The Honor able Frank J. Magill was an active judge at the time this case wa s 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 fro m the No. 96-3637 United States Distric t Court

__________ for the District of Nort h 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-T he Spirit Lake Sioux Tribe was previously known as the Devils Lake Siou x 2 Tribe.
-3- MAGILL, Circuit Judge.
The Baker Electric C ooperative, Inc. (Baker) brought this suit for injunctive relief and damages against th e Otter Tail Power Company (Otter Tail) in the North Dakota stat e court to prevent Otter Tail from providin g electricit y to property on trust land on the Fort Totten Indian Reservation in North Dakota. Otter Tail remove d the case to the United States District Court for th e Dist rict of North Dakota. Subsequently, the distric t court rema nded the matter back to the North Dakota state court, con cluding that the district court lacked subject
ma tter jurisdiction. Otter Tail now appeals, and w e reverse.

I.

The Sp irit Lake Sioux Tribe (Tribe) is a federall y 2
reco gnized Indian Tribe which occupies the Fort Totte n Reservation (Reservation). The Reservation, created b y trea tyin 1867, see Treaty with the Sioux-Sisseton an d Wahpeton B ands, 15 Stat. 505 (1867), consists of 245,141
acre s located within Ramsey, Eddy, Nelson, and Benso n counties of North Dakota. Approximately thre e-fourths of the res ervation is held in fee by non-tribal members , while approximately 63,000 acres are either h eld in trust for the Tribe by the United States, owned by the Tribe in fee s imple, or owned by tribal members in fee simple

. See Dev ils Lake Sioux Indian Tribe v. North Dakota Pub

. Serv. Comm'n , 896 F. Supp. 955, 958 (D.N.D. 1 995) ( Devils Lake ).-4-

Electricityconsumers on the Reservation hav e received electrical services from three utilitie s companies: (1) Otter Tail, an investor-owned Minnesot a corp oration; (2) Baker, a North Dakota cooperative; an d (3) Sheyenne Valley Electric Cooperative, Inc., also a Nort h Dakota cooperative. Controversy arose betwee n Otter Tail and the two cooperative utility companies i n 1988 when the Tribe asked Otter Tail to provide-5-

electricity to Dakota Tribal Industries (DTI) , a tribally
owne d business located on trust land within th e Reservation.

The North Dakota Public Service Commission (NDPSC) i s
a st ate administrative body which regulates investor

owne d electric utilities in North Dakota. Pursuant t o North Dakota statute, NDCC 49-03.1, investor-owne d utilities must obtain a Certificate of Public Convenience and Necessity (Certificate) from the NDPSC prior to th e construction, operation, or extension of a pu blic utility system. The NDPSC asserted that it had jurisdiction t o regulate the provision of electricity on the Reservation, and Otter Tail attempted to obtain a Certific ate from the NDPSC a llowing Otter Tail to extend its system to serv e DTI. Prior to obtaining a Certificate, however, Otte r Tail began providing electricity to DTI.

Ba ker protested the application for a Certificate , and t he NDPSC held a hearing. The NDPSC also issued a show ca use order for Otter Tail's alleged contempt i n providing electricity without having obtained a Certif icate. In response, Otter Tail sought a writ o f prohibition in the North Dakota state court against th e NDPSC's show cause order, alleging that the N DPSC did not have jurisdiction over the Reservation.

After initial proceedings in the North Dakota stat e dist rict court, the North Dakota Supreme Court assume d juri sdiction. In Application of Otter Tail Power Co. , 451 N.W.2d 95 (N.D. 1990), the North Dakota S upreme Court
reac hed two alternative holdings. First, because th e Tribe was not a party to the proceedings, the court held-6-

that Otter Tail did not have standing to argue that th e NDPSC's assertion of jurisdiction over the Reservatio n would impair tribal sovereignty. See id. at 97-98

. Second, the court held that, assuming that Ot ter Tail did have standing to pursue this argument, the NDPS C neverthele ss had regulatory jurisdiction over the entire Reservatio n. See id. at 98. Accordingly, the NDPSC was allowed to continue its contempt proceeding a gainst Otter Tail. See id. at 107.-7-

Contrary

to the North Dakota Supreme Court's decisio n that the NDPSC had jurisdiction to regulate electrica l servi ces on the Reservation, in July 1990 the Trib e promulgated its own regulations, asserting th at the Tribe had exclusive authority to regulate electrical service s on the Reservation. See Baker Elec. Coop., Inc. v

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

. Disregarding these tribal regulations, in Aug ust 1990 the NDPSC ordered Otter Tail to stop servicing DT I. Both the Tribe and Otter Tail brought suit against the NDPSC t o enjoin the state agency from interfering withthe Tribe's relationship with Otter Tail. See id.

The district court dismissed Otter Tail's suit on re s judi cata grounds, finding that the North Dakota Suprem e 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 provide d extensive directions to the district court:

We remand with instructions that the distric t court make detailed factual determinations an d set ou t its analysis in support of its lega l dete rminations. On remand, the district cour t shoul d consider the factors set out in Montan a v. United States , 450 U.S. 544 (1981), and it s proge ny, to settle the core issue in thi s dispu te: whether the Tribe has the sovereig n auth orityto regulate electric services on th e Reservation, and whether the Tribe's authorit y preem pts that of NDPSC. The district cour t shou ld determine: first, whether Congress ha s granted the Tribe the authority to regulat e el ectric services through the 1867 Treaty o r through subsequent congressional legislation ; secon d, if Congress has granted the Trib e-8-

re gulatoryauthority over electric services , whether Congress later has abrogated tha t reg ulatoryauthority; third, if Congress ha s ab rogated the Tribe's express regulator y authorityover electric services, whether th e Tribe retains inherent authority to regulat e electric services on the Reservation; fourth , an d finally, if the Tribe retains regulator y authorityover electric services, whether tha t authority preempts NDPSC's authority.-9-

Id. at 147 6 (footnote omitted). See also id. at 1476-78 (d etailing analysis to be conducted on remand by th e district court).

On remand, the district court held that the Tribe di d not have the exclusive authority to regulate th e provision of electrical services on the Reser vation. See Devils Lake , 896 F. Supp. at 961 ("The facts of this case pres ent no justification for the [Tribe's] exercise o f regul atoryauthority over the provision of electrica l
ser vice within the exterior boundaries of th e reservatio n. No showing has been made, and by inference at least, can be made, that the health, welfa re or safety of an y Tribal Member is in any way threatened under th e present system." (footnote omitted)). The di strict court also held, however, "that where the service sought is to a Tribal b usiness located upon Trust land, the necessary
nexus between Tribal Interests and inherent sovereignt y is present." Id. The district court specificall y ordered:

1. That Otter Tail is entitled to summar y judgment on the issues between it and the North Dakota Public Service Commission, to the effect that the Tribe may by resolution or contrac t determine who is to supply ele ctrical service to Tribal owned businesses located upon India n owned or trust lands , without regard to the rate structure or other regulations of the Nort h Dakota Public Service Commissi on, and the Public Service Commission is restrained from an y sanctions against Otter Tail, or any futur e competitor, for providing suchservice. Nothing herein shall limit the power o r authority of the North Dakota Public Service Co mmission except as to such service, present or future.-10-

2. T hat the North Dakota Public Servic e Comm ission and utility parties are entitled t o jud gment on the issue of the authority of th e Tribe to regulate the distribu tion of electrical ser vice within the exterior boundaries of th e re servation, except as specifically provide d above

. The promulgation and enforcement of a reservation wide utility regulation scheme , with out regard to land ownership, occupancy o r use i s beyond the sovereign authority of th e 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 it s order. In
a subse quent order, filed April 3, 1995, the distric t court denied this motion, stating:

Plaintiff's counsel has moved for a mo dification of the judgment entered in thi s file. The court granted summary judgment , recognizing the sovereign auth ority of the Tribe in certain limited situations where th e ownership and control of land coincided with the oper ation of a tribal business or governmenta l service.

In the motion, plaintiff asked that th e court extend the recognition of sovereign power to authorize the Tribe to regu late the provision of public utility type services to any usage by a tri bal member upon tribally owned or trus t lands

. Although a logical extension of th e bas is enunciated in the initial decision, th e broad ening of the power to regulate to cove r indi vidual tribal members living on trust lan d goes beyond what the court views as th e necessary prerogative of sovereignty.

Order ( Apr. 3, 1995) at 1-2, reprinted in Appellant' s App. at 36-37.

In th e Fall of 1995, following the entrance of th e dist rict court's orders, the Tribe asked Otter Tail t o provide el ectricity to several additional sites on trust land. The Tribal Housing Authority (THA), a triba l governmental agency which provides housing assistance , requested Otter Tail to service certain accounts managed-12-

or underwritten by the THA. These include the home o f Ms. Vivian Spotted Horse, a disabled tribal member wh o has receiv ed extensive financial assistance from the THA in moving, renovating, and heating her home.

In ad dition, the Tribe asked the Bureau of India n Af fairs (BIA) to contract with Otter Tail to provid e electri cityto the Four Winds School (School), a pre

kindergartenOn October 23, 1996, the Bureau of Indian Affairs (BIA), pursua nt 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 inAppellant'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 S chool. See Spirit Lake Sioux Tribe Resolution No. A05-97-053 (Nov. 13, 1996); reprinted inAppellant's Reply Add. at 1.
-13- throu gh twelfth grade primary and secondary educatio n institu tion built on trust lands. The buildings of th e school are owned by the BIA, which manages the School' s physical plant and leases the School to the T ribal school bo ard. The Tribal school board, which is a triba l governmental agency, establishes the curricula for th e lower g rades of the School. The School's ninth throug h twel fth grade curricula are established by North Dakot a Independen t School District No. 30 (ISD 30), a political subdivision of the State of North Dakota. ISD 3 0 suble ases part of the School from the Tribal schoo l district and operates a public high school on the site. 3

Baker f iled suit against Otter Tail in North Dakot a state court in 1996, seeking to enjoin Otter Tail fro m serv icing accounts on the Reservation which were no t 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 damage s from Otter Ta il. See id. Otter Tail removed the case to th e district court, and subsequently moved the di strict court to d ismiss the case without prejudice pending triba l court adjudication.-14-

The district court denied Otter Tail's motion, bu t dism issed the case for lack of subject matte r jurisdiction. The district court stated:

Baker Electric is once again threatened b y the encroachment of Otter Tail upon th e dis tribution area which Baker considers to b e protected by the North Dakota Territoria l Integrity law. As in previous proceedings , Otter Tail relies upon permiss ion granted by the Devils-15-

Lake Sioux Tribal Government, arguing tha t Tribal Sovereignty trumps the jurisdiction o f the North Dakota Public Service Commission.
Bak er Electric seeks to have the lates t foraythwarted through the issuance o f injunctive relief, through an order prohibitin g Otter Tail from furnishing power to the "Fou r Winds School" and also to five elderly housin g units with individual meters and individua l payment responsibilities.

In a previous action, this court attempte d to d efine those tribal activities so essentia l to the exercise of tribal sovereignty so as t o just ifythe right of the tribe to select a supplier of electrical power in apparen t violation of the orders of the [NDPSC]. I n [ Devils Lake ,] that definition was posed as "the operation of tribal owned businesses locate d upon Indian owned or trust lands." [896 F

. Sup p. at 961]. That opinion was issued afte r remand from the circuit court of appeals and was not appealed further.

Ot ter Tail argues that it must then follo w that a school building, owned by the federa l government, with primary grades under th e control of the Tribal Governme nt and high school grade s under the control of a school boar d orga nized and elected under North Dakota Stat e Law, with tax assessing authority, located upon trust lands, must fall within the definition set out a bove. It further contends that an y res ervation resident receiving tribal housin g assistance in any form, living on [I]ndian owned or trust lands, is equally within the sovereign umbrella of Tribal authority. Otte r Tail further argues that the issu e should be decided first in Tri bal Court and that this court should not exercise jurisdictio n-16-

until after Tribal Court has determined th e width and breadth of tribal sovereignty. Th e tribe is not a party to this proceeding and did con fer jurisdiction over this issue upon thi s court in the previous proceeding by suing i n thi s court. Baker claims it is doing nothin g more than asking this court to cause enforcement of the previous final judgment.

I see no choice available. Otter Tail ma y indee d be ultimately correct in the spin whic h it se eks to impart to the court's definition , and-17-

veryprobably the protection afforded th e cooperatives through the territorial integrit y act will soon vanish with the gradua l le gislative deregulation of the electri c gene ration and distribution industry. At thi s moment however, the previously articulate d defini tion is the one I must follow, and, a s pur e dicta, under it Baker is entitled to th e protection it seeks.
This court, however, is not the [NDPSC] and has n o interest in attempting to usurp th e re gulatoryauthority of the [NDPSC]

. Application of the territorial integrity law , even with the complications of triba l sovereignty, is the province of the [NDPSC]. I sympathize with Baker's attemp t to get the court to enf orce the previous ruling, but I do no t believe jurisdiction is present. The application for a preliminary injunc tion is de nied and the action is ordered dismisse d for want of subject matter jurisdiction.

Mem. & Order (July 9, 1996) at 1-3, reprinted i n Appellant's App. at 113-15.
Baker sought a modif ication of this order, and Otter Tail reque sted that the district court explain the basis for it s decision. In a subsequent order, the distric t court modified its July 9 memorandum and order an d remanded the case to the North Dakota state court , stating:

This action was originally filed by Bake r Elect ric in state court. Otter Tail Powe r Co mpanyremoved the matter to Federal Court

. Baker Electric is correct in pointing out tha t-18-

the order appears to dismiss the original state cou rt action. This was not the intent of th e Court. The arguments of Otter Tail Power hav e bee n reviewed. The Court is not persuaded t o change its original order and believes th e "basis of its decision" is reasonabl y discernable.Inaddition to this appeal, Otter Tail has filed with this Court a duplicativ e 4 petitionfor 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 gro und 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- Orde r (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 reman d 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 remova l pro cedure must be made within 30 days after the filing of the notice o f
remov al under section 1446(a). If at any time before final judgment i t appea rs that the district court lacks subject matter jurisdiction, the cas e shall be remanded.... (d) A n order remanding a case to the State court from which it wa s rem ovedis not reviewable on appeal or otherwise, except that an orde r remanding a cas e 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: [S ection 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 no t remanded under 28 U.S.C. § 1447(c), . . . § 1447(d) does not bar review by a n appellate court." Id.
-20- We review the district court's remand of a remove d
case fo r 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 o n whether the claim comes within the scope of the federa l
cour t's subject matter jurisdiction." Peters v. Unio n Pa cific 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 coul d have been brought in federal court originally. " Id.

The district court h as "original jurisdiction of all civi l actions arising under the Constitution, laws, o r treat ies of the United States." See 28 U.S.C. § 133 1 (19 94). 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 th e dist rict courts have original jurisdiction founded on a clai mor right arising under the Constitution, treatie s or laws of the United States shall be removable withou t regard to the citizenship or residence of the parties. .

. . "). Once a case is properly removed to a distric t court, the "district court has no discretion to remand a claim that states a federal question." Gaming Corp. , 88 F.3d at 54 2. "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 whic h a well-ple aded complaint establishes either that federal law cre ates the cause of action or that the plaintiff' s right-22-

to r elief 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 th e defendant may remove the actio n based on federal question jurisdiction. A federal defense . . . does not give the defendant the right to remove to federal court.
Gami ng Corp. , 88 F.3d at 542-43 (citation omitted)

. However, " [a] plaintiff's characterization of a claim as based s olely on state law is not dispositive of whethe r fede ral question jurisdiction exists." Peters , 80 F.3 d at 260.

In its complaint, Baker challenges Otter Tail's righ t to su pply electrical services to certain triba l operations without the benefit of a Certifica te issued by the NDPSC. See Compl. at 8, ¶ 21 (Mar. 4, 1993) , repr inted in Appellant's App. at 46. After recountin g the history of the litigation surrounding the delivery of electrical services to the Reservation, Baker 's complaint specificallyreferences the district court's prio r dec ision in this matter. See id. at 4, ¶ 10, reprinte d in Appellant's App. at 42. After providing it s interpretation of the district court's prior holding, id. ("Th e Court ruled that the State's regulatory authorit y was supers eded onlyin those cases involving the 'supply of electri cal service to tribal owned businesses located upon Indian owned or trust lands.'" (citation omitted ) (emphasis added)), Baker's complaint alleges that Otte r Tail is se rvicing accounts that "are not 'tribally owned-23-

businesses [,]' but, rather, are accounts directly within the sco pe" of the NDPSC's authority. Id. at 6, ¶ 17 , repr inted in Appellant's App. at 44 (emphasis i n orig inal). Baker's request for injunctive relief i s specifical ly premised on this alleged deviation by Otter Ta il from the terms of the district court's previou s order. See id. at 8, ¶ 21, reprinted in Appe llant's App. at 21.

To understand Baker's complaint, therefore, it i s nece ssaryto examine the district court's prior order

. In reaching the holding upon which Baker relies, th e district court,-24-

pursuant to this Court's directive, explicitly analyze d the effects of a United States treaty, various federa l statutes, and the federal common law of inherent triba l
sove reigntyon the existence and extent of the Tribe' s auth ority, and the NDPSC's authority to regulate th e provision of electrical services on the Reser vation. See Devils Lak e , 896 F. Supp. at 960-61. The district court ultima telyheld that, while the Tribe did not have th e auth orityto regulate all of the electrical servic e prov isions on the Reservation, neither was the Trib e wholly without regulatory authority. See id. at 961

. Conv ersely, the district court held that the NDPSC ha d some regul atory authority over the Reservation, but that its a uthority was not complete. Id. In reaching thes e conc lusions, the district court noted that its attemp t "to draw the line between permissible and non -permissible
exerc ises of Tribal powers . . . is somewhat of a philosophical exercise." Id. Baker's instan t complaint, which "is nothing more than an action to enforce [th e dist rict court's] prior judgment in Devils Lake Siou x Tribe v. North Dakota Public Service Commission , 896 F

. Supp. [955 ] ([D.]N.D. 1995)," Baker Br. in Opp'n to Mot. to Dism iss at 2 (May 3, 1996), reprinted in Appellant' s App. a t 101, is therefore an attempt to more precisel y "draw the line" of Tribal regulatory authority. Because "'tribal sovereignty is dependent on, an d subo rdinate to, only the Federal Government, not th e States,'" Baker , 28 F.3d at 1478 (quoting California v. Cabazon Bank of Mission Indians , 480 U.S. 202 , 207 (1987) (oth er quotations omitted)), the extent of an India n Tri be's authority to regulate nonmembers on a rese rvation, whether the source of that authority i s based o n treaty rights, acts of Congress, or inheren t-25-

triba l sovereignty, is manifestly a federal question

. See Nat ional Farmers Union Ins. Cos. v. Crow Tribe , 47 1 U.S. 84 5, 852 (1985) ("The question whether an India n tribe retains the power to compel a non-indian propert y owner to submit to the civil jurisdiction of a triba l
co urt is one that must be answered by reference t o federa l law and is a 'federal question' under § 1331. " (footnote omitted)); see also Brendale v. Confederate d Yaki ma Indian Nation , 492 U.S. 408, 422-32 (1989 ) (plurality opinion) (analyzingWe note that, beyond the jurisdictional grant of 28 U.S.C. § 1331, the district 6 courtmay well have jurisdiction over this matter on the basis of diversity. See 2 8 U.S.C.A. § 1332 (West. Supp. 1 997), 28 U.S.C. § 1441(b) (case may be removed to federal co urt where there is complete diversity of parties and amount in controvers y exce eds $75,000); see also Appellee's Br. at 21 ("Baker would admit diversity jurisdic tionto exist which would allow removal . . . ."). In addition, because th e plainti ff's complaint is essentially an attempt to enforce a prior order of the distric t court, see Baker Br. in Opp'n to Mot. to Dismiss at 2 (May 3, 1996), reprinted i n Appellant's App. at 101, the district court retained sufficient jurisdiction to ensure the effectiveness of its continuing order. Se e Picon v. Morris , 933 F.2d 660, 662 (8th Cir. 1991) ("When a court issues an injunction, it automatically retains jurisdiction t o enforce it." (quotations, citation, and alterations omitted)).
-26- limit ations on Indian Tribe's regulatory authority i n ligh t of United States treaties, federal statutes, an d federal common law).

Because Baker's complaint necessarily presents a fede ral question, the district court had subject matte r jurisdicti on in the instant case. See 28 U.S.C. § 1331. Bec ause the district court had subject matte r juri sdiction, the complaint was properly removed to th e distric t court. See 28 U.S.C. § 1441(b). Accordingly , the district court erred in remanding this ma tter back to the state court, and we reverse. See Gaming Corp. , 8 8 F.3 d at 542 ("A district court has no discretion t o remand a claim that states a federal question."). 6

III.

Bake r acknowledges that the district court ha s subject matter jurisdiction in this case. Se e Appellee's Br. at 21. Baker contends, however, that we shoul d constru e the district court's remand in this case as a n-27-

exercis e of abstention, and that we should affirm th e 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 Wolfsono n otherg rounds. The QuackenbushCourt disagreed with the In re Burns & Wilco x court's conclusion that abstention-based remand orders are n ot immediately appealable,
see 116 S. Ct. at 1720, and modified the WolfsonCourt's conclusion that Burfor d abstention is available in an action for damages. See id. at 1728.
-28- "[A]bstention is an extraordinary and narro w exc eption to the virtually unflagging obligation o f federal co urts to exercise the jurisdiction given them." In re Burns & Wilcox, Ltd. , 54 F.3d 475, 477 (8th Cir

. 1995) (quo tations omitted). "Determining when to invoke this narrow exception involves considerations o f federalism , comity, and judicial administration explored in the Supreme Court's many and varied absten tion cases." Wolfson v. Mutual Benefit Life Ins. Co. , 51 F .3d 141, 144 (8th Cir. 1995). 7

The United States Supreme Court has identifie d
sever al circumstances in which "the considerations o f fede ralism, comity, and judicial administration . .

. may justify overriding the strong presumption in favor of
exer cising federal jurisdiction." Wolfson , 51 F.3d a t 14 5. Those branches of abstention relied on by Bake r include Ra ilroad Comm'n of Tex. v. Pullman Co. , 312 U.S. 496 (1941) (federal court may abstain where controllin g state law is unclear and a state court's clar ification of stat e law could made a federal court's federa l constituti onal decision unnecessary); Younger v. Harris , 401 U .S. 37 (1971) (federal court must abstain fro m enjoining state court criminal proceedings); and Burford
v. Sun Oil Co. , 319 U.S. 315 (1943) (federal court ma y-29-

abst ain in deference to complex state administrativ e procedure).

Baker's suit against Otter Tail raises importan t ques tions of federal law requiring interpretation o f treaties, federal statutes, and the federal c ommon law of inherent tribal sovereignty. Cf. Baker , 28 F .3d at 1476. Baker 's suit does not, however, raise any issues o f constitutional law. Accordingly, " Pullman abstentio n does not apply because no federal constitutional issue s have been raised." In re Burns & Wilcox , 54 F.3d at-30-

478. Nor could the district court abstain from assuming juri sdiction over this matter on the basis of Younger

.
" Younger a bstention is inapplicable in the absence of an ongoing state proceeding," id. , and there is no ongoin g state proceeding in the instant case.
Finally, we conclude that Burford abstention , althoug h the mostlike ly of the candidates offered by Baker, see id. ('' Burfordabstention applie s when a state has established a complex regulatory scheme supervised by state courts andserving important state interests, and when resolution of the case demand s specialized knowledge and the appl ication of complicated state laws." (quotations and citations omitted)), is also inapplicable. The premise o f Burf ord abstention is that "a federal court shoul d abstain when the action before it involves matters o f state law best left to the state alone." Middle Sout h Energy, Inc. v. Arkansas Pub. Serv. Comm'n , 7 72 F.2d 404, 417 (8th C ir. 1985); see also Quackenbush , 116 S. Ct. at 1726 ("Ult imately, 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 stat e action, that the State's interests are paramo unt and that
a disp ute would best be adjudicated in a state forum. " (quotations and citation omitted)).

The q uestion in the instant case is not what Nort h Dakota's regulatory law requires, but whether "federa l law

. . . makes the proceeding or regulation at issu e beyond the state's authority." Middle South , 772 F.2d at 417. In this situation, "[t]here is no concern wit h protecting a legitimate state regulatory scheme, and the ques tion becomes one of basic federal supremacy, whic hIn addition, the district court's dismissal of this matter for lack of subject matter 8 jur isdiction is antithetical to a decision to abstain, which implicitly acknowledges the existence of jurisdiction. See C olorado River Water Cons. Dist. v. United States , 424 U.S. 800, 813 (1976) (abstention is a decision of the district court to "decline t o exercise or postpone the exercise of its j urisdiction" (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.
-31- does not t urn on local factors or local expertise." Id. (citations omitted). Accordingly, we do not believe that ther e is any basis for construing the district court' s dec ision to remand for the lack of subject matte r jurisdiction as a decision to abstain. 8In Devils Lake , the district court held that, while the Tribe did not have th e 9 exclusi ve authority to regulate the distribution of electricity on the Reservation, it did have ex clusive authority to "determine who is to supply electrical service to Triba l 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 recog nition of sovereign power to authorize the Tribe to regulate the provision of public utility type services to any usage by a tribal member upon t ribally owned or trust lands." Order at 2 (April 3, 1995), r eprinted inAppellant's App. at 37. The instant case presents the unsettle d questionof whether the Tribe, or North Dakota, has the authority to regulate th e provisio n of electrical services to certain Tribal operations involving the delivery o f governmental services. In its decision dismissing this case, the district court stated, in "pure dicta," that "Baker is e ntitled to the protection it seeks." Mem. Op. at 3 (July 9, 1996), reprinted in Appel lant's App. at 115. This statement seems at odds with the court's declaration in the same memoran dum opinion that "Otter Tail may indeed be ultimately correct in the spin w hich it seeks to impart to the" district court's previous determination. Id. at 2- 3, reprinted inAppellant'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 ar e necessary for the provision of Tribal services. Cf. Merrion v. Jicarilla Apache Tribe , 45 5 U.S. 130, 137 (1982) ("The power to tax is an essential attribute of India n sovereignty because it is a necessary instrument of self-government and territoria l 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 greate r sovereignt yinterest in exclusively regulating the provision of electrical services to a -32- IV.

For the foregoing reasons, we reverse the distric t
co urt's dismissal of this action for lack of subjec t matter jurisdiction. We remand this matter back to th e distri ct court for a decision on the merits of Baker' s complaint against Otter Tail. 9Trib al business--which generates income which allows the distribution of Triba l

ser vices--thanto a Tribal housing agency--which directly provides Tribal services-

- therefore strikes us as somewhat counterintuitive.
-33- A true copy.

Attest:

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

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