I. INTRODUCTION

16 Plaintiff Frank Pacino owns a partial interest in an allotment of land on the Round Valley 17 Indian Tribe’s Covelo reservation. The land cannot be leased without approval of both a majority 18 of its owners and the Secretary of the Interior. See 25 U.S.C. § 2218; 25 C.F.R. § 162.012. No 19 lease of the Allotment has been recorded pursuant to this process. In 2017, Pacino discovered 20 Defendants, the Olivers, had taken up residence on the allotment, installing a fence and a locked 21 gate. He asked the tribal police to evict them, but was told the police had been directed not to do 22 so. He contacted the Bureau of Indian Affairs, who sent a cease and desist letter. The tribal council 23 then passed a resolution purporting to approve a life tenure on the allotment for Cathy Oliver. 24 Pacino brought an ejectment action in Tribal Court, but the court dismissed the complaint because 25 it lacked subject matter jurisdiction. In the course of that action, however, the Olivers asserted a 26 right to be on the land, establishing federal court jurisdiction under the General Allotment Act 27 (although there are other jurisdictional issues, as discussed below). Rather than continuing on to 1 the Tribal Court of Appeals, Pacino filed this action. The full procedural history of the instant suit 2 need not be recited here; notably, this case was eventually stayed because Pacino had not 3 exhausted his administrative or tribal court remedies, and Pacino has since moved to lift the stay. 4 Because federal courts “should not intervene” until a tribe’s appellate review is complete, 5 Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 17 (1987), the central question is whether Pacino’s 6 untimely appeal satisfies the exhaustion requirement. To analyze the issue comprehensively, 7 supplemental briefing was requested of the Parties. Based on their submissions and the law on the 8 issue, the case must be dismissed. 9

II. DISCUSSION

10 The tribal court exhaustion doctrine is a prudential rule that, as a matter of comity, federal 11 courts “should not intervene” in matters before tribal legal institutions are given a “full 12 opportunity to consider the issues before them and to rectify any errors.” Iowa Mut., 480 U.S. at 13 16-17; see also Nat'l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985). The Supreme 14 Court has also enunciated exceptions wherein exhaustion would not be required, such as: 15 (1) “where an assertion of tribal jurisdiction ‘is motivated by a desire to harass or is conducted in 16 bad faith,’” (2) “where the action is patently violative of express jurisdictional prohibitions”; or (3) 17 “where exhaustion would be futile because of the lack of an adequate opportunity to challenge the 18 court’s jurisdiction.” Nat’l Farmers, 471 U.S. at 856 n.21; see also Strate v. A-1 Contractors, 520 19 U.S. 438, 459 n.14 (1997). 20 In an appeal to the first exception, Plaintiff also argues that the Tribal Court’s dismissal of 21 the case was conducted in bad faith, explaining that although he cited a different provision to show 22 the Tribal Court had jurisdiction over cases involving trespass to Indian allotments in his original 23 filing (Law & Order Code Chapter 5, Section 5.02, instead of Chapter 1, Section 1.03), it effected 24 an implied citation through reference of the Law & Order Code generally. Even if, as Plaintiff 25 argues, the decision to dismiss was inconsistent with precedent, that is insufficient in and of itself 26 to meet the high threshold that a showing of bad faith typically requires. Plaintiff’s allegations 27 therefore fail to show that the Tribal Court, by dismissing the case for want of jurisdiction, was 1 motivated by a desire to harass Plaintiff. 2 The conclusion that tribal court remedies are futile because the appellate court refused to 3 take up his untimely appeal is also unwarranted. Generally, futility is reserved only for the most 4 extreme cases, e.g., where the tribe does not have a functioning court system. See Grand Canyon 5 Skywalk Dev., LLC v. ‘Sa’ Nyu Wa Inc., 715 F.3d 1196, 1203 (9th Cir. 2013). That cannot be said 6 of the Round Valley Indian Tribe (“RVIT”), whose Tribal Court and Court of Appeals were 7 established by the RVIT Constitution, and operate pursuant to published rules. Among those rules, 8 Tribal Court of Appeals Rule 3(c)(iii) states that, despite Rule 3(a)’s requirements that all appeals 9 be made no later than thirty (30) calendar days after entry of the final written judgement or order 10 of the Tribal Court, “the Court of Appeals, may, at its discretion, grant relief from a late appeal 11 upon a showing of good cause and where the Court finds that no party would be prejudiced by the 12 requested relief.” RVIT Ct. Ap. R. Ct. 3(c)(iii). Though it does not appear that the judiciary’s 13 website is maintained,1 there are sufficiently established structures and procedures that leave little 14 basis upon which to conclude that RVIT courts do not function.2 Likewise, there is insufficient 15 evidence to conclude that the RVIT Court of Appeals exceeded its discretion in denying Plaintiff’s 16 appeal, which far exceeded the 30-day time limit. 17 Furthermore, although the law is not crystal clear on this point, the Ninth Circuit has held 18 that “futility” created by a party’s untimeliness does not suffice to excuse a lack of exhaustion:

19 Selam’s appeal of his right-of-confrontation claim in the tribal court of appeals would be futile now because tribal appellate procedure only entitled him to appeal 20 within thirty days of his conviction. But if we were to assume jurisdiction over an 21

22 1 As the homepage indicates, the RVIT judiciary’s website has not been updated since June 29, 2019, as the “next 6 months of tentatively scheduled Tribal Court dates” list dates from June 18, 23 2019 through November 19, 2019. See https://courts.rvit.org/ (emphasis in original). 24 2 Plaintiff’s allegation that the RVIT Tribal Court’s dismissal of the case was erroneous and “at the behest of the tribal council,” in violation of the separation of powers required by the 25 Constitution, Dkt. 102 at 2, is insufficiently supported by the allegations in the record and, more importantly, ill-suited for this court to review and decide, certainly in the first instance. See Nat'l 26 Farmers, 471 U.S. at 856 (explaining that cases that may implicate tribal self-government and self-determination should be conducted in the first instance in the Tribal Court itself); Iowa Mut. 27 480 U.S. at 15. unexhausted claim solely on the basis that it is now too late (“futile”) for Selam to 1 bring it, this would eviscerate the tribal court exhaustion requirement-at least in cases where parties have a limited period of time in which to file an appeal. 2 Therefore, we decline to consider the appeal of a judgment in the tribal courts futile 4 just because the dissatisfied party has neglected to file a timely appeal. Selam v. Warm Springs Tribal Corr. Facility, 134 F.3d 948, 954 n.6 (9th Cir. 1998) (cited 4 favorably in Alvarez v. Tracy, 773 F.3d 1011, 1018 (9th Cir. 2014), withdrawn and superseded on 5 other grounds in Alvarez v. Lopez, 835 F.3d 1024 (9th Cir. 2016)); see also Davis v. Mille Lacs 6 Band of Chippewa Indians, 193 F.3d 990, 992 (8th Cir. 1999) (“We do not think that the 7 exhaustion requirement has been satisfied when the absence of tribal appellate review stems from 8 the plaintiff’s own failure to adhere to simple deadlines.”). 9 By failing to file a timely appeal to the Tribal Court, Pacino has created a seemingly 10 insurmountable obstacle to this court exercising jurisdiction, paradoxical as it may be. He has not 11 exhausted his tribal court remedies, and will likely never be able to do so. Accordingly, this case 12 must be dismissed with prejudice. 13 It does, however, appear that Pacino can still pursue a state court action under Public Law 14 280, as discussed in a previous order. Previous orders have also outlined why Pacino must also 15 5 satisfy administrative exhaustion with the Bureau of Indian Affairs, but it appears Pacino still has 16 not formally appealed the BIA’s inaction. Either of these processes may be a more fruitful avenue. 17

5 ig This decision is surely a frustrating one for Plaintiff, who has doggedly trudged through the thicket of knotty legal questions in this case, unassisted by counsel, for a reward of multiple 19 courts professing that they lack jurisdiction to adjudicate his claim; all the while, trespassers are 20 allegedly squatting in his childhood home. The outcome is as regrettable as it is compelled. 21 22

IT IS SO ORDERED.

23 24 Dated: February 10, 2023 25 26 RICHARD SEEBORG 7 Chief United States District Judge 28 ORDER DISMISSING CASE CASE No. 18-cv-06786-RS