Sharber

MEMORANDUM **

1. The district court did not err in concluding that tribal courts should have first opportunity to determine whether they have jurisdiction to hear actions based on the Family and Medical Leave Act. See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9,15 , 107 S.Ct. 971 , 94 L.Ed.2d 10 (1987) (“[Although the existence of tribal court jurisdiction presented a federal question within the scope of 28 U.S.C. § 1381 , considerations of comity direct that tribal remedies be exhausted before the question is addressed by the District Court.”); Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 855-56 , 105 S.Ct. 2447 , 85 L.Ed.2d 818 (1985) (holding that the inquiry over “whether a tribal court has the power to exercise civil subject-matter jurisdiction ... should be conducted in the first instance in the Tribal Court itself’).

The absence of any ongoing litigation over the same matter in tribal courts does not defeat the tribal exhaustion requirement. See United States v. Plain-bull, 957 F.2d 724, 728 (9th Cir.1992) (“Whether a tribal action is pending ... does not determine whether abstention is appropriate____ [W]e held that abstention ... was required…