dissenting:

I respectfully dissent.

This case resembles - Pennzoil, in that the defendant sought federal court protection against a huge defeat in a tribunal other than a federal district court. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 , 107 S.Ct. 1519 , 95 L.Ed.2d 1 (1987). But there is one very big difference. The courts of Texas are bound by the Constitution of the United States. The courts of the Crow tribe are not. “As separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations of federal or state authority.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 , 98 S.Ct. 1670, 1675-76 , 56 L.Ed.2d 106 (1978).

Had Burlington Northern lost its ease in a court of a foreign country which did not accord due process, the judgment would not be enforceable in the United States. Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1410 (9th Cir.1995); Hilton v. Guyot, 159 U.S. 113, 205-06 , 16 S.Ct. 139, 159-60 , 40 L.Ed. 95 (1895). But Indian country is not foreign in this sense, so a judgment debtor in a tribal court cannot raise Bank Melli Iran as a bar to execution. It is hard to say what degree of comity or full faith and credit may be accorded to the tribal court decision, if the tribe seeks to execute on its judgment outside the reservation, see William C. Canby, American Indian Law 155-56 (1981); Felix S. Cohen, Handbook of Federal Indian Law 145 (1942), or what remedy, if any, Burlington Northern and others dependent on its trains may have if the tribe tears up its tracks and sells them for scrap, in the absence of a $250 million cash or equivalent supersedeas bond. 1 The district court made a wise decision to preserve the status quo pending completion of the litigation, and to avoid the risk of destruction of property if the bond could not be posted. We should leave the- district court order intact. State of Alaska v. Native Village of Venetie, 856 F.2d 1384 (9th Cir.1988) (preservation of status *872 quo appropriate, and no further exhaustion of remedies needed, though final judgment had not yet come down in tribal court).

Serious questions cast a shadow over the tribal court judgment. The two decedents were hit at a well marked crossing, where there had been no accident for fifty years. The train was going 41 miles per hour, well below the speed limit of 60. Both decedents were drunk—the 17-year-old driver of the car had a blood alcohol level of 0.18 percent, her mother, the passenger, who had allowed her daughter to drive, 0.32 percent. The experienced personal' injury lawyer who submitted an affidavit in connection with security for the judgment estimated the reasonable expectation for verdicts as $350,000 for the mother, $150,000 for the daughter. This $500,000 evaluation assumes that a reasonable jury could satisfy itself that the railroad did something negligent which caused the deaths, and that comparative negligence was less than 100%.

The trial appears to have been in the “wave the bloody shirt” 2 genre. Before voir dire, a judge of the Crow appellate court addressed the entire venire in the Crow language (Burlington Northern had not been given notice that the jurors would be so addressed in the Crow language), reminding them of “bodies scattered along the railway” in the past, and reminding them of their “genealogy”:

The reference to “genealogy” was not a mere metaphor. All but one of the seven empaneled jurors were related to the decedents. Acknowledging the “bodies scattered along the railway” theme, the decedents’ heirs stated in their opposition to judgment n.o.v. in tribal court that “what the trial was about” was that “there have, in fact, been many Crows killed by the BN and this is no secret.” There may be a tribal court jurisdiction issue, regarding this tort case over a non-tribal member defendant operating on an easement to which tribal land is subject.

If Burlington Northern posts the $250 million, it subjects the money to the decisions of a tribunal not bound by the Constitution. If it does not, it risks having its tracks across the reservation torn up and sold for scrap to satisfy the judgment. If it posts the money, the tribal court distributes it to the claimants, and the district court subsequently orders return of the money, enforcement of the district court’s order might be problematic.

A party must exhaust its tribal remedies before seeking relief in federal district court. National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 , 105 S.Ct. 2447 , 85 *873 L.Ed.2d 818 (1985); Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 , 107 S.Ct. 971 , 94 L.Ed.2d 10 (1987). Burlington Northern has done that. It applied to the tribal court for relief from the requirement that it post a $250 million supersedeas bond. The tribal court denied relief. Burlington Northern then appealed to the tribal court of appeals. That court had not ruled when the ten day automatic stay expired. At that time, there was nothing Burlington Northern could do, no relief which could be sought, in tribal court prior to levy of execution. Exhaustion was therefore complete at that time.

In order to avoid levy of execution before the tribal court of Appeals ruled, Burlington Northern petitioned the district court for a temporary restraining order. After the ten day automatic stay had expired, the tribal court did rule, but that ruling also gave Burlington Northern no practical relief. The tribal court of appeals ruled that in order to obtain a stay of execution, Burlington Northern had to post an acceptable surety bond, cash, letter of credit, government securities, pledges of specific physical assets and guarantee of payment and protection against transfers of assets. There is no reason why Burlington Northern should be required to wait and see what the trial court does before exhaustion is treated as complete. The tribal appellate mandate bound the trial court. The time for avoiding execution automatically had expired, and the requirements for what would have to be posted were set. All that remained was for Burlington Northern to turn over $250 million in one form or another, and ask the trial court whether the form was adequate.

A party need not exhaust tribal court remedies if exhaustion would be futile. “We do not suggest that exhaustion would be required where ... exhaustion would be futile because of the lack of an adequate opportunity to challenge the court’s jurisdiction.” National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 , 856 n. 21, 105 S.Ct. 2447 , 2454 n. 21, 85 L.Ed.2d 818 (1985). If exhaustion in a technical sense would require a final order from the trial court subsequent to the appellate tribal court’s mandate, then requirement of this order would be futile. As explained above, the trial court could not grant Burlington Northern relief, and as a practical matter, Burlington Northern might well be unable to challenge tribal court jurisdiction effectively if the tribal appellate court supersedeas decision could not immediately be challenged.

Our reversal fails to apply the deferential standard of review required for preliminary injunctions. The district court did not have to decide, and did not decide, whether Burlington Northern was right in its challenge to the tribal court decision, or that the tribal court lacked jurisdiction. It needed only to balance the probability of success on the merits against the other relevant considerations. See American Motorcyclist Ass’n v. Watt, 714 F.2d 962, 965 (9th Cir.1983). The district court recognized that exhaustion was required for a challenge in federal court to a tribal court decision, but concluded that as to supersedeas, it had been accomplished. Regardless of whether the district court was correct, a difference of opinion with respect to application of a correctly recognized legal principle can be reversed only for abuse of discretion, and is not subject to de novo review. Gregorio T. v. Wilson, 59 F.3d 1002 , 1004 (9th Cir.1995); Sports Form, Inc. v. United Press Int'l, 686 F.2d 750, 752 (9th Cir.1982).

Because the majority erroneously reviews de novo rather than for abuse of discretion, its opinion does not speak to whether the district court abused its discretion. For the reasons stated above, the probability of success on the merits was adequate to enable the district court to weigh irreparable harm. See Amoco Production Co. v. Village of Gambell, 480 U.S. 581 , 545, 107 S.Ct. 1396, 1404 , 94 L.Ed.2d 542 (1987).

There is also a very great public interest, weighed by the district court, because tearing up Burlington Northern’s tracks through the reservation would interfere with interstate commerce outside the reservation. Several affidavits were submitted by officers of electrical utilities in the Midwest, which depend on a reliable supply of coal carried by Burlington Northern trains. The railroad runs 20 to 25 trains per day across the Crow *874 reservation, 16 of which are coal trams bound for utilities in Minnesota and Wisconsin.

. The parties have recently filed a paper entitled "notice,” advising us that the judgment "has been reduced by Appellants” to $25 million, "that is, FIVE MILLION DOLLARS ($5,000,-000.00) for each claimant.” The claimants say that they "agree and stipulate” that “any appeal bond ... need only be in the amount of $25,000,-000.00 plus interest,” with payment to be conditioned on "whatever federal review is appropriate under the circumstances.” It is hard to know what to make of this change, or how it affects this case if at all, because there is no court order, stipulation by Burlington Northern, or supplementation of the record regarding any subsequent course of proceedings.

. "A symbol used to inflame to anger or to retaliative action—used specifically in the U.S. after the Civil War of any means employed to stir up or revive party or sectional animosity, especially in the phrase 'wave the bloody shirt.’ " Webster’s Third New International Dictionary 238 (1981).