Harvey, et al. v Ute Indian Tribe of the Uintah and Ouray Reservation et al.

Harvey appealed the dismissal of his claims against Tribe, tribal officers and business that stopped doing business with his companies after tribe issued a letter ordering them to do so. The Court, with two justices dissenting in part, affirmed in part and reversed and remand in part. It affirmed dismissal of the Counts against Tribe as Tribe asserted its sovereign immunity in its motions and thus did not take steps in litigation to waive it. It reversed in part the dismissal of claims against the tribal officials holding the inunctions sought against the officials are not subject to sovereign immunity and the claims seeking damages from the officials are done against the officials in their individual capacities and thus also not subject to sovereign immunity. The Court counselled the district court to be careful in proceeding with the claims absent the officials lest it intrude into tribal government and noted that the decision here is only about the dismissal not whether any of the claims are valid or if immunity actually exists.  It held Tribe is not an indispensable party as Harvey can get complete relief form the officials and injunctions to not enforce the letter, the officials will defend themselves in a manner consistent with the interests of Tribe and there is no way inconsistent obligations can result from litigating the claims without Tribe. The majority held that Harvey must exhaust tribal remedies as a matter of comity as the claims involve the right of tribe to regulate who may enter triable land and using tribal courts will promote tribal self-government promote judicial economy, provide the parties with an understanding of Tribe’s view of its jurisdiction and noted on remand the district court may either stay the case or dismiss. The Court affirmed denial of the rule of Civil procedure 15(d) motion to supplement as Harvey’s motion was untimely and would work prejudice to Tribe and other defendants as it was field after briefing and argument, but, it should be allowed as the case proceeds assuming no other problems. It affirmed dismissal as tote h businesses as Harvey failed to allege facts that any of the companies did anything wrong; agreed with anyone to do wrong acts; agreed to restrain trade; there is no private civil action for extortion; the state constitutional ban on interfering with employment is not self-executing and thus there is no private right of action; and Harvey failed to allege the alleged blacklisting was done maliciously. Himonas added a concurrence arguing that official status suits against officials are in reality against the tribe and thus courts can assume Tribe’s interests will be protected as Tribe will receive notice and different attorneys will represent the officials in their official capacity and in their individual capacity; that tribal exhaustion is necessary whenever a colorable claim of tribal jurisdiction exists, that this is so ion any court setting including state courts under United States Supreme Court precedent, it makes no sense to place state courts in a superior position to federal courts and the exhaustion requirement serves the interests of tribal self-government; treating the exhaustion requirement as exhaustion not abstention simplifies the analysis; and also argued that the district court should analyze whether or not a complaint against the tribal officers would be frivolous as part of the colorable jurisdiction analysis. Lee, joined by Durrant, dissented as to exhaustion arguing there is no United States Supreme Court precedent requiring exhaustion here and further argued that even if exhaustion applies it can only be triggered when a parallel case is actually pending in tribal court which did not occur here.