Peter J. St. Marks v. The Chippewa-Cree Tribe of Rocky Boy Reservation, Montana

The judgment from which St. Marks appeals is vacated, and the action is remanded to the district court for further proceedings.

St. Marks filed this action challenging the physical residency requirement of section 2, Article IY, of the tribe’s constitution and bylaws. He also sought to set aside the election in which he had been barred from running for tribal judge.

In entering its order dismissing the action on the ground that St. Marks had not exhausted his available tribal judicial remedies, the district court gave no effect to the intervening order of the tribal court dismissing plaintiff’s parallel intramural action seeking to nullify the tribal residency requirement.

Under the circumstances of this case, we hold that St. Marks did exhaust all available tribal judicial remedies pendente lite, even though he failed to do so before he filed this action. Howlett v. Salish and Kootenai Tribes, 529 F.2d 233 (9th Cir. 1976), suggests that such exhaustion is a jurisdictional precondition to filing in the district court, but the time element was not necessary to the decision and does not appear to have been a contested issue in Howlett .

Here the plaintiff sought the office of…