dissenting in part and concurring in the result:

I agree that we must reverse but dissent from the holding that we lack subject matter jurisdiction. Instead, I would hold that the plaintiffs stated a federal common law cause of action, but would dismiss because they failed to exhaust tribal remedies.

I.

The court holds today that, while a plaintiff may state a federal common law cause of action for tribal abuse of its regulatory jurisdiction, it may not state a cause of action for abuse of its adjudicatory jurisdiction. This distinction lacks foundation in law or policy.

We have held that “the extent to which treaties and federal case law divest [a] tribe of the power to exercise civil jurisdiction over non-Indians” presents a federal question under 28 U.S.C. § 1331 (1982). Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d 587, 591 (9th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1707 , 80 L.Ed.2d 180 (1984). Accord, Cardin v. De La Cruz, 671 F.2d 363, 365 (9th Cir.1982), cert. denied, 459 U.S. 967 , 103 S.Ct. 293 , 74 L.Ed.2d 277 (1982).

It is clear too that a plaintiff may state a federal cause of action for improper taxation by an Indian tribe. Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 , 102 S.Ct, 894 , 71 L.Ed.2d 21 (1982); Snow v. Quinault Indian Nation, 709 F.2d 1319, 1321 (9th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 2655 , 81 L.Ed.2d 362 (1984).

The majority distinguishes these cases by noting that they all concerned alleged abuses of tribal regulatory jurisdiction, while our case concerns action by a tribal court. This distinction cannot be found in the cases and rests upon a strained reading of their facts.

Both Babbitt Ford and Cardin involved underlying actions in tribal courts against non-Indians. In Babbitt Ford, the tribal court held the non-Indian violated a tribal repossession regulation. 710 F.2d at 590-91 . In Cardin, the tribal court closed a grocery store based on the owner’s noncompliance with tribal building, health, and safety regulations. 671 F.2d at 364-65 . In each, the tribal court action was the immediate cause of the federal claim.

Admittedly, in each case the tribal court applied a rule of decision supplied by tribal regulations. It is difficult to believe, however, that our jurisdiction should turn on the source of the tribal rule.

If the tribal court in Cardin had closed the grocery store because it was deemed a public nuisance under tribal common law, the harm to the owner and the implicit question of tribal authority would have been the same. Under the majority’s analysis, the closure based on tribal regulations would create a federal question while the closure based on the tribal court’s interpretation of common law would not.

The distinction between adjudication and regulation may have some application in this area of law. Adjudicatory jurisdiction is often broader than regulatory jurisdiction, because a forum’s authority to adjudicate a controversy does not depend on its authority to regulate the underlying subject matter. See supra, at 1316 n. 3, and cases cited therein. But this distinction goes to the merits. It involves the propriety of the tribal court’s assertion of jurisdiction. It does not affect the existence of a federal question.

*1325 The majority suggests that recognizing a cause of action for abuse of tribal court jurisdiction would conflict with Santa Clara Pueblo v. Martinez, 436 U.S. 49 , 98 S.Ct. 1670 , 56 L.Ed.2d 106 (1978). There, the Supreme Court held that habeas corpus provides the sole federal remedy for alleged violations of the Indian Civil Rights Act (ICRA), 25 U.S.C. §§ 1301-1341 (1982). 436 U.S. at 70 , 98 S.Ct. at 1683 .

As noted above, however, Santa Clara Pueblo has not prevented us from finding that a federal common law cause of action exists for abuse of tribal jurisdiction. Babbitt Ford, 710 F.2d at 591 ; Cardin, 671 F.2d at 365 . Neither Santa Clara Pueblo nor the ICRA provide a basis for distinguishing between regulatory and adjudicatory actions by tribes.

The ICRA applies broadly to tribal “powers of self-government” which include “all governmental powers possessed by an Indian tribe, executive, legislative and judicial, and all offices, bodies, and tribunals by and through which they are executed.” 25 U.S.C. §§ 1301 (2), 1302. Santa Clara Pueblo did not distinguish between regulatory and judicial actions. In fact, the underlying dispute involved a tribal regulation. 436 U.S. at 51 , 98 S.Ct. at 1673 . A federal common law cause of action for abuse of tribal jurisdiction would be no more intrusive here than in Babbitt Ford, Snow, or Cardin.

Although I question the majority’s distinction between regulation and adjudication, I would join its opinion if I agreed that it was compelled by R.J. Williams Co. v. Fort Belknap Housing Authority, 719 F.2d 979 (9th Cir.1983), petition for cert. filed, — U.S. —, — S.Ct. —, — L.Ed.2d — (U.S. April 27, 1984).

R.J. Williams involved a claim for damages by a contractor against a tribal housing authority which had obtained a tribal court writ seizing the contractor’s property. The suit alleged jurisdiction based on diversity, the United States Constitution, the ICRA, and 42 U.S.C. § 1983 . It did not allege general federal question jurisdiction under federal common law, as in Babbitt Ford and Cardin. We held that the plaintiffs failed to allege a proper basis for federal court jurisdiction. Id. at 985 .

General federal question jurisdiction might have been proper in R.J. Williams, at least for the portions of the complaint which- sought non-monetary relief. But the plaintiff’s failure to allege or argue this basis for our jurisdiction distinguishes R.J. Williams from the present case. See Cardin, 671 F.2d at 365 n. 2 (distinguishing Trans-Canada Enterprises, Ltd. v. Muckleshoot Indian Tribe, 634 F.2d 474 (9th Cir.1980), because the. plaintiff there had not alleged general federal question jurisdiction).

I conclude that plaintiffs have stated a substantial federal question. Subject matter jurisdiction over their claim was proper under 28 U.S.C. § 1331 .

II.

My difference with the majority does not stem from any fundamental conflict over the policies at stake. Tribal courts are appropriate forums for the resolution of many disputes involving both Indians and non-Indians. Santa Clara Pueblo, 436 U.S. 65 , 98 S.Ct. 1680 . Federal courts must be hesitant to intervene in their proceedings, both as a matter of comity and to further the federal policy of protecting and strengthening tribal institutions. Janis v. Wilson, 521 F.2d 724, 727 (8th Cir.1975). See Santa Clara Pueblo, 436 U.S. at 62-64 , 98 S.Ct. at 1679-1680 .

I agree with the majority that the “proper forum for [determining the scope of tribal court jurisdiction], at least in the first instance, is not a federal court but a tribal court.” See supra, at 1323-24. The plaintiffs never afforded the tribal court the opportunity to rule on their jurisdictional claim. That alone makes federal court intervention at this stage inappropriate.

The majority, however, makes the tribal court the first and last arbiter of its own jurisdiction. An assertion of tribal court jurisdiction, no matter how far reaching, would not be subject to review in any fed *1326 eral court. If, for instance, a tribal court decided to adjudicate a controversy between a non-Indian plaintiff and a non-Indian defendant involving matters arising outside the reservation, its power would be limited only by the presence of seizable assets within the reservation. See supra, at 1324 n. 6 (indicating that tribal court defendants may seek review of tribal jurisdiction in collateral enforcement proceedings).

The interests that counsel non-intervention in tribal proceedings can be accommodated by less drastic means. Specifically, we should require plaintiffs to exhaust their remedies in tribal courts before seeking federal intervention.

There is precedent for this approach. Before the Supreme Court decided that the ICRA did not confer general federal jurisdiction over Indian civil rights actions, Santa Clara Pueblo, 436 U.S. at 72 , 98 S.Ct. at 1684 , we imposed an exhaustion requirement on plaintiffs seeking to bring those claims. See, e.g., Howlett v. Salish & Kootenai Tribes of the Flathead Reservation, 529 F.2d 233, 239 (9th Cir.1976); St. Marks v. Chippewa-Cree Tribe of Rocky Boy Reservation, 545 F.2d 1188 (9th Cir.1976). Accord, McCurdy v. Steele, 506 F.2d 653, 656-57 (10th Cir.1974); O’Neal v. Cheyenne River Sioux Tribe, 482 F.2d 1140 (8th Cir.1973).

The exhaustion requirement stated in these cases is not inflexible. St. Marks, 545 F.2d at 1189 . To determine whether exhaustion is appropriate in a given case, we must first determine whether (1) meaningful tribal remedies exist, and (2) exhaustion will serve the purposes of comity and strengthening tribal institutions. Finally, the court must balance the need to preserve and strengthen tribal institutions against any immediate need that would exist to adjudicate the plaintiffs alleged federal rights. Id.

Applying that test here, it seems that meaningful tribal remedies exist. The Crow Tribal Code would allow the plaintiffs to challenge the tribal court’s jurisdiction. Crow Rules of Civil Procedure, Rules 7(a) (permitting challenge to lack of personal or subject matter jurisdiction), 17 (permitting motion to set aside default judgment).

Second, requiring exhaustion here would strengthen the tribal court system. The plaintiffs ignored that system and instead attempted to circumvent it by suing immediately in federal court. Such disrespect for tribal institutions should be discouraged.

Finally, our interest in respecting and upholding the authority of the tribal court to determine, in the first instance, its own jurisdictional bounds exceeds any immediate need for federal court jurisdiction asserted by the plaintiffs. These factors indicate that the district court should have required the plaintiffs to exhaust their tribal remedies.

III.

The majority and I reach the same result by significantly different paths. I fear, however, that the majority’s jurisdictional approach will haunt us in other cases, by creating unworkable distinctions and by barring relief in cases where it is necessary and appropriate. In contrast, the exhaustion approach is flexible and closely tailored to the interests at stake.