NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

KONIAG, INC., an Alaska corporation

and MICHAEL P. O’CONNELL,

Plaintiffs-Appellees,

 v.

KURT KANAM, individually and as

Tribal Attorney for the Native Village of

Karluk and ORBIE MULLINS,

individually and as Village of Karluk

Tribal Court Judge for the Karluk Tribal

Court for the Native Village of Karluk,

Defendants-Appellants.

No. 16-35632

D.C. No. 3:12-cv-00077-SLG

MEMORANDUM*

Appeal from the United States District Court

for the District of Alaska

Sharon L. Gleason, District Judge, Presiding

Submitted October 6, 2017** 

Seattle, Washington

Before: WARDLAW, CLIFTON, and OWENS, Circuit Judges.

FILED

OCT 20 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
Kurt Kanam and Orbie Mullins appeal from the district court’s judgment

holding that they do not have the right to exercise, retain, or threaten tribal court

jurisdiction over Appellees Koniag, Inc. and Michael O’Connell. We affirm.

Kanam and Mullins have forfeited their arguments. They failed to oppose

any of the relevant motions filed before the district court. Instead, they raise their

objections to the district court’s ruling on tribal-court jurisdiction for the first time

on appeal. Absent exceptional circumstances, we will not hear arguments on

appeal that were not raised before the district court. Brown v. Gen. Tel. Co. of

Cal., 108 F.3d 208, 210 n.1 (9th Cir. 1997); United States v. Oregon, 769 F.2d

1410, 1414 (9th Cir. 1985). Kanam and Mullins have not attempted to show

exceptional circumstances.

The tribal court’s lack of jurisdiction over Koniag and O’Connell here is

clear, in any event. Generally, “the inherent sovereign powers of an Indian tribe”

do not extend to nonmembers. Montana v. United States, 450 U.S. 544, 565

(1981). But a tribe may “regulate . . . the activities of nonmembers who enter

consensual relationships with the tribe or its members” on its reservation, “even on

non-Indian fee lands”; and “exercise civil authority over the conduct of nonIndians on fee lands within its reservation when that conduct threatens or has some

2
direct effect on the political integrity, the economic security, or the health or

welfare of the tribe.” Id. at 565-66. 

It is undisputed that Koniag and O’Connell are not members of the Native

Village of Karluk. As for the two Montana exceptions, the Alaska Native Claims

Settlement Act, 43 U.S.C. § 1601 et seq., eliminated all but one Indian reservation

in Alaska, the Annette Island Reserve of the Metlakatla Indians. Alaska v. Native

Vill. of Venetie Tribal Gov’t, 522 U.S. 520, 524 (1998). That reservation is not at

issue here. And, even if the consensual relationship exception applied, Kanam and

Mullins have not shown the existence of such a relationship. On its face, the

challenged merger involved Karluk Native Corporation, among others. Kanam and

Mullins have never explained the relationship between the Karluk Native

Corporation and the Native Village of Karluk. In sum, the Karluk Tribal Court

does not have jurisdiction over Koniag or O’Connell. 

The arguments that Kanam and Mullins raise for the first time on appeal do

not cure this defect. Kanam and Mullins are not entitled to sovereign immunity, as

the immunity of the tribe does not extend to its officials. Santa Clara Pueblo v. 

Martinez, 436 U.S. 49, 59 (1978). Because of the tribal court’s obvious lack of

jurisdiction, Koniag and O’Connell were not required to exhaust their claims in

tribal court. Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S.

3
845, 856 n.21 (1985). The doctrine of unclean hands, even if it were factually

applicable, does not create jurisdiction where it otherwise does not exist. See

generally Dollar Sys., Inc. v. Avcar Leasing Sys., Inc., 890 F.2d 165, 173 (9th Cir.

1989) (explaining the doctrine).

AFFIRMED. 

4