FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROSS ATWOOD, 

Plaintiff-Appellant, No. 06-35299

v. D.C. No.

FORT PECK TRIBAL COURT  CV-05-00165-RFC

ASSINIBOINE AND SIOUX TRIBES; and OPINION LINDA L. FLYNN HANSON,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Montana

Richard F. Cebull, District Judge, Presiding

Submitted November 6, 2007*

Seattle, Washington

Filed January 18, 2008

Before: William C. Canby, Jr., Susan P. Graber, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Graber

*The panel unanimously finds this case suitable for decision without

oral argument. Fed. R. App. P. 34(a)(2). 

691
COUNSEL

J. Gregory Tomicich, Billings, Montana, for the plaintiffappellant. 

Ryan C. Rusche, Poplar, Montana, and Carol C. Johns, Wolf

Point, Montana, for the defendants-appellees.

OPINION

GRABER, Circuit Judge: 

This case involves a custody dispute concerning an Indian

child, Lexie. After the untimely death of Lexie’s mother,

Lexie’s maternal aunt, Defendant Linda L. Flynn Hanson,

sought custody through Defendant Fort Peck Tribal Court

(“Tribal Court”). The Tribal Court granted temporary custody

to Lexie’s maternal grandmother pending the outcome of the

custody dispute. Lexie’s non-Indian father, Plaintiff Ross

Atwood, then brought this action in federal district court,

challenging the jurisdiction of the Tribal Court and alleging

a substantive due process violation. The district court dismissed the case, relying on the domestic relations exception

to subject matter jurisdiction and on Plaintiff’s failure to

exhaust tribal court remedies. 

ATWOOD v. FORT PECK TRIBAL COURT 693
We hold that the “domestic relations exception,” a doctrine

divesting the federal courts of jurisdiction, applies only to the

diversity jurisdiction statute, 28 U.S.C. § 1332, and that the

district court erred by applying the domestic relations exception because federal question jurisdiction exists in this case

under 28 U.S.C. § 1331. We affirm the district court’s dismissal nonetheless, because Plaintiff failed to exhaust tribal

court remedies.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff and Lexie’s mother never married. In late 1997,

when Lexie was two years old, Plaintiff filed a petition for

custody in the Tribal Court. After a hearing, the Tribal Court

entered a custody agreement for Lexie on February 20, 1998.

That agreement granted the parents “joint legal custody of the

child, with the Mother to have physical custody, and the

Father having [specified visitation rights].” The agreement

also stated that “the Fort Peck Tribal Court, Fort Peck Indian

Reservation shall continue to have jurisdiction over this matter.” 

On July 16, 2005, Lexie’s mother died, and Lexie was

taken to stay with her maternal grandmother. Lexie’s maternal

aunt, Defendant Hanson, thereafter petitioned the Tribal Court

for custody of Lexie.1 On September 23, 2005, that court

ordered that Lexie remain in the custody of her maternal

grandmother pending the outcome of the petition. Lexie

remains in the physical custody of her maternal grandmother,

and the custody case remains pending before the Tribal Court.

On October 7, 2005, two weeks after the Tribal Court

issued its order, the Thirteenth Judicial District Court of Mon1The record is not entirely clear on the status (Indian or non-Indian) of

Defendant Hanson and of Lexie’s maternal grandmother. Determination of

those factual questions is unnecessary to the resolution of the issue before

us. 

694 ATWOOD v. FORT PECK TRIBAL COURT
tana granted immediate custody of Lexie to Plaintiff. The

state court’s order shows that the state court was aware of the

1998 custody agreement, but gives no indication that it was

aware of the Tribal Court’s recent order. According to the

federal district court in this case, “[a]pparently, the Thirteenth

Judicial District Court terminated enforcement upon learning

of the pending tribal court matter.” The parties do not dispute

that finding. 

On December 29, 2005, Plaintiff filed a complaint in federal district court. The complaint alleges that the Tribal

Court’s order violates his substantive due process right to parent his child and that Defendant Hanson lacks standing in

Tribal Court. Plaintiff sought injunctive relief, specifically, an

order requiring that Lexie’s grandmother return Lexie to him,

an order divesting the Tribal Court of jurisdiction, and an

award of custody. The complaint alleges both federal question

jurisdiction and diversity jurisdiction. 

On March 8, 2006, the district court granted Defendants’

motion to dismiss the complaint. The district court held that

the domestic relations exception divested it of jurisdiction

and, in the alternative, that it would choose to abstain from

intervening in a domestic relations matter that was pending in

a tribal court. Plaintiff timely appealed. 

STANDARD OF REVIEW

We review de novo whether we have subject matter jurisdiction. Schnabel v. Lui, 302 F.3d 1023, 1029 (9th Cir. 2002).

We also review de novo “[w]hether exhaustion of tribal court

remedies is required.” Boozer v. Wilder, 381 F.3d 931, 934

(9th Cir. 2004).

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DISCUSSION

A. Subject Matter Jurisdiction and the “Domestic

Relations Exception” 

[1] Plaintiff’s complaint alleges that “[t]he maternal aunt

has no standing [in Tribal Court] to petition for custody of the

child” and that the Tribal Court’s order is “a substantive violation of Plaintiff’s constitutional right to parent his child.” In

other words, Plaintiff alleges that “a tribal court has exceeded

the lawful limits of its jurisdiction.” Nat’l Farmers Union Ins.

Cos. v. Crow Tribe of Indians, 471 U.S. 845, 853 (1985).

“Non-Indians may bring a federal common law cause of

action under 28 U.S.C. § 1331 to challenge tribal court jurisdiction.” Boozer, 381 F.3d at 934 (citing Nat’l Farmers, 471

U.S. at 850-53). Federal courts therefore have subject matter

jurisdiction under the federal question jurisdiction statute, 28

U.S.C. § 1331, because the case arises under federal common

law.2 Nat’l Farmers, 471 U.S. at 853. 

[2] Both in his complaint and before the district court,

Plaintiff asserted subject matter jurisdiction on two grounds:

federal question jurisdiction, 28 U.S.C. § 1331, and diversity

jurisdiction, 28 U.S.C. § 1332. The district court expressly

declined to decide “whether this Court has federal question or

diversity jurisdiction” and held that, regardless, the “domestic

relations exception to federal jurisdiction” applied. The

Supreme Court has long recognized that, when the relief

sought relates primarily to domestic relations, a doctrine

referred to as the domestic relations exception divests federal

courts of jurisdiction. See, e.g., In re Burrus, 136 U.S. 586

(1890); Barber v. Barber, 62 U.S. (21 How.) 582 (1858).

2Because we have subject matter jurisdiction under § 1331, we need not

determine whether an alternative basis for jurisdiction also exists. See

Boozer, 381 F.3d at 934 n.2 (holding that jurisdiction exists under federal

common law and declining to address the plaintiff’s alternative jurisdictional theory). 

696 ATWOOD v. FORT PECK TRIBAL COURT
Plaintiff argues that the domestic relations exception does not

apply in this case, because subject matter jurisdiction exists

under the federal question jurisdiction statute, § 1331, and the

domestic relations exception applies only to the diversity

jurisdiction statute, § 1332. We agree. 

The Supreme Court discussed the nature of the domestic

relations exception at length in Ankenbrandt v. Richards, 504

U.S. 689 (1992). The Court traced the history of the exception

and concluded, first, that the exception is not of constitutional

dimension. Id. at 695. That is, “the Constitution does not

exclude domestic relations cases from the jurisdiction otherwise granted by statute to the federal courts.” Id.

But, the Court held, the diversity jurisdiction statute does

exclude such cases. In reasoning to that conclusion, the Court

examined the text and history of the diversity jurisdiction statute. Id. at 698. The Court held that the exception derived from

Congress’ intent to exclude domestic relations cases from the

predecessor to 28 U.S.C. § 1332. Id. at 700. When Congress

later amended the diversity statute, it meant to leave in place

the domestic relations exception. Id. at 700-01. The Court

concluded that, in cases falling within the scope of the exception to § 1332, federal courts lack jurisdiction. Id. at 701-03.

[3] In sum, Ankenbrandt held that the domestic relations

exception was not of constitutional dimension, but rested on

Congress’ intent in enacting the diversity jurisdiction statute,

28 U.S.C. § 1332. Although Ankenbrandt did not address

whether the exception applies to the federal question jurisdiction statute, 28 U.S.C. § 1331, the Court’s reasoning plainly

does not apply to that statute. We therefore join the Fourth

and Fifth Circuits in holding that the domestic relations

exception applies only to the diversity jurisdiction statute. See

United States v. Bailey, 115 F.3d 1222, 1231 (5th Cir. 1997);

United States v. Johnson, 114 F.3d 476, 481 (4th Cir. 1997);

see also Flood v. Braaten, 727 F.2d 303, 307 (3d Cir. 1984)

ATWOOD v. FORT PECK TRIBAL COURT 697
(reaching the same conclusion in a case pre-dating Ankenbrandt). 

Our holding today is driven by the Supreme Court’s reasoning in Ankenbrandt, but it also is consistent with our cases

pre-dating Ankenbrandt. See Csibi v. Fustos, 670 F.2d 134,

136 n.4 (9th Cir. 1982) (“Thus, domestic relations cases are

within the Article III judicial power of the federal courts, but

outside the power bestowed by Congress in the diversity statute.”). Of note, the First Circuit mistakenly identified the

Ninth Circuit as the only circuit to hold the opposite: that the

domestic relations exception applies to more than diversity

actions. See Mandel v. Town of Orleans, 326 F.3d 267, 271

& n.3 (1st Cir. 2003) (citing Thompson v. Thompson, 798

F.2d 1547, 1558 (9th Cir. 1986) (per curiam)). We disagree

with the First Circuit’s characterization of Thompson. In that

case, we looked to the policies underlying the domestic relations exception for guidance in answering a statutory interpretation question; we did not apply the exception at all. 798

F.2d at 1558. In any event, we clarify today that the domestic

relations exception applies only to the diversity jurisdiction

statute. 

[4] In conclusion, subject matter jurisdiction exists in this

case under § 1331 and federal common law. The domestic

relations exception does not apply. 

B. Exhaustion of Tribal Court Remedies

[5] In dismissing the case, the district court also relied on

the fact that Plaintiff had not exhausted tribal court remedies.

Under the doctrine of exhaustion of tribal court remedies,

relief may not be sought in federal court until appellate review

of a pending matter in a tribal court is complete. Iowa Mut.

Ins. Co. v. LaPlante, 480 U.S. 9, 17 (1987); see also Nat’l

Farmers, 471 U.S. at 856-57 (applying the doctrine); Boozer,

381 F.3d at 935-37 (same). “[T]he exhaustion rule . . . [i]s

‘prudential,’ not jurisdictional.” Strate v. A-1 Contractors,

698 ATWOOD v. FORT PECK TRIBAL COURT
520 U.S. 438, 451 (1997). As a matter of discretion, a district

court may either dismiss a case or stay the action while a

tribal court handles the matter. Nat’l Farmers, 471 U.S. at

857. Because the parties do not dispute that the custody issue

is still pending before the Tribal Court, the district court properly exercised its discretion and dismissed this case due to

Plaintiff’s failure to exhaust tribal court remedies. 

Although the Supreme Court has crafted narrow exceptions

to the exhaustion rule, none applies here. There has been no

showing that Defendant Hanson asserted tribal jurisdiction in

bad faith or that she acted to harass Plaintiff. Nevada v. Hicks,

533 U.S. 353, 369 (2001). Nor can it be said that requiring

exhaustion in this case “would serve no purpose other than

delay.” Id. (internal quotation marks omitted). 

Finally, it is not “plain” that tribal court jurisdiction is lacking. Id. (citing Strate, 471 U.S. at 459-60 & n.14). We have

equated that inquiry with whether jurisdiction is “colorable”

or “plausible.” Allstate Indem. Co. v. Stump, 191 F.3d 1071,

1075-76 (9th Cir. 1999). Here, tribal court jurisdiction almost

certainly is proper and therefore unquestionably is “plausible.” First, the 1998 custody agreement (the validity of which

Plaintiff does not challenge) states that the Tribal Court “shall

continue to have jurisdiction over this matter.” Second, Plaintiff availed himself of that forum voluntarily when the original custody dispute arose in 1997, which is at least a

“colorable” basis for jurisdiction, even though the current

tribal court case was not initiated by Plaintiff. See Smith v.

Salish Kootenai Coll., 434 F.3d 1127, 1140 (9th Cir.) (en

banc) (“We hold that a nonmember who knowingly enters

tribal courts for the purpose of filing suit against a tribal

member has, by the act of filing his claims, entered into a

‘consensual relationship’ with the tribe . . . .”), cert. denied,

126 S. Ct. 2893 (2006). Third, the suit primarily concerns

Lexie, who is a member of the tribe. Although the rights of

non-member Plaintiff are affected, it is not clear that that fact

alone would strip the Tribal Court of jurisdiction.

ATWOOD v. FORT PECK TRIBAL COURT 699
CONCLUSION

We hold that the domestic relations exception applies only

to the diversity jurisdiction statute, 28 U.S.C. § 1332. Because

federal courts have jurisdiction in this case under the federal

question jurisdiction statute, 28 U.S.C. § 1331, the district

court erred by applying the domestic relations exception.

Nonetheless, we affirm the district court’s dismissal of this

case because Plaintiff has not exhausted his tribal court remedies. 

AFFIRMED. 

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