. These include the home of

Ms. Vivian Spotted Horse, a disabled tribal member who

has received extensive financial assistance from the THA

in moving, renovating, and heating her home.

In addition, the Tribe asked the Bureau of Indian

Affairs (BIA) to contract with Otter Tail to provide

electricity to the Four Winds School (School), a prekindergarten 
On October 23, 1996, the Bureau of Indian Affairs (BIA), pursuant to a contract 3

with the Tribe, agreed to pay $37,500 annually for the provision of electrical services

for the School. See Contract (Oct. 23, 1996); reprinted in Appellant's Supp. App. at

5. On November 13, 1996, the Tribe accepted a bid by Otter Tail to subcontract the

provision of electrical services for the School. See Spirit Lake Sioux Tribe Resolution

No. A05-97-053 (Nov. 13, 1996); reprinted in Appellant's Reply Add. at 1.

-13-

through twelfth grade primary and secondary education

institution built on trust lands. The buildings of the

school are owned by the BIA, which manages the School's

physical plant and leases the School to the Tribal school

board. The Tribal school board, which is a tribal

governmental agency, establishes the curricula for the

lower grades of the School. The School's ninth through

twelfth grade curricula are established by North Dakota

Independent School District No. 30 (ISD 30), a political

subdivision of the State of North Dakota. ISD 30

subleases part of the School from the Tribal school

district and operates a public high school on the site.3

Baker filed suit against Otter Tail in North Dakota

state court in 1996, seeking to enjoin Otter Tail from

servicing accounts on the Reservation which were not

specifically "tribal owned businesses located upon Indian

owned or trust lands." Compl. (Feb. 29, 1996) at 8, ¶ 21

(quotation omitted), reprinted in Appellant's App. at 46.

Baker also sought unspecified punitive damages from Otter

Tail. See id. Otter Tail removed the case to the

district court, and subsequently moved the district court

to dismiss the case without prejudice pending tribal

court adjudication.
-14-

The district court denied Otter Tail's motion, but

dismissed the case for lack of subject matter

jurisdiction. The district court stated:

Baker Electric is once again threatened by

the encroachment of Otter Tail upon the

distribution area which Baker considers to be

protected by the North Dakota Territorial

Integrity law. As in previous proceedings,

Otter Tail relies upon permission granted by the

Devils 
-15-

Lake Sioux Tribal Government, arguing that

Tribal Sovereignty trumps the jurisdiction of

the North Dakota Public Service Commission.

Baker Electric seeks to have the latest

foray thwarted through the issuance of

injunctive relief, through an order prohibiting

Otter Tail from furnishing power to the "Four

Winds School" and also to five elderly housing

units with individual meters and individual

payment responsibilities.

In a previous action, this court attempted

to define those tribal activities so essential

to the exercise of tribal sovereignty so as to

justify the right of the tribe to select a

supplier of electrical power in apparent

violation of the orders of the [NDPSC]. In

[Devils Lake,] that definition was posed as "the

operation of tribal owned businesses located

upon Indian owned or trust lands." [896 F.

Supp. at 961]. That opinion was issued after

remand from the circuit court of appeals and was

not appealed further.

Otter Tail argues that it must then follow

that a school building, owned by the federal

government, with primary grades under the

control of the Tribal Government and high school

grades under the control of a school board

organized and elected under North Dakota State

Law, with tax assessing authority, located upon

trust lands, must fall within the definition set

out above. It further contends that any

reservation resident receiving tribal housing

assistance in any form, living on [I]ndian owned

or trust lands, is equally within the sovereign

umbrella of Tribal authority.

Otter Tail further argues that the issue

should be decided first in Tribal Court and that

this court should not exercise jurisdiction
-16-

until after Tribal Court has determined the

width and breadth of tribal sovereignty. The

tribe is not a party to this proceeding and did

confer jurisdiction over this issue upon this

court in the previous proceeding by suing in

this court. Baker claims it is doing nothing

more than asking this court to cause enforcement

of the previous final judgment.

I see no choice available. Otter Tail may

indeed be ultimately correct in the spin which

it seeks to impart to the court's definition,

and 
-17-

very probably the protection afforded the

cooperatives through the territorial integrity

act will soon vanish with the gradual

legislative deregulation of the electric

generation and distribution industry. At this

moment however, the previously articulated

definition is the one I must follow, and, as

pure dicta, under it Baker is entitled to the

protection it seeks.

This court, however, is not the [NDPSC] and

has no interest in attempting to usurp the

regulatory authority of the [NDPSC].

Application of the territorial integrity law,

even with the complications of tribal

sovereignty, is the province of the [NDPSC]. I

sympathize with Baker's attempt to get the court

to enforce the previous ruling, but I do not

believe jurisdiction is present.

The application for a preliminary injunction

is denied and the action is ordered dismissed

for want of subject matter jurisdiction.

Mem. & Order (July 9, 1996) at 1-3, reprinted in

Appellant's App. at 113-15.

Baker sought a modification of this order, and Otter

Tail requested that the district court explain the basis

for its decision. In a subsequent order, the district

court modified its July 9 memorandum and order and

remanded the case to the North Dakota state court,

stating:

This action was originally filed by Baker

Electric in state court. Otter Tail Power

Company removed the matter to Federal Court.

Baker Electric is correct in pointing out that
-18-

the order appears to dismiss the original state

court action. This was not the intent of the

Court. The arguments of Otter Tail Power have

been reviewed. The Court is not persuaded to

change its original order and believes the

"basis of its decision" is reasonably

discernable.
In addition to this appeal, Otter Tail has filed with this Court a duplicative

4

petition for a writ of mandamus, praying for the same relief as in Otter Tail's appeal.

This Court has recently held that a challenge to a district court's remand of a removed

case back to state court on the ground of lack of subject matter jurisdiction is properly

raised on appeal. See Gaming Corp. of America v. Dorsey & Whitney, 88 F.3d 536,

542 (8th Cir. 1996). Accordingly, we shall consider the merits of Otter Tail's appeal,

and we shall dismiss Otter Tail's petition for a writ of mandamus.

-19-

Order (Sept. 5, 1996) at 1-2, reprinted in Appellant's

App. at 138-39. Otter Tail now appeals.4

II.
28 U.S.C. § 1447 (1994) limits this Court's jurisdiction over certain remand

5

orders by district courts in removed cases. Section 1447 provides, in relevant part:

(c) A motion to remand the case on the basis of any defect in removal

procedure must be made within 30 days after the filing of the notice of

removal under section 1446(a). If at any time before final judgment it

appears that the district court lacks subject matter jurisdiction, the case

shall be remanded....

(d) An order remanding a case to the State court from which it was

removed is not reviewable on appeal or otherwise, except that an order

remanding a case to the State court from which it was removed pursuant

to section 1443 of this title shall be reviewable by appeal or otherwise.

Although these provisions appear to limit this Court's jurisdiction in the instant case,

we have explained that:

[Section 1447's] broadly stated restriction has been construed narrowly,

however, and the Supreme Court has explained that only cases remanded

under 28 U.S.C. § 1447(c) are subject to this nonreviewability provision.

Quackenbush v. Allstate Insurance Company, 116 S. Ct. 1712, 1718,

1720-21 (1996); Thermtron Products, Inc. v. Hermansdorfer, 423 U.S.

336, 346 (1976).

Gaming Corp., 88 F.3d at 541 (footnote omitted). Because "[t]his case was not

remanded under 28 U.S.C. § 1447(c), . . . § 1447(d) does not bar review by an

appellate court." Id.

-20-

We review the district court's remand of a removed

case for lack of subject matter jurisdiction de novo.

See Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536,

542 (8th Cir. 1996). Upon review, we conclude that the 5

district court erred in 
-21-

remanding this matter to the state court.

"The propriety of removal to federal court depends on

whether the claim comes within the scope of the federal

court's subject matter jurisdiction." Peters v. Union

Pacific R.R. Co., 80 F.3d 257, 260 (8th Cir. 1996)

(citing 28 U.S.C. § 1441(b)). A 

case is properly removed to the federal court "only if it

could have been brought in federal court originally."

Id. 

The district court has "original jurisdiction of all

civil actions arising under the Constitution, laws, or

treaties of the United States." See 28 U.S.C. § 1331

(1994). A case presenting a federal question is,

therefore, properly removable to the district court. See

28 U.S.C. § 1441(b) ("Any civil action of which the

district courts have original jurisdiction founded on a

claim or right arising under the Constitution, treaties

or laws of the United States shall be removable without

regard to the citizenship or residence of the parties. .

. . "). Once a case is properly removed to a district

court, the "district court has no discretion to remand a

claim that states a federal question." Gaming Corp., 88

F.3d at 542. "The existence of a federal question is an

issue of law which we review de novo." Id.

"A federal question is raised in those cases in which

a well-pleaded complaint establishes either that federal

law creates the cause of action or that the plaintiff's

right 
-22-

to relief necessarily depends on resolution of a

substantial question of federal law." Peters, 80 F.3d at

260 (quotations and citation omitted). This well-pleaded

complaint rule

requires that a federal cause of action must be

stated on the face of the complaint before the

defendant may remove the action based on federal

question jurisdiction. A federal defense . . .

does not give the defendant the right to remove

to federal court.

Gaming Corp., 88 F.3d at 542-43 (citation omitted).

However, "[a] plaintiff's characterization of a claim as

based solely on state law is not dispositive of whether

federal question jurisdiction exists." Peters, 80 F.3d

at 260.

In its complaint, Baker challenges Otter Tail's right

to supply electrical services to certain tribal

operations without the benefit of a Certificate issued by

the NDPSC. See Compl. at 8, ¶ 21 (Mar. 4, 1993),

reprinted in Appellant's App. at 46. After recounting

the history of the litigation surrounding the delivery of

electrical services to the Reservation, Baker's complaint

specifically references the district court's prior

decision in this matter. See id. at 4, ¶ 10, reprinted

in Appellant's App. at 42. After providing its

interpretation of the district court's prior holding, id.

("The Court ruled that the State's regulatory authority

was superseded only in those cases involving the 'supply

of electrical service to tribal owned businesses located

upon Indian owned or trust lands.'" (citation omitted)

(emphasis added)), Baker's complaint alleges that Otter

Tail is servicing accounts that "are not 'tribally owned
-23-

businesses[,]' but, rather, are accounts directly within

the scope" of the NDPSC's authority. Id. at 6, ¶ 17,

reprinted in Appellant's App. at 44 (emphasis in

original). Baker's request for injunctive relief is

specifically premised on this alleged deviation by Otter

Tail from the terms of the district court's previous

order. See id. at 8, ¶ 21, reprinted in Appellant's App.

at 21.

To understand Baker's complaint, therefore, it is

necessary to examine the district court's prior order.

In reaching the holding upon which Baker relies, the

district court, 
-24-

pursuant to this Court's directive, explicitly analyzed

the effects of a United States treaty, various federal

statutes, and the federal common law of inherent tribal

sovereignty on the existence and extent of the Tribe's

authority, and the NDPSC's authority to regulate the

provision of electrical services on the Reservation. See

Devils Lake, 896 F. Supp. at 960-61. The district court

ultimately held that, while the Tribe did not have the

authority to regulate all of the electrical service

provisions on the Reservation, neither was the Tribe

wholly without regulatory authority. See id. at 961.

Conversely, the district court held that the NDPSC had

some regulatory authority over the Reservation, but that

its authority was not complete. Id. In reaching these

conclusions, the district court noted that its attempt

"to draw the line between permissible and non-permissible

exercises of Tribal powers . . . is somewhat of a

philosophical exercise." Id. Baker's instant complaint,

which "is nothing more than an action to enforce [the

district court's] prior judgment in Devils Lake Sioux

Tribe v. North Dakota Public Service Commission, 896 F.

Supp. [955] ([D.]N.D. 1995)," Baker Br. in Opp'n to Mot.

to Dismiss at 2 (May 3, 1996), reprinted in Appellant's

App. at 101, is therefore an attempt to more precisely

"draw the line" of Tribal regulatory authority.

Because "'tribal sovereignty is dependent on, and

subordinate to, only the Federal Government, not the

States,'" Baker, 28 F.3d at 1478 (quoting California v.

Cabazon Bank of Mission Indians, 480 U.S. 202, 207 (1987)

(other quotations omitted)), the extent of an Indian

Tribe's authority to regulate nonmembers on a

reservation, whether the source of that authority is

based on treaty rights, acts of Congress, or inherent
-25-

tribal sovereignty, is manifestly a federal question.

See National Farmers Union Ins. Cos. v. Crow Tribe, 471

U.S. 845, 852 (1985) ("The question whether an Indian

tribe retains the power to compel a non-indian property

owner to submit to the civil jurisdiction of a tribal

court is one that must be answered by reference to

federal law and is a 'federal question' under § 1331."

(footnote omitted)); see also Brendale v. Confederated

Yakima Indian Nation, 492 U.S. 408, 422-32 (1989)

(plurality opinion) (analyzing 
We note that, beyond the jurisdictional grant of 28 U.S.C. § 1331, the district 6

court may well have jurisdiction over this matter on the basis of diversity. See 28

U.S.C.A. § 1332 (West. Supp. 1997), 28 U.S.C. § 1441(b) (case may be removed to

federal court where there is complete diversity of parties and amount in controversy

exceeds $75,000); see also Appellee's Br. at 21 ("Baker would admit diversity

jurisdiction to exist which would allow removal . . . ."). In addition, because the

plaintiff's complaint is essentially an attempt to enforce a prior order of the district

court, see Baker Br. in Opp'n to Mot. to Dismiss at 2 (May 3, 1996), reprinted in

Appellant's App. at 101, the district court retained sufficient jurisdiction to ensure the

effectiveness of its continuing order. See Picon v. Morris, 933 F.2d 660, 662 (8th Cir.

1991) ("When a court issues an injunction, it automatically retains jurisdiction to

enforce it." (quotations, citation, and alterations omitted)).

-26-

limitations on Indian Tribe's regulatory authority in

light of United States treaties, federal statutes, and

federal common law).

Because Baker's complaint necessarily presents a

federal question, the district court had subject matter

jurisdiction in the instant case. See 28 U.S.C. § 1331.

Because the district court had subject matter

jurisdiction, the complaint was properly removed to the

district court. See 28 U.S.C. § 1441(b). Accordingly,

the district court erred in remanding this matter back to

the state court, and we reverse. See Gaming Corp., 88

F.3d at 542 ("A district court has no discretion to

remand a claim that states a federal question.").6

III.

Baker acknowledges that the district court has

subject matter jurisdiction in this case. See Appellee's

Br. at 21. Baker contends, however, that we should

construe the district court's remand in this case as an
-27-

exercise of abstention, and that we should affirm the

district court's decision to abstain in this matter. 
In Quackenbush v. Allstate Ins. Co., 116 S. Ct. 1712 (1996), the United States 7

Supreme Court limited the holdings of both In re Burns & Wilcox and Wolfson on

other grounds. The Quackenbush Court disagreed with the In re Burns & Wilcox

court's conclusion that abstention-based remand orders are not immediately appealable,

see 116 S. Ct. at 1720, and modified the Wolfson Court's conclusion that Burford

abstention is available in an action for damages. See id. at 1728.

-28-

"[A]bstention is an extraordinary and narrow

exception to the virtually unflagging obligation of

federal courts to exercise the jurisdiction given them."

In re Burns & Wilcox, Ltd., 54 F.3d 475, 477 (8th Cir.

1995) (quotations omitted). "Determining when to invoke

this narrow exception involves considerations of

federalism, comity, and judicial administration explored

in the Supreme Court's many and varied abstention cases."

Wolfson v. Mutual Benefit Life Ins. Co., 51 F.3d 141, 144

(8th Cir. 1995).7

The United States Supreme Court has identified

several circumstances in which "the considerations of

federalism, comity, and judicial administration . . .

may justify overriding the strong presumption in favor of

exercising federal jurisdiction." Wolfson, 51 F.3d at

145. Those branches of abstention relied on by Baker

include Railroad Comm'n of Tex. v. Pullman Co., 312 U.S.

496 (1941) (federal court may abstain where controlling

state law is unclear and a state court's clarification of

state law could made a federal court's federal

constitutional decision unnecessary); Younger v. Harris,

401 U.S. 37 (1971) (federal court must abstain from

enjoining state court criminal proceedings); and Burford

v. Sun Oil Co., 319 U.S. 315 (1943) (federal court may
-29-

abstain in deference to complex state administrative

procedure).

Baker's suit against Otter Tail raises important

questions of federal law requiring interpretation of

treaties, federal statutes, and the federal common law of

inherent tribal sovereignty. Cf. Baker, 28 F.3d at 1476.

Baker's suit does not, however, raise any issues of

constitutional law. Accordingly, "Pullman abstention

does not apply because no federal constitutional issues

have been raised." In re Burns & Wilcox, 54 F.3d at 
-30-

478. Nor could the district court abstain from assuming

jurisdiction over this matter on the basis of Younger.

"Younger abstention is inapplicable in the absence of an

ongoing state proceeding," id., and there is no ongoing

state proceeding in the instant case.

Finally, we conclude that Burford abstention, although the

most likely of the candidates offered by Baker, see id. (''Burford abstention applies

when a state has established a complex regulatory scheme supervised by state courts

and serving important state interests, and when resolution of the case demands

specialized knowledge and the application of complicated state laws." (quotations and

citations omitted)), is also inapplicable. The premise of

Burford abstention is that "a federal court should

abstain when the action before it involves matters of

state law best left to the state alone." Middle South

Energy, Inc. v. Arkansas Pub. Serv. Comm'n, 772 F.2d 404,

417 (8th Cir. 1985); see also Quackenbush, 116 S. Ct. at

1726 ("Ultimately, what is at stake is a federal court's

decision, based on a careful consideration of the federal

interests in retaining jurisdiction over the dispute and

the competing concern for the independence of state

action, that the State's interests are paramount and that

a dispute would best be adjudicated in a state forum."

(quotations and citation omitted)).

The question in the instant case is not what North

Dakota's regulatory law requires, but whether "federal

law . . . makes the proceeding or regulation at issue

beyond the state's authority." Middle South, 772 F.2d at

417. In this situation, "[t]here is no concern with

protecting a legitimate state regulatory scheme, and the

question becomes one of basic federal supremacy, which
In addition, the district court's dismissal of this matter for lack of subject matter 8

jurisdiction is antithetical to a decision to abstain, which implicitly acknowledges the

existence of jurisdiction. See Colorado River Water Cons. Dist. v. United States, 424

U.S. 800, 813 (1976) (abstention is a decision of the district court to "decline to

exercise or postpone the exercise of its jurisdiction" (quotations and citation omitted)).

We believe that the district court was capable of enunciating the basis of its decision

to remand, and we do not choose to interpret the district court's holding contrary to the

explicit terms of that holding.

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does not turn on local factors or local expertise." Id.

(citations omitted). Accordingly, we do not believe that

there is any basis for construing the district court's

decision to remand for the lack of subject matter

jurisdiction as a decision to abstain.8
In Devils Lake, the district court held that, while the Tribe did not have the

9

exclusive authority to regulate the distribution of electricity on the Reservation, it did

have exclusive authority to "determine who is to supply electrical service to Tribal

owned businesses located upon Indian owned or trust lands . . . ." 896 F. Supp. at 961.

In a subsequent order, the district court declined to "extend the recognition of sovereign

power to authorize the Tribe to regulate the provision of public utility type services to

any usage by a tribal member upon tribally owned or trust lands." Order at 2 (April 3,

1995), reprinted in Appellant's App. at 37. The instant case presents the unsettled

question of whether the Tribe, or North Dakota, has the authority to regulate the

provision of electrical services to certain Tribal operations involving the delivery of

governmental services.

In its decision dismissing this case, the district court stated, in "pure dicta," that

"Baker is entitled to the protection it seeks." Mem. Op. at 3 (July 9, 1996), reprinted

in Appellant's App. at 115. This statement seems at odds with the court's declaration

in the same memorandum opinion that "Otter Tail may indeed be ultimately correct in

the spin which it seeks to impart to the" district court's previous determination. Id. at

2-3, reprinted in Appellant's App. at 114-15. We presume that these contradictory

statements were mere musings, and were not intended to telegraph a premature decision

in this matter. If we were similarly permitted to muse, also as a matter of pure dicta,

we would note that the ability of an Indian Tribe to generate revenues is vital to Tribal

interests--and thus an area of heightened sovereignty--because such revenues are

necessary for the provision of Tribal services. Cf. Merrion v. Jicarilla Apache Tribe,

455 U.S. 130, 137 (1982) ("The power to tax is an essential attribute of Indian

sovereignty because it is a necessary instrument of self-government and territorial

management. The power enables a tribal government to raise revenues for its essential

services."). Baker's apparent argument that an Indian Tribe would have a greater

sovereignty interest in exclusively regulating the provision of electrical services to a

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IV.

For the foregoing reasons, we reverse the district

court's dismissal of this action for lack of subject

matter jurisdiction. We remand this matter back to the

district court for a decision on the merits of Baker's

complaint against Otter Tail.9
Tribal business--which generates income which allows the distribution of Tribal

services--than to a Tribal housing agency--which directly provides Tribal services--

therefore strikes us as somewhat counterintuitive.

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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.