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    MACARTHUR v. SAN JUAN HEALTH SERVICES DISTRICT
     
    	PUBLISH
    
    	UNITED STATES COURT OF APPEALS
    
    	TENTH CIRCUIT
    
    
    
    DR. STEVEN MACARTHUR; DR. NATHANIEL PENN; MICHELLE LYMAN; HELEN VALDEZ;
    CANDACE LAWS; PAUL KEITH; DOROTHY KEITH; LINDACACAPARDO; SUE BURTON; AMY
    TERLAAK; ALISON DICKSON; CANDACE HOLIDAY; NICOLE ROBERTS; DONNA SINGER;
    FRED RIGGS, Plaintiffs ? Appellants, v. SAN JUAN COUNTY; SAN JUAN HEALTH
    SERVICES DISTRICT; J. TYRON LEWIS, Commissioner; BILL REDD,
    Commissioner; CRAIG HALLS; MARK MARYBOY, Commissioner, official capacity
    only; REID M. WOOD; CLEAL BRADFORD; ROGER ATCITTY; JOHN LEWIS; JOHN
    HOUSEKEEPER; KAREN ADAMS; PATSY SHUMWAY; DR. JAMES D. REDD; DR. L. VAL
    JONES; DR. MANFRED R. NELSON; RICHARD BAILEY; SAN JUAN FOUNDATION;
    MARILEE BAILEY; ORA LEE BLACK; GARY HOLLADAY; LORI WALLACE, also known
    as Laurie Walker;	No. 01-4001 FARMER'S/TRUCK INSURANCE; ST. PAUL'S
    INSURANCE; CARLA GRIMSHAW; GLORIA YANITO; JULIE BRONSON; R. DENNIS
    ICKES; LAURIE SCHAFER, Defendants ? Appellees,	
    
    Appeal from the United States District Court for the District of Utah
    (D.C. No. 00-CV-584-K) 
    
    Susan Rose of Sandy, Utah, for the Plaintiffs-Appellants. 
    
    Carolyn Cox (Blaine J. Benard with her on the brief) of Holme Roberts &
    Owen L.L.P., Salt Lake City, Utah, for Defendants-Appellees San Juan
    Health Services District, Reid Wood, Roger Atcitty, John Lewis, John
    Housekeeper, Karen Adams, Patsy Shumway, Gary Holliday, and Lauren
    Schafer. 
    
    Jesse C. Trentadue of Suitter Axland, Salt Lake City, Utah, for
    Defendants-Appellees San Juan County, J. Tyron Lewis, Mark Maryboy, Bill
    Redd, Craig Halls, and Richard Bailey. 
    
    Kyle M. Finch of Miller, Stratvert & Torgerson, P.A., Farmington, New
    Mexico, submitted a brief for Defendant-Appellee Farmer's/Truck
    Insurance. 
    
    Robert R. Harrison and David W. Slagle, of Snow, Christensen &
    Martineau, Salt Lake City, Utah, submitted a brief for
    Defendants-Appellees Cleal Bradford, Dr. James Redd, Dr. L. Val Jones,
    Dr. Manfred Nelson, Marilee Bailey, Ora Lee Black, Lori Wallace, Carla
    Grimshaw, Gloria Yanito, and Julie Bronson. 
    
    R. Dennis Ickes, pro se. 
    
    Before EBEL, McKAY, and LUCERO, Circuit Judges. 
    
    LUCERO, Circuit Judge. 
    
    Key to our determination of this appeal is the question whether the
    courts of the Navajo Nation may exercise jurisdiction over a case
    brought by private individuals against a Utah county alleging violations
    of Navajo law. Contrary to the district court's ruling, we conclude that
    resolution of this question lies in Montana v. United States, 450 U.S.
    544 (1981) (defining the scope of tribes' inherent sovereignty), rather
    than in the doctrine of state sovereign immunity. I The parties bring to
    us a procedural quagmire marked by a profound lack of clarity-at times
    approaching confusion-in their litigation before the Navajo Nation
    district court and their pleadings before the federal district court
    below. That pattern continues here. 
    
    Rather than including a complete statement of relevant facts as required
    by Fed. R. App. P. 28, appellants' opening brief incorporates facts as
    stated in a Navajo Nation judicial record. Appellants fail to comply
    with Fed. R. App. P. 30(a)(1)(B), which requires the filing of an
    appendix to the briefs including "relevant portions of the pleadings."
    This being an appeal from a Fed. R. Civ. P. 12(b)(6) dismissal for the
    complaint's failure to state a claim upon which relief may be granted,
    Rule 30(a)(1)(B) requires, at a minimum, inclusion in the appendix of
    the complaint at issue. See 10th Cir. R. 30.1(A)(1) (stating that the
    appendix to the briefs must be "sufficient for considering and deciding
    the issues on appeal"). Were it not for appellees' submission of the
    complaint, we would be inclined to affirm the district court's dismissal
    on this basis alone. See 10th Cir. R. 30.1(A)(3) (stating that this
    court is not obliged to "remedy any failure of counsel to provide an
    adequate appendix"). As best as we can tell, the facts are as follows. A
    Montezuma Creek Clinic is located within the boundaries of the Navajo
    Nation and was, during relevant times, operated by the San Juan Health
    Service District ("Health District")-a special service district
    organized by San Juan County, Utah ("County")-under contract with the
    federal Indian Health Service ("IHS") to provide health care to members
    of the Navajo community. The clinic and land upon which it is located
    was purchased by the State of Utah as part of the Utah Navajo Trust
    Fund. 
    
    In April 1999, Fred Riggs, Donna Singer, and Alison Dickson, all of whom
    were employed at the clinic, sued the Health District and County, among
    others, in Navajo Nation district court for, among other things, alleged
    violations of the Navajo Preference in Employment Act ("NPEA"), Nation
    Code tit. 15, §§ 601-609. The NPEA, which was enacted by the Navajo
    Nation, requires employers to "[g]ive preference in employment to
    Navajos," id. § 604(A)(1), and to file with the Office of Navajo Labor
    Relations a written affirmative-action plan, § 604(A)(2). 
    
    In pretrial proceedings, the Navajo court concluded that Riggs, Singer,
    and Dickson demonstrated a substantial likelihood of success on the
    merits of their NPEA claims and entered a preliminary injunction in
    their favor. The Navajo court was troubled by what it perceived as a
    sharp drop in visits to the clinic by diabetic patients. In the court's
    view, "The reason these patients have not been coming in for life
    critical medical care is due to San Juan Health Service District's
    billing of IHS eligible patients, making them believe they must pay for
    medical services before receiving medical attention." (1 Appellants'
    App. at 77.) Under the preliminary injunction, the County and Health
    District were required to reinstate Singer and Riggs to their prior
    positions at the clinic; to give Dickson full-time employment status; to
    compensate Singer, Riggs, and Dickson for their lost income; to expunge
    Singer's and Riggs's personnel files; and to pay attorney's fees.
    Moreover, the Navajo court prohibited the County and Health District
    from: Eliminating Emergency Medical Technician services and coverage
    within the territorial jurisdiction of the Navajo Nation in service to
    the local Navajo and other Native American population for or on behalf
    of the Montezuma Creek Clinic; and, Interfering with the laboratory
    services to the Montezuma Creek Clinic; and, Interfering with the
    pharmaceutical services provided to the Montezuma Creek Clinic, and
    immediate payment of all current and past due billings; and, Interfering
    with any form of patient care, by, among any other matter or things,
    billing IHS patients; and Interfering or harassing Ms. Singer as the
    manager of the Montezuma Creek Clinic . . . . 
    
    (1 id. at 85-86.) 
    
    In its order granting a preliminary injunction, the Navajo court found
    that the defendants had engaged in a pattern of bad faith conduct toward
    the court, had wasted judicial resources, had engaged in "repeated
    misrepresentations of fact and law," had engaged in evidence spoliation,
    had intimidated and tampered with witnesses, had obstructed testimony,
    and had engaged in the sandbagging of evidence. (1 id. at 80.) In the
    Navajo court's view, the defendants had made frivolous claims against
    Navajo plaintiffs and subjected them "to a trial by tabloid." (1 id. at
    81.) Seizing on these conclusions, Riggs, Singer, and Dickson modified
    their complaint to add as defendants the clinic's insurer, Truck
    Insurance Exchange ("Truck Insurance"), and its attorney, R. Dennis
    Ickes. On May 3, 2000, the Navajo court took the extraordinary step of
    holding that Truck Insurance and Ickes should be bound by the
    preliminary injunction. The court also granted Riggs, Singer, and
    Dickson leave to seek enforcement of the preliminary injunction in state
    or federal court "pursuant to principles of comity and applicable law."
    (1 id. at 106.) B 
    
    Riggs, Singer, Dickson, and twelve other individuals filed a complaint
    in United States district court against (1) the County, Health District,
    and a number of County and Health District officials ("County and Health
    District defendants"); (2) Truck Insurance; and (3) Ickes. The complaint
    listed various causes of action: discrimination and denial of equal
    protection; denial of free speech and association; denial of due
    process; antitrust and racketeering violations; fraud, conversion, and
    theft; and invasion of privacy and defamation. Their complaint also
    sought enforcement of the Navajo court preliminary injunction and "a
    declaratory judgment that the Preliminary Injunction Order designed to
    protect the welfare of the Navajo Nation was issued within the sound
    jurisdiction of the Navajo Nation District Court and is authoritative
    over the defendants and the political subdivision" (Health District's
    Supplemental App. ("H.D. App.") at 46). The complaint asserted:
    "Pursuant to Strate v. A-1 Contractor, 117 S.Ct. 1404, (1997) [the]
    Navajo Nation District Court . . . has the right to protect the Navajo
    Patients' health and welfare, contractual rights of the Navajo people,
    and the civil rights of all those who are within the Navajo Nation
    boundaries and seek [the] Court's assistance." (H.D. App. at 48.) Ruling
    on a motion to dismiss, the district court held that County and Health
    District defendants were entitled to sovereign immunity in the Navajo
    court. Reasoned the district court: [T]ribal courts historically did not
    possess and therefore have not retained sovereign powers over states.
    Therefore, absent a state's express waiver of immunity, a state cannot
    be sued in tribal court. . . . Consequently, political subdivisions of
    the State of Utah, as defined by Utah law, are immune from suit in
    tribal courts because the State of Utah has not waived the common law
    immunity of its political subdivisions from suit in tribal courts. 
    
    (2 Appellants' App. at 185.) In a separate decision, the district court
    dismissed plaintiffs' claim as against Truck Insurance and Ickes.
    Applying Montana v. United States, the district court held that the
    Navajo court lacked subject-matter jurisdiction over them. 
    
    Appellants seek review of the district court decisions. C 
    
    We review the district court's dismissal of appellants' claims under
    Rule 12(b)(6) for failure to state a claim de novo. Sutton v. Utah State
    Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). At this
    stage of the litigation, we accept all well-pleaded allegations in the
    complaint as true and will sustain the district court's Rule 12(b)(6)
    dismissal only if it is clear beyond doubt that no relief could be
    granted under any set of facts that could be proved consistent with the
    allegations. Id. Our role in this context "is not to weigh potential
    evidence that the parties might present at trial, but to assess whether
    the plaintiff's complaint alone is legally sufficient to state a claim
    for which relief may be granted." Id. (quotation omitted). "Indeed it
    may appear on the face of the pleadings that a recovery is very remote
    and unlikely but that is not the test." Scheuer v. Rhodes, 416 U.S. 232,
    236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S.
    800 (1982). In deciding a Rule 12(b)(6) motion, a federal court
    generally "should not look beyond the confines of the complaint itself."
    Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 960 (10th Cir.
    2001), cert. granted, 122 S. Ct. 1171 (2002). There are two exceptions
    to this rule. First, the district court may consider "mere argument"
    contained in the parties' memoranda concerning a motion to dismiss. Ohio
    v. Peterson, Lowry, Rall, Barber & Ross, 585 F.2d 454, 457 (10th Cir.
    1978). Second, "[i]t is accepted practice, if a plaintiff does not
    incorporate by reference or attach a document to its complaint, but the
    document is referred to in the complaint and is central to the
    plaintiff's claim, a defendant may submit an indisputably authentic copy
    to the court to be considered on a motion to dismiss." Howsam, 261 F.3d
    at 961 (quotation omitted). 
    
    As stated above, appellants' failure to submit a copy of their complaint
    to this court on appeal is rendered less harmful by appellees'
    submission of that crucial document. However, the district court docket
    entries indicate that appellants filed attachments and an addendum to
    their complaint on July 26, 2000. We are at a loss as to the contents of
    these filings. Although it seems clear that the district court relied on
    facts beyond those alleged in the body of the complaint, there is no way
    to know from the record before us whether these factual allegations are
    reflected in the attachments to the complaint. Because appellants do not
    challenge the district court's decisions on grounds that the court
    exceeded the proper scope of Rule 12(b)(6) review, we defer to the
    district court's statements of factual allegations. II We first consider
    whether the district court properly dismissed appellants' claims against
    Truck Insurance and Ickes. A Long before the arrival of Europeans on
    this continent, tribes were self-governing political communities. Nat'l
    Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 851 (1985). As
    such, the tribes possessed the full attributes of sovereignty, which
    included "the inherent power to prescribe laws for their members and to
    punish infractions of those laws." United States v. Wheeler, 435 U.S.
    313, 323 (1978). Although "[t]heir incorporation within the territory of
    the United States, and their acceptance of its protection necessarily
    divested them of some aspects of the sovereignty which they had
    previously exercised," id., this divestiture was not absolute. Today,
    tribes retain sovereignty of a unique and limited character. It exists
    only at the sufferance of Congress and is subject to complete
    defeasance. But until Congress acts, the tribes retain their existing
    sovereign powers. In sum, Indian tribes still possess those aspects of
    sovereignty not withdrawn by treaty or statute, or by implication as a
    necessary result of their dependent status. 
    
    Id. 
    
    As Felix Cohen observed in his seminal work on the subject of federal
    Indian law, "[T]hose powers which are lawfully vested in an Indian tribe
    are not, in general, delegated powers granted by express acts of
    Congress, but rather inherent powers of a limited sovereignty which has
    never been extinguished." Felix S. Cohen, Handbook of Federal Indian Law
    122 (1941); see Wheeler, 435 U.S. at 322. Contrary to County defendants'
    assertion on appeal (see County Appellees' Br. at 20), tribes are not
    subordinate to the states, see Washington v. Confederated Tribes, 447
    U.S. 134, 154 (1980), and certainly not to counties. 
    
    The leading case defining the scope of tribal inherent civil authority
    is Montana v. United States. Montana articulates the general rule that
    "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." 450 U.S. at 564. Generally, "the
    inherent sovereign powers of an Indian tribe do not extend to the
    activities of nonmembers of the tribe." Id. at 565. But there may be
    cases in which inherent civil authority will extend to the conduct of
    non-Indians on reservations. First, "[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." Id.
    Second, "[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 566. In a pair of subsequent cases, the Supreme Court
    applied Montana to address the scope of inherent civil adjudicative
    authority as well, holding that "[a]s to nonmembers . . . , a tribe's
    adjudicative jurisdiction does not exceed its legislative jurisdiction."
    Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997); Nevada v. Hicks,
    533 U.S. 353, 357-58 (2001). In Hicks, the Court acknowledged that this
    "formulation leaves open the question whether a tribe's adjudicative
    jurisdiction over nonmember defendants equals its legislative
    jurisdiction." 533 U.S. at 358. 
    
    B In evaluating appellants' declaratory judgment claim against Truck
    Insurance, the district court stated that in April 1999, 
    
    there was in effect a Comprehensive Hospital Liability Policy issued by
    Truck, which, among other things, covered the Montezuma Creek Clinic,
    which was operated by the San Juan Health Services District . . . .
    Consequently, Truck retained Mr. Ickes to represent the District and
    related defendants . . . in the Tribal Court action. Because, there were
    coverage issues as to many of the claims brought by Plaintiffs in the
    Tribal Court proceedings, however, Mr. Ickes was retained solely to
    represent the interests of Truck's insureds. Mr. Ickes was not retained
    to, and has not, represented Truck at any time pertinent to this action.
    
    (2 Appellants' App. at 198.) In their opening brief, appellants neither
    take issue with the district court's statement of these allegations nor
    contend that Truck Insurance is a member of the Navajo Nation such that
    Montana's presumption against tribal authority would not apply. Rather,
    they contend that Truck Insurance falls within Montana's consensual
    relationship exception. According to appellants, Truck's contract for
    liability insurance was an inherent aspect attaching to each Navajo
    patient's contract for services with the clinic. But for the Navajo
    patients, Truck would not have had a contract with the defendants for
    the clinic. Truck's contract was an inherent aspect of Attorney Ickes'
    representation of the defendants. Attorney Ickes kept Truck informed. 
    
    (Appellants' Br. at 28.) 
    
    We reject appellants' argument. Under Montana's consensual relationship
    exception, the relationship must be one between the nonmember and "the
    tribe or its members." 450 U.S. at 564. Here, Truck Insurance's
    contractual relationship was with the clinic, another nonmember. Thus,
    the Navajo Nation's exertion of authority over Truck Insurance is too
    attenuated to fall under Montana's consensual relationship exception.
    See Atkinson Trading Co. v. Shirley, 532 U.S. 645, 656 (2001)
    ("Montana's consensual relationship exception requires that the tax or
    regulation imposed by the Indian tribe have a nexus to the consensual
    relationship itself."). We also reject appellants' contention that their
    declaratory judgment claim against Ickes, who is not a member of the
    Navajo Nation, was improperly dismissed. Appellants claim that the
    Navajo Nation may regulate Ickes's activity because he entered into a
    consensual relationship with the tribe-i.e., he became a member of the
    Navajo Nation Bar Association. We agree that Ickes's membership in the
    Navajo Nation Bar Association and his practice before the Navajo
    district court constitute a consensual relationship with the Navajo
    Nation. However, our Montana inquiry does not end with this
    determination. As was the case with respect to Truck Insurance, the
    requisite nexus between the consensual relationship and the exertion of
    tribal authority is missing. 
    
    By enrolling as a member of the Navajo Nation Bar Association, Ickes
    agreed to follow the American Bar Association's Model Rules of
    Professional Conduct, which have been adopted by the Navajo Nation
    Supreme Court. Rule 8.5(a) of the Model Rules provides, "A lawyer
    admitted to practice in this jurisdiction is subject to the disciplinary
    authority of this jurisdiction . . . ." In our judgment, the power to
    discipline an attorney for alleged misconduct in court is distinct from
    the power to join the attorney as a defendant with the clients he is
    representing before that court. As the Supreme Court observed in
    Atkinson, the rule is not "in for a penny, in for a Pound." 532 U.S. at
    656 (quotation omitted). We are also unpersuaded that Montana's
    self-government exception should apply with respect to Ickes. This
    exception "grants Indian tribes nothing beyond what is necessary to
    protect tribal self-government or to control internal relations." Id. at
    658-59 (quotations omitted). Surely, the Navajo Nation's interest in
    regulating attorney conduct is great. See Goldfarb v. Va. State Bar, 421
    U.S. 773, 792 (1975). But it is a long leap, and one we are unwilling to
    take, to suggest that the action taken by the Navajo court in this case
    was necessary to protect Navajo self-government or control its internal
    relations. If warranted, the Navajo Nation may protect its political
    integrity through other means, such as "the imposition of disbarment,
    suspension or reprimand of the offending attorney[]." Garcia v. Rodey,
    Dickason, Sloan, Akin & Robb, 750 P.2d 118, 123 (N.M. 1988). C 
    
    Appellants contend that the Navajo court's actions respecting Ickes are
    sanctioned by federal law, namely 25 U.S.C. § 1302. This argument is
    utterly devoid of any merit. Section 1302 is an express divestiture of
    tribal authority, providing, among other things, that no Indian tribe
    may "deny to any person within its jurisdiction the equal protection of
    its laws or deprive any person of liberty or property without due
    process of law." 25 U.S.C. § 1302(7); see also Santa Clara Pueblo v.
    Martinez, 436 U.S. 49, 57 (1978) (stating that in § 1302, "Congress
    acted to . . . impos[e] certain restrictions upon tribal governments
    similar, but not identical, to those contained in the Bill of Rights and
    the Fourteenth Amendment"). D 
    
    In contrast to their claim seeking a declaratory judgment, appellants'
    claim for enforcement of the Navajo court's preliminary injunction with
    respect to Truck Insurance and Ickes raises important questions
    concerning the proper role of federal courts. Although a tribal court
    defendant may bring a federal cause of action for an injunction where
    the basis of the claim is assertion of "a right to be protected against
    an unlawful exercise of Tribal Court judicial power," Nat'l Farmers, 471
    U.S. at 851, 852, this right to be free from tribal court interference
    does not necessarily support a federal claim seeking enforcement of a
    tribal decree. Although the sovereign powers of the Navajo Nation are
    held "only at the sufferance of Congress," Wheeler, 435 U.S. at 323,
    these powers are rooted in Navajo, not federal, law. "Indian tribes are
    neither states, nor part of the federal government, nor subdivisions of
    either. Rather, they are sovereign political entities possessed of
    sovereign authority not derived from the United States, which they
    predate." NLRB v. Pueblo of San Juan, 276 F.3d 1186, 1192 (10th Cir.
    2002) (en banc) (footnote omitted). To the extent appellants' complaint
    anticipates a defense arising under federal law, it runs up against the
    well-pleaded complaint rule. See Louisville & Nashville R.R. Co. v.
    Mottley, 211 U.S. 149, 152 (1908). Appellants nonetheless seek
    enforcement of the Navajo court injunction under Full Faith and Credit
    Clause of the Constitution or, in the alternative, comity principles.
    Under the Full Faith and Credit Clause, Full Faith and Credit shall be
    given in each State to the public Acts, Records, and judicial
    Proceedings of every other State. And the Congress may by general Laws
    prescribe the Manner in which such Acts, Records and Proceedings shall
    be proved, and the Effect thereof. 
    
    U.S. Const. art. IV, § 1. Full faith and credit principles are also in
    place as a matter of statute: 
    
    Such Acts, records, and judicial proceedings or copies thereof, so
    authenticated, shall have the same full faith and credit in every court
    within the United States and its Territories and Possessions as they
    have by law or usage in the courts of such State, Territory or
    Possession from which they are taken. 
    
    28 U.S.C. § 1738. According to appellants, tribes historically have been
    viewed as territories of the United States. In fact, Supreme Court cases
    point in opposing directions. Compare United States ex rel. Mackey v.
    Coxe, 59 U.S. (18 How.) 100, 103 (1855) (holding that the Cherokee
    Nation was a "territory" for purposes of a federal letters of
    administration law), with New York ex rel. Kopel v. Bingham, 211 U.S.
    468, 474-75 (1909) (citing, with approval, Ex Parte Morgan, 20 F. 298,
    305 (W.D. Ark. 1883), which held that the Cherokee Nation was not a
    "territory" within the meaning of the federal extradition statute). See
    generally Wilson v. Marchington, 127 F.3d 805, 808-09 (9th Cir. 1997)
    (discussing the issue at length and ultimately holding that neither the
    Full Faith and Credit Clause nor 28 U.S.C. § 1738 is applicable to
    tribal judgments). We need not address this issue because appellants
    admit that they did not argue full faith and credit in the Federal
    [district] Court, but upon further consideration of the full
    pervasiveness of the United States in Tribal Court systems, and given
    the need for preliminary injunctions in health and public safety
    emergencies, the Plaintiffs now argue full faith and credit is
    appropriate for exclusively tribal claims under the facts of this case. 
    
    (Appellants' Br. at 36 n.14.) As a general rule, this court will not
    consider an issue on appeal that was not pressed below, Walker v. Mather
    (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992), and we choose not to
    do so today. We thus proceed with the assumption that the Navajo Nation
    injunction is enforceable in federal court as a matter of comity. We are
    unwilling to enforce judgments of tribal courts acting beyond their
    authority, especially where defendants have a federal right "to be
    protected against an unlawful exercise of Tribal Court judicial power,"
    Nat'l Farmers, 471 U.S. at 851; see Wilson, 127 F.3d at 810 (holding
    that "federal courts must neither recognize nor enforce tribal judgments
    if: (1) the tribal court did not have both personal and subject matter
    jurisdiction; or (2) the defendant was not afforded due process of
    law"). Therefore, given our earlier conclusion that the Navajo court
    lacked subject-matter jurisdiction over Truck Insurance and Ickes, we
    must affirm the district court's dismissal of appellants' enforcement
    claim as against those parties. III We proceed to review the district
    court's dismissal of appellants' claims against County and Health
    District defendants. A 
    
    In its memorandum decision and order, the district court ruled that the
    Navajo court suit against County and Health District defendants was
    barred by the doctrine of sovereign immunity. The Navajo court's
    exercise of jurisdiction over these defendants was, in the district
    court's view, "nonsensical" and "ludicrous." (2 Appellants' App. at
    190.) The district court based its decision on constitutional
    sovereign-immunity principles, stressing that the Constitution never
    would have been ratified had the states been stripped of their sovereign
    authority "'except as expressly provided by the Constitution itself.'"
    (2 id. at 185 (quoting Alden v. Maine, 527 U.S. 706, 727 (1999)).) As
    exemplified by such decisions as Alden and Hans v. Louisiana, 134 U.S. 1
    (1890), the federal doctrine of sovereign immunity holds that the
    federal government may not, as a general matter, infringe the states'
    immunity from private suit. Appellants contend that the district court's
    analysis of their claims against County and Health District defendants
    should have proceeded under Montana and subsequent cases defining tribal
    inherent sovereignty. Had these principles been applied, say appellants,
    dismissal would have been improper. B We begin our analysis with the
    acknowledgment that federal sovereign immunity and Montana are distinct
    legal doctrines. On a practical level, however, both Montana and
    sovereign immunity may potentially divest the Navajo court of the power
    to adjudicate the parties' suit. 
    
    The district court's reliance on federal sovereign immunity
    misunderstands the doctrine as defined by the Supreme Court. See Nevada
    v. Hicks, 533 U.S. 353, 373-74 (2001); Nevada v. Hall, 440 U.S. 410, 414
    (1979) ("The doctrine of sovereign immunity is an amalgam of two quite
    different concepts, one applicable to suits in the sovereign's own
    courts and the other to suits in the courts of another sovereign.").
    Nonetheless, at this point in the analysis it would be premature to
    decide the sovereign immunity question because there remains a threshold
    question of the tribe's jurisdiction under Montana. C The threshold
    question in our review of the Navajo court judgment is whether the
    Navajo Nation's decision to exercise adjudicative power over County and
    Health District defendants passes muster under Montana. If, and only if,
    appellants overcome the heavy presumption Montana establishes against
    the existence of tribal jurisdiction will a federal court have occasion
    to address the sovereign immunity issue at all. 
    
    Our judgment is guided by Nevada v. Hicks, 533 U.S. 353 (2001) decided
    by the Supreme Court after the district court's dismissal in the present
    case. The primary issue in Hicks was whether a tribal court possessed
    "jurisdiction to adjudicate the alleged tortious conduct of state
    wardens executing a search warrant for evidence of an off-reservation
    crime." Id. at 357. The Court concluded that the tribal court did not
    have jurisdiction, applying the two Montana principles of Indian law
    that we have already discussed: first, that "'[a]s to nonmembers . . . a
    tribe's adjudicative jurisdiction does not exceed its legislative
    jurisdiction,'" id. at 357-58 (quoting Strate, 520 U.S. at 453); and
    second, 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,'" id. at 359 (quoting Montana, 450 U.S. at 564 ) (emphasis
    removed). Although the Court did not answer the question of whether a
    tribe's adjudicative jurisdiction over nonmembers equals its regulatory
    jurisdiction, the Court made clear that without regulatory jurisdiction
    under Montana, a tribe is definitively without adjudicative
    jurisdiction. Id. at 358. 
    
    Hicks expressly acknowledges that Montana and sovereign immunity are
    distinct doctrines. Moreover, Hicks rejects the view that "immunity
    defenses should be considered in reviewing tribal court jurisdiction,"
    id. at 373 (quotation omitted), and provides two reasons for this
    conclusion: The first is that it is not true. There is no authority
    whatever for the proposition that absolute- and qualified-immunity
    defenses pertain to the court's jurisdiction-much less to the tribe's
    regulatory jurisdiction, which is what is at issue here. (If they did
    pertain to the court's jurisdiction, they would presumably be
    nonwaivable. Cf. Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261,
    267 (1997)). And the second problem is, that without first determining
    whether the tribe has regulatory jurisdiction, it is impossible to know
    which "immunity defenses" the federal court is supposed to consider. 
    
    Id. at 373-74 (parallel citations omitted). Hicks thus stands for the
    proposition that Montana analysis should proceed before considering
    immunity defenses. In sum, we conclude that the district court should
    have performed a Montana analysis before reaching the sovereign immunity
    question. D 
    
    Although the district court did not conduct a proper analysis under
    Montana, we are nonetheless free to affirm the district court's
    dismissal on any grounds for which there is a record sufficient to
    permit conclusions of law, provided the litigants have had a fair
    opportunity to develop the record. See Seibert v. Oklahoma ex rel. Univ.
    of Okla. Health Scis. Ctr., 867 F.2d 591, 597 (10th Cir. 1989). We
    decline to do so, however, and instead vacate the court's dismissal of
    appellants' claim against County and Health District defendants, and
    remand the matter for further proceedings. In addition to the fact that
    County and Health District defendants did not brief the Montana issues
    on appeal, we have kept in mind the limited nature of our inquiry when
    assessing Rule 12(b)(6) motions to dismiss for failure to state a claim
    upon which relief may be granted. "The granting of a motion to dismiss
    must be cautiously studied, not only to effectuate the spirit of the
    liberal rules of pleading but also to protect the interests of justice."
    Pelt v. Utah, 104 F.3d 1534, 1540 (10th Cir. 1996) (quotation omitted). 
    
    Appellants' position has been that the district court relied on the
    wrong doctrine in dismissing its claims against County and Health
    District defendants. We do not intend to suggest an outcome on remand.
    However, as the Supreme Court has observed, "the existence and extent of
    a tribal court's jurisdiction will require a careful examination of
    tribal sovereignty, the extent to which that sovereignty has been
    altered, divested, or diminished, as well as a detailed study of
    relevant statutes, Executive Branch policy as embodied in treaties and
    elsewhere, and administrative or judicial decisions." Nat'l Farmers, 471
    U.S. at 855-56 (footnote omitted). IV The district court's dismissal of
    appellants' claim against Ickes and Truck Insurance is AFFIRMED.
    Dismissal of appellants' claim against County and Health District
    defendants is VACATED, and the matter is REMANDED for further
    proceedings consistent with this opinion. All outstanding motions are
    DENIED. 
    
    

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