Appeal from the United States District Courtfor the District of ArizonaEarl H. Carroll, District Judge, PresidingArgued and SubmittedFebruary 11, 1999--San Francisco, CaliforniaFiled April 22, 1999Before: James R. Browning, Harlington Wood, Jr.,1 andSidney R. Thomas, Circuit Judges.Opinion by Judge Sidney R. ThomasSUMMARY
______________________COUNSEL Richard J. Sundberg, Bloomington, Minnesota, for theplaintiff-appellant.Kane Jorden von Oppenfeld, Douglas A. Jorden, and Ellen M.Van Riper, Bischoff & Biskind, Phoenix, Arizona, fordefendant-appellee Lone Butte Industrial Development Cor-poration.Rodney B. Lewis, Sacaton, Arizona, for defendant-appelleeGila River Indian Community.
_____________________________OPINION THOMAS, Circuit Judge:This appeal involves the question of whether a litigant mustexhaust his appellate remedies in tribal court when the tribalappellate court has not responded to initial appellate pleadingsfor an extended period of time. Because the record createssufficient doubt as to whether the futility exception to theexhaustion doctrine applies, we reverse the district court'sgrant of summary judgment and remand for further proceed-ings.IThe Gila River Indian Community ("the Tribe") is a feder-ally recognized Indian tribe with its reservation located inArizona. In 1966, the Tribe leased real property located on itsreservation to Lone Butte Industrial Development Corporation("Lone Butte"), a corporation chartered by the Tribe. In 1979,Lone Butte entered into a sublease of the property with Gen-star Corporation, which built a rubber processing plant on theproperty. In 1987, the Tonson Corporation purchased Gen-star's business with funds loaned by Tonson shareholderBruce Johnson. As part of the transaction, Johnson acquireda security interest in rubber processing equipment located onthe property. Subsequently, Johnson foreclosed his securityinterest, took possession of the secured property, and Tonsonceased operation. Another corporation, International Rubber,then assumed the Genstar lease, but failed to pay rent to LoneButte. In 1991, Lone Butte terminated the Genstar lease.Later that year, International Rubber entered into a newsublease with Lone Butte for the use of the property andleased the rubber processing equipment from Johnson. AfterInternational Rubber failed to fulfill its obligations under thenew lease, Lone Butte terminated the new lease and securedthe premises. Lone Butte notified Johnson that it claimed alandlord's lien on the equipment for unpaid rents and dam-ages. Thereafter, Johnson attempted to remove the rubber pro-cessing equipment and the building but was denied access tothe property.In December 1993, Lone Butte filed a claim in the GilaRiver Indian Community Tribal Court, contesting the owner-ship of the building and the rubber processing equipmentlocated on the property. Lone Butte sued International Rubberand Bruce Johnson, as it believed that both defendants mighthave ownership interests in the building and the equipment.Lone Butte also sued International Rubber for its alleged fail-ure to remove rubber tires from the property.After receiving notice by mail, Johnson specially appearedin the tribal court to challenge the tribal court's jurisdictionover him and his property and to request transfer to federaldistrict court. He also filed an answer and a counterclaim,alleging he was the rightful owner of the building and the rub-ber processing equipment. The tribal court permitted LoneButte to amend its complaint and file an in personam claimagainst Johnson for trespass and environmental nuisance.Johnson challenged the tribal court's personal jurisdictionover him.In January 1995, a trial commenced in the tribal court. InSeptember 1995, the court announced its decision, issuedfindings of fact, and held that Johnson was liable to LoneButte for $660,000--$500,000 of which was punitive dam-ages.Johnson attempted to file an appeal in tribal court. He fileda notice of appeal in October 1995, requested the rules of theappellate court, and requested the address of the clerk of theappellate court. He received some of this information inNovember 1995. Johnson then filed an appellate memoran-dum. In December, Johnson wrote a letter to the clerk request-ing more information, for example, when the appellate briefwas due, if there were additional rules other than those withwhich he had been provided, and when and how he wouldreceive a transcript of the trial. At the same time, he sent theclerk a copy of the transcript of the tribal court proceedingsthat he had prepared at his own expense as well as copies ofhis trial and post-trial briefs.In January 1996, Lone Butte filed response briefs, addi-tional memorandum, and two motions in tribal court. The par-ties heard nothing from the appellate court for more than ayear. In March 1996, Lone Butte filed a request for a rulingon the pending motions, but the clerk never responded to thisrequest.On March 11, 1996, Johnson filed a complaint in theUnited States District Court for District of Arizona, claimingthat the tribal court lacked personal jurisdiction over him, thathis property had been taken without just compensation, thatLone Butte was liable for conversion, and asking the court toissue an injunction to prevent Lone Butte from enforcing thetribal court judgment. The district court, in May 1996, dis-missed his complaint for failure to exhaust tribal remedies. InOctober 1996, Lone Butte requested that the tribal appellatecourt render a decision in the pending appeal.In November 1996, Johnson filed a second complaint in thesame district court, this time alleging, in relevant part, that thetribal court had violated the Indian Civil Rights Act and thatLone Butte had wrongfully converted his property. Johnsonalso asked the district court to issue a declaratory judgmentand an injunction prohibiting Lone Butte from enforcing thetribal court judgment because he claimed that the tribal courthad lacked personal jurisdiction over him and his property. Healleged that the district court had jurisdiction over the Tribeunder 28 U.S.C. S 1331, and over Lone Butte under 28 U.S.C.S 1332. In October 1997, the district court again dismissedJohnson's action.II[1] As sovereign nations, Indian tribes possess commonlaw immunity from suit in federal court. See Santa ClaraPueblo v. Martinez,
436 U.S. 49, 58
(1978). Accordingly, thedistrict court correctly dismissed Johnson's claims against theTribe pursuant to the Indian Civil Rights Act ("ICRA"), 25U.S.C. SS 1302(5) and 1302(8). The only recognized excep-tion to a sovereign immunity defense under the ICRA is ahabeas corpus action. See Santa Clara,
436 U.S. at 59
; Pinkv. Modoc Indian Health Project, Inc., 157 F.3d 1185, 1189(9th Cir. 1998). Because Johnson does not seek such relief,and the Tribe has not waived its sovereign immunity defense,the district court properly dismissed Johnson's claims againstthe Tribe.2III[2] Because Lone Butte and Johnson are citizens of differ-ent states and the amount in controversy exceeds $75,000, thedistrict court had concurrent jurisdiction with the tribal courtover Johnson's claims against Lone Butte pursuant to 28U.S.C. S 1332.3[3] When federal and tribal courts have concurrent jurisdic-tion over a claim, "considerations of comity direct that tribalremedies be exhausted before the question is addressed by theDistrict Court." Iowa Mut. Ins. Co. v. LaPlante,
480 U.S. 9
,15 (1987); see also National Farmers Union Ins. Cos. v.Crow Tribe,
471 U.S. 845, 857
(1985); Stock West Corp. v.Taylor, 964 F.2d 912, 920 (9th Cir. 1992) (en banc).[4] However, this prudential rule has exceptions, as theSupreme Court noted in Iowa Mutual: [E]xhaustion [is] not required where an assertion of tribal court jurisdiction is motivated by a desire to harass or is conducted in bad faith, or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of adequate opportunity to chal- lenge the court's jurisdiction.
480 U.S. at 19
n.12 (citations and internal quotation marksomitted).[5] Johnson's primary claim is that a two-year delay in thetribal appellate court renders his appellate claim futile. Delayalone is not ordinarily sufficient to show that pursuing tribalremedies is futile. However, if a functioning appellate courtdoes not exist, exhaustion is per se futile. See, e.g., Krempelv. Prairie Island Indian Community, 125 F.3d 621, 622 (8thCir. 1997) (holding that a litigant need not exhaust tribal rem-edies when no functioning court existed at the time the origi-nal complaint was filed in district court). In this instance, thelack of a briefing schedule, scheduled appellate argument, ameaningful response to the notice of appeal, or an answer toany of Johnson's correspondence for an abnormally extensiveperiod create doubt that a functioning appellate court exists.Accordingly, Johnson raised sufficient genuine issues ofmaterial fact as to whether exhaustion would be futile, thusprecluding dismissal of his claim.[6] We therefore reverse the district court's dismissal ofJohnson's claims against Lone Butte and remand for the dis-trict court to conduct a further inquiry into whether a suffi-cient tribal appellate remedy exists for the purposes ofexhaustion. We affirm the dismissal of Johnson's claimsagainst the Tribe. Each party shall bear its own costs.AFFIRMED IN PART, REVERSED IN PART ANDREMANDED. the end
___________________________FOOTNOTES 1 The Honorable Harlington Wood, Jr., Senior United States CircuitJudge for the United States Court of Appeals for the Seventh Circuit, sit-ting by designation.2 Johnson argues that Dry Creek Lodge, Inc. v. Arapahoe & ShoshoneTribes, 623 F.2d 682, 685 (10th Cir. 1980), affords him relief under theICRA. However, except in habeas corpus actions, this circuit has not rec-ognized relief under the Act against a tribe in a civil action. See Pink, 157F.3d at 1189; Snow v. Quinault Indian Nation , 709 F.2d 1319, 1323 (9thCir. 1983); Trans-Canada Enters., Ltd. v. Muckleshoot Indian Tribe, 634F.2d 474, 476-77 (9th Cir. 1980). In addition, the Tenth Circuit has limitedDry Creek to extraordinary circumstances not present in this case. SeeBank of Okla. v. Muscogee (Creek) Nation, 972 F.2d 1166, 1170 (10th Cir.1992); White v. Pueblo of San Juan, 728 F.2d 1307, 1312 (10th Cir. 1984).3 The tribal court had subject matter jurisdiction over the claims becausethey arose out of commercial relationships with the Tribe on its reserva-tion. See Strate v. A-1 Contractors,
520 U.S. 438, 446
(1997). We do notreach the question of whether the tribal court had personal jurisdictionover Johnson.