[00:00:02] Speaker 03:
Good morning to please the court.

[00:00:04] Speaker 03:
I'm Richard Doran on behalf of Lexington, the appellant and cross appellee, and I've reserved five minutes for rebuttal.

[00:00:12] Speaker 05:
All right.

[00:00:16] Speaker 03:
The district court found jurisdiction based on Cabezon's right to exclude nonmembers from tribal lands.

[00:00:25] Speaker 03:
But the Ninth Circuit cases, which are the only cases to have identified the right to exclude as a separate exception to the Montana principle, only apply that doctrine when the non-member is physically present on tribal land and when their conduct while physically present on tribal land gives rise to the underlying claim or to the claim in dispute.

[00:00:51] Speaker 03:
Waterwheel, of course, is one of the lead cases on the doctrine and highlights that with a 20-year lease on the property and a tourist attraction being conducted on the property.

[00:01:03] Speaker 03:
Knighton is another case where someone defrauding the tribe was found to fall within tribal court jurisdiction because their conduct had occurred on tribal land.

[00:01:13] Speaker 03:
Their misconduct had occurred on tribal land.

[00:01:16] Speaker 03:
Here, there has been no conduct relevant to this dispute on tribal land.

[00:01:23] Speaker 03:
First, it's the nature of the dispute itself.

[00:01:27] Speaker 03:
Insurance contracts are, by their nature, a financial instrument, a risk-spreading, a risk-mitigating instrument entered into between two commercial parties.

[00:01:39] Speaker 03:
It's analogous, perhaps, to Plains Commerce, where it was found that a bank

[00:01:44] Speaker 03:
that sold a piece of fee property within the tribal boundaries was not subject to tribal court jurisdiction because it did not perform conduct on tribal land.

[00:01:58] Speaker 03:
It rather just sold transferred ownership of that property.

[00:02:02] Speaker 03:
So nothing that it did on the land itself gave rise to that claim.

[00:02:07] Speaker 05:
Is it just a question of attenuation, counsel, where we look at it on a case by case basis?

[00:02:12] Speaker 05:
Because surely in the modern world,

[00:02:14] Speaker 05:
you can imagine lots of transactions where there's no physical connection or physical activity occurring on the land.

[00:02:21] Speaker 05:
So let's assume that in the digital world, it can be somewhat of a mixed bag.

[00:02:27] Speaker 05:
Then how do we approach the analysis?

[00:02:29] Speaker 03:
Well, Your Honor, for example, Plains Commerce is from 2008, deep within the digital world.

[00:02:35] Speaker 03:
And what we're dealing with here is a long, historic, and unique basis for jurisdiction, which is an indigenous people

[00:02:43] Speaker 03:
granted sovereign rights within the physical boundaries of land that is handed over, given over to them.

[00:02:52] Speaker 03:
And so it's unique in that respect.

[00:02:54] Speaker 03:
We're not talking about questions of wire fraud or the impact of mailing something onto the reservation, but rather there is a robust body of law, admittedly dating back to 1832, but continuing through to very recent months, in which actual physical conduct

[00:03:12] Speaker 03:
on the physical property is required.

[00:03:15] Speaker 03:
Because without that limiting principle, then to your honor's point, any commercial dispute, be it a dispute with a bank, as in Plains Commerce, be it a dispute with the investment manager handling the tribe's 401k accounts, be it with an accountant helping with the casino's books,

[00:03:35] Speaker 03:
All of them would be subject to tribal court jurisdiction, and yet there's not a single case finding that to be the case.

[00:03:42] Speaker 03:
And that is because of this fundamental limiting principle of tribal court jurisdiction.

[00:03:48] Speaker 02:
Let me try again on terms of factual difference.

[00:03:52] Speaker 02:
Let's talk about, let's say, life insurance contract.

[00:03:55] Speaker 02:
You have an advertisement in a magazine.

[00:03:57] Speaker 02:
You mail in a coupon to New York.

[00:03:59] Speaker 02:
That sounds like the sort that you would say, no jurisdiction.

[00:04:04] Speaker 02:
But if you have an agency on the reservation who is selling insurance there, would that then make the insurance contract subject to jurisdiction?

[00:04:16] Speaker 03:
Well, Your Honor, I would suggest, by way of example, the Stifle case out of the Seventh Circuit.

[00:04:24] Speaker 03:
There, there was a series of bond offerings, and as a part of that transaction, Wells Fargo was actually given an indenture over the revenues of the Tribal Casino.

[00:04:37] Speaker 03:
And it had control of those revenues.

[00:04:40] Speaker 03:
There's indications in the record that there were negotiations around this transaction on the reservation.

[00:04:48] Speaker 03:
But because those off-site, those non-members who were officed outside of the reservation were conducting their business related to the transaction outside of the reservation, there was no tribal court subject matter jurisdiction.

[00:05:07] Speaker 03:
now your honor if there was an insurance company on the reservation and one in fact that

[00:05:15] Speaker 03:
had its offices there and was conducting business there, that would maybe be a different fact pattern.

[00:05:20] Speaker 03:
The only suggestion of physical presence on the reservation here is an allusion by the district court to visits by an entity called Alliant, which is a third party, and the only evidence gathered about what Alliant did was that it would go to the reservation annually to obtain information relevant to the renewals.

[00:05:43] Speaker 03:
Nothing to do with the claim at issue here.

[00:05:45] Speaker 03:
The claim, the breach claim, which we have here, is not relevant to Alliance gathering information for renewals.

[00:05:54] Speaker 03:
It was the submission of a claim to offsite non-members at Lexington who evaluated that claim and determined that it wasn't covered under the policy.

[00:06:05] Speaker 03:
And that off-reservation conduct is what gave rise to the dispute here.

[00:06:10] Speaker 03:
And there's no question.

[00:06:13] Speaker 03:
that when a tribe does business with offsite nonmembers, that it is subject to state law, just like everyone else.

[00:06:24] Speaker 03:
That's the Mescalero decision from back in 1973.

[00:06:28] Speaker 03:
And it's also beyond question that the insurance industry is highly regulated within the states, that the states have well-developed bodies of law, and that state and federal courts are available to all comers to have these disputes resolved.

[00:06:42] Speaker 01:
Is your position that even if you have some presence in the reservation, there's no jurisdiction if you can't really tie it to the cause of action?

[00:06:52] Speaker 03:
It needs to be relevant to, tied to the basis for that claim.

[00:06:58] Speaker 03:
That's correct, Your Honor.

[00:07:00] Speaker 03:
As the Supreme Court has said on more than one occasion, tribal court jurisdiction is not in for a penny, in for a pound.

[00:07:07] Speaker 03:
The conduct that is pointed to must give rise to the claim at issue.

[00:07:12] Speaker 03:
And for the same reason,

[00:07:15] Speaker 03:
this presence issue and the need to have this direct relationship to the claim, the First Montana exception does not apply either, even though that was not touched upon by the district court.

[00:07:30] Speaker 03:
Additionally, in First Montana exception, there are two other requirements which we address in our brief.

[00:07:36] Speaker 03:
One is actual consent to tribal court jurisdiction.

[00:07:41] Speaker 03:
And if the court looks at its previous decisions on what constitutes consent, it is, again, we'll find in those cases, the facts are that the defendant was present on the reservation performing the acts that gave rise to the claim.

[00:08:01] Speaker 03:
And in most cases, there was actually an explicit acknowledgment that they would be controlled by tribal law.

[00:08:10] Speaker 03:
under the First Montana exception, there's the second requirement, or the third, actually, that the dispute must implicate an inherent tribal sovereign interest.

[00:08:22] Speaker 03:
And in Plains Commerce, the Ninth Circuit defined that as conditions on entry, that does not exist here, that it must be necessary to preserve tribal self-government.

[00:08:35] Speaker 03:
In other words, the tribe must have the power to govern that particular conduct

[00:08:40] Speaker 03:
in order to be able to continue self-government.

[00:08:43] Speaker 03:
That certainly is not the case in terms of regulating insurance, which in fact this tribe does not do.

[00:08:49] Speaker 01:
Sorry if I can interrupt here.

[00:08:52] Speaker 01:
The facts here are a slightly more gray area here because I'm assuming, it seems like the district court assumed Alliant was some sort of agent, whether that's true or not, I don't know.

[00:09:02] Speaker 01:
seems to suggest Allian was acting as an agent for the insurance company.

[00:09:06] Speaker 01:
So maybe you have some physical presence.

[00:09:09] Speaker 01:
And here, it's not like other digital transactions, opening a Schwab account or anything like that, because it did insure property on the reservation.

[00:09:19] Speaker 01:
So factually, whether that's enough, I don't know.

[00:09:23] Speaker 01:
But it seems slightly different from some of the other cases.

[00:09:28] Speaker 03:
I would say, Your Honor, that it is not, well, it's slightly different in that that is far less contact with the reservation than any case that has found jurisdiction.

[00:09:43] Speaker 03:
That here, again, it is not conduct that's specifically connected to the claim.

[00:09:50] Speaker 03:
As the Court has suggested, there's a question as to this agency, but I would suggest whether or not Aliant is the agent.

[00:09:57] Speaker 03:
is irrelevant to the analysis because it is not in for a penny, in for a pound.

[00:10:03] Speaker 03:
And being there gathering underwriting information for a renewal is a lot different than receiving a claim off the reservation and assessing whether or not that claim is covered.

[00:10:15] Speaker 03:
And I see my time is up.

[00:10:16] Speaker 02:
Can I just ask one quick question?

[00:10:17] Speaker 02:
Of course, Your Honor.

[00:10:18] Speaker 02:
Any particular reasons you're in this Indian insurance business that nobody thought in the contract

[00:10:27] Speaker 02:
to indicate what a court of competent jurisdiction was?

[00:10:31] Speaker 03:
Sure, Your Honor.

[00:10:33] Speaker 02:
Perhaps in the future you're going to?

[00:10:35] Speaker 03:
Well, two quick responses, if I may.

[00:10:37] Speaker 03:
One is, as was pointed out in the Cabezon judge's brief, there's been one decision in the life of this program where a tribal court became involved and found jurisdiction.

[00:10:49] Speaker 03:
That was the Jehalis decision 10 years ago.

[00:10:52] Speaker 03:
in the hundreds of years of collective insurance coverage, meaning the number of tribes times the number of years.

[00:10:59] Speaker 03:
That's the one instance they can point to.

[00:11:02] Speaker 03:
Secondly, Your Honor, in the service of suit clause that is present in this case, we would suggest that it is highly indicative of the assumption and the understanding that any claims would be addressed within a state or federal court.

[00:11:19] Speaker 03:
The service of suit clause says that nothing in this clause constitutes a waiver of the insurer's right to remove an action to a United States district court, something that we know you cannot do in a tribal court, which is outside of the constitutional framework, or to seek transfer of a case to another court as permitted by the laws of the United States or any state, again, something that can't be done from a tribal court.

[00:11:46] Speaker 03:
And finally, it states the pursuant

[00:11:48] Speaker 03:
to any statute or any state, territory, or district of the United States, doesn't mention tribal court statutes, the insurers hereby designate the superintendent, commissioner, or director of insurance, or other officer specified for that purpose in the state or district statute as their true and lawful attorney upon whom may be served any lawful process.

[00:12:13] Speaker 03:
So the working assumption in this program across the many years it has been in place is that this is all going to be resolved within a state or federal framework, not a tribal framework.

[00:12:25] Speaker 05:
Thank you.

[00:12:26] Speaker 05:
I know you wanted to save some time, but let me ask you a quick question here.

[00:12:29] Speaker 05:
Are you familiar with the Lexington Insurance versus Smith case that was argued in this court before a different panel last August, I think it was?

[00:12:39] Speaker 03:
Yes, Your Honor.

[00:12:40] Speaker 03:
That would have been me.

[00:12:41] Speaker 03:
I'm sorry, I thought of it as the Suquamish case.

[00:12:45] Speaker 03:
Yes, Your Honor.

[00:12:47] Speaker 05:
All right.

[00:12:47] Speaker 03:
It was a sunny day in Seattle.

[00:12:49] Speaker 05:
That panel's going to probably have some priority over figuring out the issues.

[00:12:53] Speaker 05:
You see the overlap in the issues.

[00:12:55] Speaker 03:
Very much so, Your Honor.

[00:12:56] Speaker 03:
And I would not dare to suggest to the court who should take precedence.

[00:13:02] Speaker 03:
But I agree, there's significant overlap between the two cases.

[00:13:05] Speaker 05:
All right, thank you.

[00:13:20] Speaker 04:
Good morning, Your Honors.

[00:13:21] Speaker 04:
May it please the Court?

[00:13:22] Speaker 04:
Jay Shapiro on behalf of appellee and cross-appellant Martin Mueller.

[00:13:27] Speaker 04:
I'd like to start where Mr. Doran left off.

[00:13:30] Speaker 04:
That's with the service of suit provision.

[00:13:33] Speaker 04:
Mr. Doran says that the working assumption was that the case would be litigated in state or federal court, and the evidence for that is the references to maintaining the right to remove.

[00:13:45] Speaker 04:
I'd like to make sure that the Court is aware that

[00:13:49] Speaker 04:
There's also in that provision a language about preserving the right to transfer to a different forum.

[00:13:56] Speaker 04:
I think the best reading of the service of suit provision is that because Lexington had consented to the jurisdiction of any court of competent jurisdiction, it wanted to make sure it was clear that it wouldn't be stuck in that court if there were avenues, the normal avenues to get out of that court, whether that be by removal or by transfer.

[00:14:19] Speaker 04:
I don't think, however, that that excludes an understanding that this could have been brought somewhere else.

[00:14:25] Speaker 04:
We've already had reference to the Chehalis case.

[00:14:28] Speaker 04:
Lexington clearly knew quite a long time ago that it could be hailed into tribal court.

[00:14:33] Speaker 04:
It already had been.

[00:14:35] Speaker 04:
And Lexington obviously has very able lawyers, so they surely were keeping tabs on the development of the case law.

[00:14:43] Speaker 04:
So it would have known from cases like State Farm versus Turtle Mountain Fleet Farm out of the Eighth Circuit that it could be possibly hailed into tribal court, the All State versus Stump case.

[00:14:56] Speaker 04:
Even if you go back to the Iowa Mutual

[00:14:59] Speaker 04:
uh... and national farmers cases at the supreme court those at least telegraph the possibility that insurance companies can be hailed into tribal court potentially under certain circumstances that would later be developed in the law on the Montana exception setting aside the fact that the court of competent jurisdiction

[00:15:21] Speaker 05:
I don't know if that encompasses tribal authority or not, but setting that question aside, does it make any difference that the insured casinos on tribal land?

[00:15:29] Speaker 05:
Because I thought that our case law suggested that the Montana exception applies pretty much almost exclusively to questions of jurisdiction arises out of non-Indian land or its equivalent.

[00:15:42] Speaker 05:
So how does the fact that the casinos on Indian land affect the analysis of the exception?

[00:15:48] Speaker 04:
Sure, Your Honor.

[00:15:49] Speaker 04:
So in Knighton, this court recognized that in addition to jurisdiction pursuant to a tribe's inherent sovereign right to exclude, a tribe may also justify its exercise of jurisdiction if it satisfied the Montana exceptions.

[00:16:09] Speaker 04:
Knighton explains that the reason for that is the Montana exceptions embody these notions of

[00:16:15] Speaker 04:
Tribal sovereignty, the court says that Montana exceptions are rooted in these notions of tribal sovereignty.

[00:16:21] Speaker 04:
So even though the Ninth Circuit has plainly said that when you are talking about tribal land, you don't need to rely on Montana.

[00:16:31] Speaker 04:
because the case law has established, especially in the circuit, that Montana is a doctrine that applies to questions of jurisdiction over nonmembers on non-Indian fee land.

[00:16:42] Speaker 04:
Nonetheless, the Knighton Court undertook the Montana analysis.

[00:16:46] Speaker 04:
So we think that the Court can rely solely on the right to exclude, as the District Court did,

[00:16:52] Speaker 04:
But if the court wants to consider the Montana exceptions, it is certainly authorized to do so.

[00:17:00] Speaker 04:
And the satisfaction of the first Montana exception, the consensual relationship exception, would be a separate ground for justifying the tribal court's jurisdiction here.

[00:17:13] Speaker 01:
Can you elaborate that, you know, obviously, your friends on the other side say if we read the first exception under Montana broadly, then it's going to sweep in any transaction, you know, at the bank, brokerage, et cetera.

[00:17:27] Speaker 01:
Correct.

[00:17:29] Speaker 04:
So Mr. Doran said that there's no limiting principle here.

[00:17:33] Speaker 04:
that the slope is steep and slippery.

[00:17:36] Speaker 04:
And once you allow that, you allow anything.

[00:17:39] Speaker 04:
And that's simply not true.

[00:17:40] Speaker 04:
The limiting principle here, Your Honor, is one that's been articulated in many of the court's cases, but I'll just refer to the Smith versus Salish Kootenai case, where the court said that there must be a direct connection with tribal land.

[00:17:57] Speaker 04:
And you can also look to other cases, such as Grand Canyon-Skywalk case, where it said the dispute must center on tribal land.

[00:18:04] Speaker 04:
That is the limiting principle here.

[00:18:07] Speaker 04:
And you can't get more directly connected to tribal land than when the insurance company has voluntarily agreed to insure tribal land, tribal property that exists on tribal trust lands, and the insurance company knows

[00:18:26] Speaker 04:
It's within the tribe's reservation.

[00:18:28] Speaker 04:
That's the limiting principle.

[00:18:30] Speaker 04:
That's also why cases like Stiefel out of the Seventh Circuit are in opposite here.

[00:18:35] Speaker 04:
Where was the connection, much less the direct connection in that case, between the financial parties and the tribe's lands?

[00:18:47] Speaker 04:
They had a bond agreement.

[00:18:49] Speaker 04:
At best, there was a tenuous

[00:18:51] Speaker 04:
uh... connection in those cases between the non-indian the non-members and the tribal land so even if steeple had arisen in the ninth circuit we also would have found presumably that there was no jurisdiction under moraga would the same apply to mortgages or collateralized mortgages on property that's on tribal land if there is an insurance company if i understand your honors uh... i'm talking about mortgages

[00:19:18] Speaker 04:
If I'll answer it this way, if the mortgage company voluntarily

[00:19:25] Speaker 04:
writes a mortgage on property that it knows or should know is on tribal lands, and the dispute arises out of that consensual agreement, that contract for mortgage, then the answer would be yes.

[00:19:38] Speaker 04:
But again, that would be premised on the mortgage company having knowingly written a mortgage on land that is within the tribe's reservation.

[00:19:49] Speaker 04:
That's essentially what we have here, Your Honor, although here, again, I would say that the connection is even more direct because the whole reason for the insurance policy is to protect this valuable tribal asset.

[00:20:03] Speaker 04:
Lexington had written policies for more than 10 years.

[00:20:07] Speaker 04:
This is established in the joint statement of facts below.

[00:20:10] Speaker 04:
It's agent, and I want to be clear, Your Honors, the district court found that Alliant was Lexington's agent.

[00:20:19] Speaker 04:
You can see that on ER 23 and 24 within the court's decision.

[00:20:24] Speaker 04:
And that is a finding of fact that would be deferred to unless there's clear error there.

[00:20:31] Speaker 05:
So there are... Can you respond to your opposing counsel's argument that even assuming a line was an agent, their activities are not sufficiently connected to the claim such that... So I disagree with... There would be jurisdiction and the power to exclude.

[00:20:46] Speaker 04:
I disagree with that, Your Honor, because the purpose of Alliant and its visits to the reservation were specifically to gather information, to write the policy.

[00:20:57] Speaker 04:
And the policy is what this dispute is arising out of.

[00:21:01] Speaker 04:
Now, I will say that I don't think we need to rely on that physical presence of Lexington's agent in this case.

[00:21:11] Speaker 04:
as I believe Your Honor yourself noted, we're a long way from Pinoyer versus Neff, where physical presence was the standard.

[00:21:22] Speaker 04:
And so here, we have to be aware of that commerce, contractual relationships are often done remotely.

[00:21:32] Speaker 04:
But here again, we had

[00:21:34] Speaker 04:
Lexington writing a policy that it knew it was insuring the tribes land on the reservation.

[00:21:42] Speaker 04:
That conduct is directed there.

[00:21:44] Speaker 04:
That is doing business on the reservation.

[00:21:47] Speaker 04:
The fact that it was doing business from off the reservation, I think, is immaterial.

[00:21:53] Speaker 04:
That would be prioritizing form over function, your honor.

[00:21:58] Speaker 04:
what's more remember that in the all stay all state versus stump case this court plainly contemplated the exercise of jurisdiction that we're asking the court to recognize here especially if you look at the final paragraph of that decision it says in so many words if we

[00:22:17] Speaker 04:
were certain that the relationship between all state and the members arose.

[00:22:24] Speaker 04:
If the dispute arose out of a consensual relationship, this case would be subject to tribal court jurisdiction.

[00:22:30] Speaker 04:
But out of an abundance of caution, you might say, there was exhaustion required in that case, because it was possible that the dispute arose not out of that consensual insurance relationship, but out of a Montana statute.

[00:22:47] Speaker 04:
I'd like to briefly touch on Mr. Doran's point that Plains Commerce Bank somehow added a requirement to the Montana analysis.

[00:22:57] Speaker 04:
I don't think this withstands scrutiny.

[00:23:00] Speaker 04:
For one thing, if you read Plains Commerce Bank and especially read the Montana case that it cites,

[00:23:06] Speaker 04:
You'll see that the comment that tribal jurisdiction must be premised on protection of sovereign interests and controlling internal relations, that was describing the types of matters that a tribe would have jurisdiction over.

[00:23:23] Speaker 04:
And then promptly in Montana, the court then announces the two Montana exceptions.

[00:23:30] Speaker 04:
The exceptions embody those interests.

[00:23:33] Speaker 04:
Those interests aren't a gloss on the exceptions.

[00:23:35] Speaker 04:
They inhere in it.

[00:23:37] Speaker 05:
Thank you, counsel.

[00:23:37] Speaker 05:
You're actually over time.

[00:23:39] Speaker 04:
My apologies.

[00:23:39] Speaker 04:
Thank you.

[00:23:40] Speaker 04:
Appreciate your argument.

[00:23:50] Speaker 00:
morning it may please the court Glenn Feldman I'll be arguing the cross appeal on behalf of the tribal court judges and I'd like to reserve one minute if I may all right I'll try to help you but keep your eye on the clock all right thank you I'd like to present three points in support of the cross appeal this morning first what we're asking the court to do here is exactly what the court with the Ninth Circuit has done in at least two previous cases

[00:24:19] Speaker 00:
to very analogous cases, and that is to take the holding of a Supreme Court decision that involves states and state actors and apply it to tribes and tribal actors.

[00:24:32] Speaker 00:
Secondly, this Court isn't bound

[00:24:35] Speaker 00:
by the previous decisions of the Ninth Circuit that have allowed ex parte Young-based claims to proceed against tribal judges, because none of those cases addressed or considered the jurisdictional question that we are presenting in this case for the first time, that is the Article III case or controversy question.

[00:25:00] Speaker 00:
If the court agrees with us and directs that Lexington's claims against the tribal court judges must be dismissed, Lexington will still have effective federal court remedies available to it before the Cabezon ban could enforce a tribal court judgment against Lexington.

[00:25:20] Speaker 00:
Now with respect to the first point, this court twice has taken non-Indian Supreme Court cases and applied them to Indian tribes.

[00:25:30] Speaker 00:
It did the first in 1991 in Burlington Northern versus Blackfeet Tribe.

[00:25:37] Speaker 00:
That was the first case in which the Ninth Circuit applied ex parte young to an Indian tribe.

[00:25:43] Speaker 00:
Now remember, ex parte young didn't mention Indian tribes, didn't say a word about them.

[00:25:49] Speaker 00:
Yet in Burlington Northern, the court applied the rule and reasoning of ex parte young to tribes and tribal officials.

[00:25:59] Speaker 00:
It did that without much analysis.

[00:26:01] Speaker 00:
And what the court said, and we've quoted this in the brief, the court said there is no reason for not applying this rule to tribal officials.

[00:26:08] Speaker 00:
So in Burlington Northern, the court did exactly what we're asking this court to do with respect to ex parte, with respect, excuse me, with respect to whole women's health.

[00:26:18] Speaker 00:
And that is apply the rule and reasoning of that case to tribal officials.

[00:26:23] Speaker 00:
Now secondly, and more recently, and I think even more relevantly, this court decided acres bonusing versus Marston just a couple of years ago, 2021.

[00:26:34] Speaker 00:
In that case,

[00:26:35] Speaker 00:
the court held that tribal court judges were entitled to the same absolute judicial immunity enjoyed by federal and state court judges.

[00:26:45] Speaker 00:
But significantly, the court in that case cited and relied on a case called Muralis versus Waco, a Supreme Court decision that didn't involve Indian tribes, didn't mention Indian tribes, didn't mention Indian tribal court judges.

[00:27:00] Speaker 00:
It involved the judicial immunity of a California state court judge.

[00:27:05] Speaker 00:
But the court in acres bonusing had no hesitancy in applying that non-Indian ruling to tribal court judges and defined that they enjoyed the same judicial immunity.

[00:27:16] Speaker 01:
But the difference here is when we expanded or applied Ex parte Young to tribal courts, we didn't have precedent precluding us from it.

[00:27:24] Speaker 01:
So we reasoned, OK, it applies.

[00:27:26] Speaker 01:
We're now in a different situation now where we have our own precedent that we have to follow.

[00:27:35] Speaker 01:
Basically, we're not really getting over here this issue.

[00:27:39] Speaker 01:
We have to see if it's clearly irreconcilable.

[00:27:41] Speaker 01:
Can you address that?

[00:27:43] Speaker 00:
I don't think the irreconcilability issue is relevant here.

[00:27:47] Speaker 00:
I don't think the GAMI analysis is what we're looking at here.

[00:27:52] Speaker 00:
The court is not bound by those precedents that have allowed ex parte young claims to be advanced against tribal court judges, specifically because none of those cases addressed or considered the case or controversy jurisdictional question that we're presenting here for the first time to the Ninth Circuit.

[00:28:13] Speaker 00:
The Supreme Court addressed this exact question in Pennhurst versus Halderman many, many years ago.

[00:28:19] Speaker 00:
The court said there, and I'd like to read this quote, it's in our brief, when questions of jurisdiction have been passed on in prior decisions sub-solentio, a court is not bound when a subsequent case finally brings the jurisdictional issue to the forefront.

[00:28:36] Speaker 00:
And we would submit that's precisely what's happening here.

[00:28:39] Speaker 00:
And the Ninth Circuit took that exact position in Ordonez versus United States.

[00:28:46] Speaker 00:
Now, we discussed that in some detail in our reply brief.

[00:28:49] Speaker 00:
But just to remind the court, in Ordonez, 25 years earlier, the Ninth Circuit had decided a case called Martinson and held that liability claims could be advanced against the United States by federal prisoners under certain circumstances.

[00:29:06] Speaker 00:
25 years later, the same issue is in front of the Ordonia's court.

[00:29:09] Speaker 00:
But in this case, for the first time, the question of sovereign immunity was raised.

[00:29:15] Speaker 00:
And in that situation, the Ordonia's court said, we are not bound by Martinson and its progeny.

[00:29:22] Speaker 00:
We're being presented with a new jurisdictional question here.

[00:29:25] Speaker 00:
And the court said, we're not bound by Martinson.

[00:29:27] Speaker 00:
And in fact, we're writing on a clean slate.

[00:29:29] Speaker 00:
and the court then issued an opinion that was directly contrary to martinson in its progeny holding that those claims were not permissible because of the sovereign immunity argument that was presented to the court for the first time in uh...

[00:29:44] Speaker 00:
in the Ordonez case.

[00:29:45] Speaker 00:
And what the court said was, we are clarifying that earlier readings of Martinson were incorrect.

[00:29:52] Speaker 00:
And we think this court can and should do the same thing here on the basis of Whole Women's Health and therefore determine that the claims of Lexington against the tribal court judges are impermissible, no case or controversy presented, and the court should direct the... If I could ask, you said in passing that they would still have

[00:30:14] Speaker 02:
an opportunity, in effect, to contest the outcome of the Tribal Court.

[00:30:20] Speaker 02:
Ten seconds, tell me how they would do that.

[00:30:22] Speaker 00:
Coeur d'Alene Tribe versus Hawks, a 2019 decision of this court.

[00:30:28] Speaker 00:
If there is a tribal court judgment against Lexington, and if Cabezon Band seeks to enforce that off the reservation, which it would have to do, Coeur d'Alene teaches us that they would have to get a federal court order in order to enforce that tribal court judgment.

[00:30:46] Speaker 00:
And in Wilson versus Marchington, which we've also cited, is a perfect example of how effective that remedy is.

[00:30:54] Speaker 00:
Because in Wilson, the Ninth Circuit refused to enforce a tribal court judgment, specifically because it found that the tribal court did not have jurisdiction over the underlying claim.

[00:31:04] Speaker 00:
So they will have remedies.

[00:31:06] Speaker 00:
Not now, down the road, but they will have effective judicial remedies available to them.

[00:31:12] Speaker 05:
Thank you, counsel.

[00:31:13] Speaker 00:
Thank you.

[00:31:22] Speaker 03:
My clock says 1.57.

[00:31:24] Speaker 03:
I'm hoping for another minute or two.

[00:31:27] Speaker 03:
I will spend perhaps a minute 57 on the tribal jurisdiction question and then pivot quickly to Whole Women's Health if that works with the court.

[00:31:39] Speaker 03:
First of all, notice what you were not told.

[00:31:42] Speaker 03:
You were not told of a single case where jurisdiction has been found over an insurance coverage dispute in tribal court.

[00:31:49] Speaker 03:
The best the council could do was cite the court to Allstate v. Stump, which is an exhaustion case.

[00:31:56] Speaker 03:
And what Allstate v. Stump stated, the holding, was the insurer is an off-reservation entity that sold a policy to a tribal member, LaPlante, the Supreme Court authority, thus indicates that exhaustion is required here.

[00:32:12] Speaker 03:
No court outside of a single unpublished decision in the District of North Dakota

[00:32:17] Speaker 03:
has ever found tribal court jurisdiction over a dispute like this.

[00:32:24] Speaker 03:
Secondly, the court asked whether the fact that the casino is on, and I recognize the distinction between tribal property and fee property, but more fundamentally, the fact that the casino is on Indian property isn't the focal point of this analysis.

[00:32:40] Speaker 03:
The analysis of the jurisdictional question as to this non-member

[00:32:46] Speaker 03:
is what the non-member's conduct was on the reservation.

[00:32:52] Speaker 03:
And here, there was little, if any, if you accept the Alliant statement, but none relevant to the denial of the claim.

[00:33:03] Speaker 03:
And the nature of the relationship was a financial instrument between the two, as it was in Stifel.

[00:33:09] Speaker 03:
where a bank actually had control of the revenues of the casino, a far more embedded position within the casino.

[00:33:17] Speaker 03:
And counsel just told you that under Ninth Circuit law, there would be no jurisdiction in the under Ninth Circuit law.

[00:33:25] Speaker 03:
And then finally, counsel cited to broad language in, for example, the Grand Canyon skywalk about the dispute centering on tribal trust land.

[00:33:37] Speaker 03:
Grand Canyon skywalk addressed a glass-bottomed skywalk on tribal land over the brim, the rim, of the Grand Canyon, and who had the right to control that.

[00:33:50] Speaker 03:
Whatever the language was, the facts were that it was conduct on the reservation, turning quickly to the question of whole women's health.

[00:34:01] Speaker 03:
Now, the Cabezon judges would have 40 years of Supreme Court and Ninth Circuit authority

[00:34:07] Speaker 03:
overturned based on whole women's health.

[00:34:09] Speaker 03:
The standard for doing that, though, is that the prior circuit precedent must be clearly irreconcilable with whole women's health, that if it can be applied consistent with that new precedent, this court must do so, and that it's not enough for there to be tension.

[00:34:28] Speaker 03:
Well, I would suggest to the court that there's very little tension between whole women's health and the situation we have here.

[00:34:34] Speaker 05:
I think there's definitely some tension.

[00:34:36] Speaker 05:
The question is whether it's clearly irreconcilable.

[00:34:38] Speaker 03:
Fair enough, Your Honor.

[00:34:41] Speaker 05:
We understand.

[00:34:41] Speaker 05:
We've got your argument.

[00:34:42] Speaker 03:
OK.

[00:34:43] Speaker 03:
All right.

[00:34:44] Speaker 03:
Thank you very much.

[00:34:44] Speaker 05:
Thank you, Your Honor.

[00:34:45] Speaker 05:
I'll consult both sides, all sides, for your helpful arguments this morning.

[00:34:49] Speaker 05:
The matter is submitted.