United States Court of Appeals

For the Eighth Circuit

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No. 14-1541

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Belcourt Public School District; Angel Poitra

lllllllllllllllllllll Plaintiffs - Appellants

v.

Ella Davis

lllllllllllllllllllll Defendant - Appellee

Turtle Mountain Tribal Court

lllllllllllllllllllll Defendant

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No. 14-1542

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Belcourt Public School District

lllllllllllllllllllll Plaintiff - Appellant

v.

Erica Malaterre

lllllllllllllllllllll Defendant - Appellee

Turtle Mountain Tribal Court

lllllllllllllllllllll Defendant
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No. 14-1543

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Belcourt Public School District; Chris Parisien

lllllllllllllllllllll Plaintiffs - Appellants

v.

Mike Nelson; Judy Nelson on behalf of their Minor Child S.N.

lllllllllllllllllllll Defendants - Appellees

Turtle Mountain Tribal Court

lllllllllllllllllllll Defendant

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No. 14-1545

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Belcourt Public School District; Roman Marcellais; School Board Members for

the Belcourt Public School District

lllllllllllllllllllll Plaintiffs - Appellants

v.

Bruce Allard; Martin Desjarlais; Jeff Laducer; Chad Marcellais; Robert St. Germaine

lllllllllllllllllllll Defendants - Appellees

Turtle Mountain Tribal Court

lllllllllllllllllllll Defendant

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___________________________

No. 14-1548

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Belcourt Public School District; Roman Marcellais; School Board Members for

the Belcourt Public School District

lllllllllllllllllllll Plaintiffs - Appellants

v.

Steve Herman

lllllllllllllllllllll Defendant - Appellee

Turtle Mountain Tribal Court

lllllllllllllllllllll Defendant

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Appeals from United States District Court 

for the District of North Dakota - Bismarck

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 Submitted: December 10, 2014

 Filed: May 15, 2015

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Before BYE, SMITH, and KELLY, Circuit Judges.

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SMITH, Circuit Judge.

Plaintiff-Appellants, Belcourt Public School District ("School District") and

certain of its employees, brought an action against Defendant-Appellees, members

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of the Turtle Mountain Band of Chippewa Indians ("Tribe") and the Turtle Mountain

Tribal Court ("Tribal Court"), seeking (1) a declaration that the Tribal Court lacks

jurisdiction over claims that the Tribe members filed against Plaintiff-Appellants in

Tribal Court, and (2) injunctions prohibiting the prosecution of the claims before the

Tribal Court. Plaintiff-Appellants also moved for default judgment against one of the

Tribe members. The district court denied the motion for default judgment and found

that the Tribal Court had jurisdiction. For the reasons stated herein, we affirm in part

and reverse in part. 

I. Background

The School District is a political subdivision of the State of North Dakota,

Bismarck Pub. Sch. Dist. #1 v. State By and Through N.D. Legislative Assembly, 511

N.W.2d 247, 251 (N.D. 1994), that operates within the exterior boundaries of the

Turtle Mountain Indian Reservation ("Reservation"). The Constitution of North

Dakota requires that the School District provide education to all children in North

Dakota, including children who are Indians or reside on Indian reservations. N.D.

Const. art. VIII, § 1 ("[P]ublic schools [ ] shall be open to all children of the state of

North Dakota . . . ."). 

The Tribe and School District have agreed to mutually share the responsibility

for educating students, both Indian and non-Indian, residing on the Reservation.

Accordingly, the Tribe and School District entered into agreements ("Plans of

Operations") in both 2006 and 2009 that provided the School District with exclusive

authority to administer the "day-to-day operations" of the Turtle Mountain

Community High School ("Grant High School"), subject to applicable laws. This

arrangement vested the School District with exclusive administrative authority over,

among other things, the supervision and employment of staff at Grant High School.1

Although both the School District and Grant High School operate within the

1

boundaries of the Reservation, it is unclear in the record what, if any, of their

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Several Tribe members filed suit against the School District and its employees

in Tribal Court, alleging defamation, excessive use of force, and multiple

employment-related claims. The Tribal Court ultimately dismissed the claims

pursuant to the United States Supreme Court's decision in Nevada v. Hicks, 533 U.S.

353 (2001), on the grounds that the Tribal Court lacked jurisdiction over the School

District and its employees for claims related to the employees' performance of their

official duties. On appeal, however, the Turtle Mountain Tribal Court of Appeals

("Tribal Court of Appeals") reversed the Tribal Court's decision, finding that Hicks

was not dispositive in part because the School Districtsigned the Plans of Operations,

thereby subjecting itself to Tribal jurisdiction. The School District and its employees 2

thereafter filed actionsin federal court, seeking (1) a declaration that the Tribal Court

lacks jurisdiction over the claims, and (2) injunctions prohibiting the Tribal members

from pursuing the claims and likewise prohibiting the Tribal Court from adjudicating

them. 

The School District and its employees later moved for default judgment in one

of the actions ("Nelson" action) based on the defendants' alleged failure to defend

against the claims. The district court exercised its discretion to deny the motion,

facilities or the land on which the facilities are located belong to the Tribe. Per the

Plans of Operations, however, it is clear that some but not all of the property used by

Grant High School is "federally owned."

Upon completion ofthe TribalCourt of Appeals' appellate review, all requisite

2

tribal remedies were exhausted. Strate v. A-1 Contractors, 520 U.S. 438, 449 (1997)

("[A] federal court should stay its hand until after the Tribal Court has had a full

opportunity to determine its own jurisdiction." (quotation omitted)). The School

District and its employees were not required to fully litigate the merits of the claims

before seeking review of the Tribal Court's jurisdiction in federal court. Strate, 520

U.S. at 459 n.14 (exhaustion not required when, among other things, it "would serve

no purpose other than delay").

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however, holding that, at least in that case, "default judgment is not the appropriate

avenue" to issue declaratory relief.

The School District and its employees then moved for summary judgment in

all of the actions. The district court ultimately denied the motions and concluded that

the Tribal Court, in fact, had jurisdiction over the claims. In so holding, the district

court found inapplicable the United States Supreme Court's decision in Montana v.

United States, 450 U.S. 544 (1981). It further found that, even if Montana were

applicable, the Tribal Court would nevertheless have jurisdiction because the School

District entered into the Plans of Operations with the Tribe.

II. Discussion

A. Tribal Court Jurisdiction

The School District and its employees argue on appeal that the Tribal Court

lacked jurisdiction over them and, consequently, that the district court erred in

denying their motions for summary judgment. We review de novo a district court's

denial ofsummary judgment. Solomon v. Petray, 699 F.3d 1034, 1038 (8th Cir. 2012)

(citation omitted). "The extent of tribal court subject matter jurisdiction over claims

against nonmembers of the Tribe is a question of federal law which we review de

novo." Attorney's Process & Investigation Servs., Inc. v. Sac & Fox Tribe of Miss. in

Iowa, 609 F.3d 927, 934 (8th Cir. 2010) (citation omitted). 

No federal statute or a treaty specifically provides the Tribal Court with

jurisdiction over the claims at issue in this case; therefore, the Tribal Court's

jurisdiction must arise from its "retained or inherent sovereignty." Atkinson Trading

Co., Inc. v. Shirley, 532 U.S. 645, 649–50 (2001). We analyze the contours of a tribal

court's inherent jurisdiction over nonmembers of the tribe within the framework and

principles set forth in Montana, which remains the "'pathmarking case'" on the

subject. Hicks, 533 U.S. at 358 (quoting Strate, 520 U.S. at 445). In Montana, the

Supreme Court addressed whether a tribe could prohibit hunting and fishing activities

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by non-Indians on reservation land owned in fee simple by non-Indians. As a general

matter, the Court held, "the inherent sovereign powers of an Indian tribe do not

extend to the activities of nonmembers of the tribe." 450 U.S. at 565 (emphases

added). The Court then noted, however, two relatively narrow exceptions to this

general rule:

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.

Id. at 565–66 (emphases added) (internal citations omitted). These two categories of 3

nonmember conduct that Indian tribes may regulate are commonly referred to as the

"Montana exceptions." TheCourt in Montana ultimately found that neither exception

provided the tribe with jurisdiction over non-Indians' hunting and fishing on nonIndian land. Id. at 566.

Given the general rule set forth and applied in Montana—that a tribe's inherent

sovereign powers do not vest it with jurisdiction over the activities of

nonmembers—the Tribal Court presumably does not have jurisdiction over the claims

asserted in this case. "The burden rests on the tribe" to establish that one of the

The TribalCourt'sjurisdiction cannot exceed the Tribe'sregulatory power. See

3

Strate, 520 U.S. at 453 ("As to nonmembers, we hold, a tribe's adjudicative

jurisdiction does not exceed its legislative jurisdiction."); Attorney's Process, 609

F.3d at 936 (tribal court jurisdiction "turns upon whether the actions at issue in the

litigation are regulable by the tribe" (quoting Hicks, 533 U.S. at 367 n.8)).

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Montana exceptions applies. Plains Commerce Bank v. Long Family Land & Cattle

Co., 554 U.S. 316, 330 (2008).

1. First Montana Exception

The School District agreed to provide educational servicesto studentsresiding

on the Reservation, as memorialized, at least in part, in the Plans of Operations. But

these agreements between the School District and the Tribe do not alone confer

jurisdiction on the Tribal Court under the first Montana exception. Notably, North

Dakota law specifies that a school district cannot "[a]uthorize an agreement that

enlarges or diminishes the jurisdiction over civil or criminal matters that may be

exercised by . . . tribal governments located in North Dakota." N.D. Cent. Code §

54–40.2–08. The agreements do not state that the School District intended to, or

represented that it could, deviate from North Dakota law.

Moreover, even assuming arguendo that the School District could agree to an

expansion of Tribal Court jurisdiction under North Dakota law, the first Montana

exception still would not provide the Tribal Court with jurisdiction. Indeed, in Hicks,

the Supreme Court elaborated on the first Montana exception and specified that,

"[r]ead in context, an 'other arrangement' is clearly another private consensual

relationship . . . ." 533 U.S. at 359 n.3 (holding that a tribal court lacked jurisdiction

over claims asserted against state officials who executed a search warrant on tribal

land to search for evidence of an off-reservation crime). To resolve lingering

ambiguities as to what constitutes an "other arrangement" under the first Montana

exception, the Court further stated that:

The [Montana] Court (this is an opinion, bear in mind, not a

statute) obviously did not have in mind States or state officers acting in

their governmental capacity;it was referring to private individuals who

voluntarily submitted themselvesto tribalregulatory jurisdiction by the

arrangements that they (or their employers) entered into. This is

confirmed by the fact that all four of the cases in the immediately

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following citation involved private commercial actors. See [Washington

v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134,

152 (1980)] (nonmember purchasers of cigarettes from tribal outlet);

[Williams v. Lee, 358 U.S. 217 (1959)] (general store on the Navajo

reservation); [Morris v. Hitchcock, 194 U.S. 384 (1904)] (ranchers

grazing livestock and horses on Indian lands "under contracts with

individual members of said tribes"); Buster v. Wright, 135 F. 947, 950

(8th Cir. 1905) (challenge to the "permit tax" charged by a tribe to

nonmembers for "the privilege . . . of trading within the borders").

Id. at 372 (emphasis added).

The Tribe members nevertheless contend that the requisite "consensual

relationship" existed under the first Montana exception because the School District

entered into contracts (that is, the Plans of Operations) with the Tribe. But they are

mistaken. The Ninth and Tenth Circuits have held that contractual agreements

between tribes and government entities do not constitute "consensual relationships"

within the meaning of the first Montana exception. In County of Lewis v. Allen, for

instance, the Ninth Circuit, en banc, held that a tribal court lacked jurisdiction over

a tribal member's civil claims against a politicalsubdivision of a state stemming from

his arrest on reservation land—even though the arrest was made pursuant to a specific

law enforcement contract between the state and the tribe. 163 F.3d 509, 514–16 (9th

Cir. 1998) (en banc). In so holding, the court noted that "Montana's exception for

suits arising out of consensual relationships has never been extended to contractual

agreements between two government entities. . . . [T]he Agreement between the tribe

and the state is not a "'consensual relationship' of the qualifying kind." Id. at 515

(quotation marks omitted) (quoting Strate, 520 U.S. at 457). Likewise, in MacArthur

v. San Juan County, the Tenth Circuit held that employment relationships that were

"contractual in nature" between a state's political subdivision and two tribe members

"were not 'private consensual relationships' . . . and [therefore] do not fall within the

first Montana exception." 497 F.3d 1057, 1071, 1074 (10th Cir. 2007).

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More recently, in Red Mesa Unified School District v. Yellowhair, a district

court reached the same conclusion in a case remarkably similar to this case. There,

two school districts operating on Indian reservations filed for declaratory and

injunctive relief in federal court to prohibit a tribal administrative tribunal from

deciding employment-related claims filed against the school districts. No.

CV-09-8071-PCT-PGR, 2010 WL 3855183, at *2 (D. Ariz. Sept. 28, 2010). The

court granted the relief and specifically found that the first Montana exception did not

apply—notwithstanding a lease agreement between the school districts and the

tribe—because the school districts "made the employment decisions at issue while

operating in their governmental capacities pursuant to their state

constitutionally-imposed mandate to operate a public school system within the

reservation boundaries." Id. at *3.

We agree with these well-reasoned decisions. The School District in this case

was clearly acting in its official capacity and, specifically, in furtherance of its

obligations under the Constitution of North Dakota to make public education "open

to all children of the state of North Dakota," see N.D. Const. art. VIII, § 1, when it

entered into the agreementsrelevant to this case. The agreementstherefore do not fall

within the ambit of the first Montana exception.

4

2. Second Montana Exception

Because there is no private consensualrelationship between the School District

and the Tribe, the Tribal Court will have jurisdiction only if the claims at issue

involve "conduct [that] threatens or has some direct effect on the political integrity,

the economic security, or the health or welfare of the tribe." Montana, 450 U.S. at

To be clear, we are not ruling out the possibility that a state and a tribe could

4

enter into an agreement that confersjurisdiction upon the tribe—such as an agreement

that expressly provides for such jurisdiction. But no such agreement is at issue in the

instant case.

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566. In conducting this analysis, we note at the outset that not every event that

impacts a tribe's political integrity, economic security, health, or welfare will

necessarily give rise to tribal court jurisdiction; indeed, a lax application or overly

broad reading ofthe second Montana exception would render meaningless Montana's

general rule that "the inherent sovereign powers of an Indian tribe do not extend to

the activities of nonmembers of the tribe." Id. at 565. The Court in Hicks emphasized

the necessarily narrow scope of the second Montana exception when it confirmed

that, "[w]here nonmembers are concerned, the 'exercise of tribal power beyond what

is necessary to protect tribal self-government or to control internal relations is

inconsistent with the dependent status of the tribes, and so cannot survive without

express congressional delegation.'" 533 U.S. at 359 (quoting Montana, 450 U.S. at

564); see also Plains Commerce Bank, 554 U.S. at 330 (noting that the Montana

exceptions "are limited ones, and cannot be construed in a manner that would

swallow the rule, or severely shrink it") (quotations omitted).

In Plains Commerce Bank, the Court further elucidated the circumstances

necessary for the second Montana exception to apply. There, the Court held that the

second Montana exception did not apply to a non-Indian bank's sale of land on a

tribal reservation to another non-Indian because:

The conduct must do more than injure the tribe, it must "imperil the

subsistence" of the tribal community. [Montana, 450 U.S. at 566]. One

commentator has noted that "th[e] elevated threshold for application of

the second Montana exception suggests that tribal power must be

necessary to avert catastrophic consequences." Cohen § 4.02[3][c], at

232, n.220.

Id. at 341 (emphases added).

5

Of course, the transaction at issue in Plains Commerce Bank involved land 5

that non-Indians owned in fee simple both before and after the transaction, and this

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The claims and alleged conduct at issue in this case clearly do not "imperil the

subsistence" of the Tribe, and Tribal Court jurisdiction is not "necessary to avert

catastrophic consequences." Other courts have found the second Montana exception

inapplicable to conduct that was either comparable or more detrimental to a tribe's

subsistence and well-being than the conduct alleged in this case.

6

court is aware that "[t]he ownership status of land" is "one factor to consider in

determining whether regulation of the activities of nonmembers is 'necessary to

protect tribal self-government orto control internalrelations.'" Hicks, 533 U.S. at 360.

As noted above, however, there is scant evidence in the record what, if any, land and

facilities relevant to this case were owned by the Tribe. Nevertheless, even if the

Tribe owned all of the land and facilities relevant to this case—which is not

supported by the record—Montana would still apply, see Attorney's Process, 609

F.3d at 935–41, and our analysis would not change for the reasons stated herein. 

See Evans v. Shoshone-Bannock Land Use Policy Comm'n, 736 F.3d 1298,

6

1305 (9th Cir. 2013) (holding that the second Montana exception did not apply to

non-Indian conduct that allegedly caused, among other things, "groundwater

contamination" and "improper disposal of construction debris"); MacArthur, 497 F.3d

at 1075 (holding that "[w]hile the Navajo Nation undoubtedly has an interest in

regulating employment relationships between its members and non-Indian employers

on the reservation, that interest is not so substantial in this case as to affect the

Nation's right to make its own laws and be governed by them"); Allen, 163 F.3d at

515–16 (9th Cir. 1998) (en banc) ("Having divested itself of sovereignty over the

very activities that gave rise to the civil claim, nothing in this case can be seen as

threatening self-government orthe political integrity, economic security or health and

welfare of the tribe. . . . Indian tribes or their members . . . may pursue their causes

of action in state or federal court."); Otter Tail Power Co. v. Leech Lake Band of

Ojibwe, No. 11-1070 DWF/LIB, 2011 WL 2490820, at *5 (D. Minn. June 22, 2011)

(holding that the second Montana exception did not apply to nonmember conduct that

would interfere with the tribe's "hunting, fishing, and gathering rights"); Dolgencorp

Inc. v. Miss. Band of Choctaw Indians, 846 F. Supp. 2d 646, 650 (S.D. Miss. 2011)

(holding that the second Montana exception did not apply to a case in which a

nonmember ofthe tribe allegedlymolested a minortribe member), aff'd, 746 F.3d 167

(5th Cir. 2014).

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In sum, the Tribe members have failed to carry their burden of establishing that

either of the Montana exceptions apply. We therefore hold that the Tribal Court

lacked jurisdiction over the Tribe members' claims. 

B. Default Judgment

The School District and its employees also contend that the district court erred

in not granting their motion for default judgment in the Nelson action. We review the

district court's decision for an abuse of discretion. Taylor v. City of Ballwin, Mo., 859

F.2d 1330, 1332 (8th Cir. 1988) (citation omitted).

"The Federal Rules of Civil Procedure commit the entry of a default judgment

against a party to the sound discretion of the trial court." F.T.C. v. Packers Brand

Meats, Inc., 562 F.2d 9, 10 (8th Cir. 1977) (per curiam) (citations omitted); see also

Fed. R. Civ. P. 55(b)(2). This court has recognized that default judgments are "not

favored by the law and should be a rare judicial act." In re Jones Truck Lines, Inc.,

63 F.3d 685, 688 (8th Cir. 1995) (citations and quotation marks omitted). Put simply,

there is a "judicial preference for adjudication on the merits." Johnson v. Dayton Elec.

Mfg. Co., 140 F.3d 781, 784 (8th Cir. 1998) (citations and quotation marks omitted).

There are various factors courts may consider when determining whether to

enter a default judgment, including:

[T]he amount of money potentially involved; whether material issues of

fact or issues of substantial public importance are at issue; whether the

default is largely technical; whether plaintiff has been substantially

prejudiced by the delay involved; and whether the grounds for default

are clearly established or are in doubt. Furthermore, the court may

consider how harsh an effect a default judgment might have; or whether

the default was caused by a good-faith mistake or by excusable or

inexcusable neglect on the part of the defendant.

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Briarpatch Ltd., L.P. v. Geisler Roberdeau, Inc., 513 F. Supp. 2d 1, 3 (S.D.N.Y.

2007) (alteration in original) (citation omitted). 

In light of these considerations and the judicial preference for adjudication on

the merits, we conclude that the district court did not abuse its discretion in denying

the motion for default judgment. In particular, we note that the scope of Tribal Court

jurisdiction was a central issue in each of the actions brought by the School District

and its employees—including the Nelson action—and that the district court issued its

opinion with respect to Tribal Court jurisdiction shortly after denying the motion for

default judgment. It was well within the district court's discretion to choose to resolve

all of the actions in the same order. 

III. Conclusion

For the foregoing reasons, and after thoroughly considering all of the parties'

contentions on appeal, we reverse the district court's decision with respect to Tribal

Court jurisdiction and remand for further proceedings. We affirm the district court's

denial of default judgment in the Nelson action.

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