Dry Creek Lodge Redux
The Tenth Circuit in Walton v. Tesuque Pueblo reversed a district court decision asserting jurisdiction under the Dry Creek Lodge exception. It was an easy case for the panel, as well it should be. The troubling part is that the appellate court had to reverse the lower court.
From the opinion:
Here, too, we have no difficulty concluding that the Dry Creek exception is inapplicable. The District Court held that Mr. Walton, like the plaintiffs in Dry Creek, had no tribal forum to settle the dispute. To the contrary, Mr. Walton successfully availed himself of a tribal forum, although the decision of that tribunal was ultimately unfavorable to him. A tribal court's dismissal of a suit as barred by sovereign immunity is simply not the same thing as having no tribal forum to hear the dispute, see Olguin, 87 F.3d at 404 (holding that the third prong of the Dry Creek exception is not met when a tribal court has expressly agreed to hear the dispute), and such a ruling would come into direct conflict with Santa Clara Pueblo. As such, the District Court erred in concluding it had jurisdiction pursuant to the Dry Creek exception over Mr. Walton's non-habeas claims against either the Tesuque Pueblo or its individual officers.