Wilson v. Short Bull et al

Filing 22

AMENDED ORDER DISMISSING CASE. Signed by Chief Judge Jeffrey L. Viken on 2/3/14. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
DIANE M. WILSON,
Plaintiff,
vs.
THOMAS SHORT BULL and
MICHELLE YANKTON,
Defendants.

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CIV. 12-5078-JLV
AMENDED ORDER

Plaintiff Diane M. Wilson, appearing pro se, filed an amended complaint
alleging she was wrongfully terminated from her employment as a Teacher
Assistant for the Wanblee Head Start program operated by the Oglala Lakota
College (“OLC”). (Docket 6). Defendants Thomas Shortbull and Michelle
Yankton filed a motion to dismiss the action for lack of jurisdiction. (Docket
12). The court referred defendants’ motion to United States Magistrate
Veronica L. Duffy for a report and recommendation. (Docket 17).
On July 10, 2013, Judge Duffy filed a report recommending the court
grant defendants’ motion and dismiss Ms. Wilson’s complaint without prejudice
for failing to exhaust her tribal remedies. Id. Ms. Wilson filed an objection to
the report, arguing “the tribal courts will not be impartial to [her] case due to
loyalty to OLC College.” (Docket 19).
Judge Duffy thoroughly discussed the doctrine of exhaustion of tribal
court remedies. (Docket 18 at pp. 6-10). The court adopts the magistrate

judge’s analysis of National Farmers Union Ins. Cos. v. Crow Tribe of Indians,
471 U.S. 845 (1985) and Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987).
As noted by the magistrate, there are four exceptions to the requirement of
exhaustion of tribal remedies. (Docket 18 at p. 10). Exhaustion is not
required: (1) where “assertion of tribal jurisdiction is motivated by a desire to
harass or is conducted in bad faith”; (2) where the action is “patently violative
of express jurisdictional prohibitions”; (3) “where exhaustion would be futile
because of the lack of adequate opportunity to challenge the court’s
jurisdiction”; and (4) “ ‘[w]hen . . . it is plain that no federal grant provides for
tribal governance of nonmembers’ conduct on land covered by Montana’s1 main
rule,’ so the exhaustion requirement ‘would serve no purpose other than
delay.’ ” Nevada v. Hicks, 533 U.S. 353, 369 (2001) (quoting National Farmers
Union Ins. Cos., 471 U.S. at 856, n. 21 & Strate v. A-1 Contrators, 520 U.S.
438, 459-60, n. 14 (1997)).
Ms. Wilson does not object to the magistrate judge finding she failed to
exhaust her tribal remedies. Rather, Ms. Wilson objects on the basis that she
does not believe the tribal courts can be impartial because of their connection
to OLC. (Docket 19). Ms. Wilson asserted this same argument in her response
to defendants’ motion to dismiss. (Docket 16). This contention does not fall
within any of the exceptions to the exhaustion requirement noted above. In
addition, the court agrees with the magistrate judge in finding exhaustion of
tribal remedies in this case is particularly appropriate because Ms. Wilson’s

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Montana v. United States, 450 U.S. 544 (1981).

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allegations are premised on the employment action of a tribally chartered
organization. The court finds Ms. Wilson is required to exhaust her tribal
remedies. Because Ms. Wilson has not exhausted those remedies, this court
lacks jurisdiction over her action. Accordingly, it is hereby
ORDERED that plaintiff’s objection to the report and recommendation
(Docket 19) is denied.
IT IS FURTHER ORDERED that the report and recommendation (Docket
18) is adopted in full.
IT IS FURTHER ORDERED that defendants’ motion to dismiss (Docket
12) is granted.
IT IS FURTHER ORDERED that plaintiff’s complaint is dismissed without
prejudice.
Dated February 3, 2014.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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