united states court of appeals for the tenth circuit ... · law firm was counsel of record to the...

UNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUIT

_______________________________________________________________

APPEAL NO. 09-5071_______________________________________________________________

CROWE & DUNLEVY, P.C.,Appellee,

v.

GREGORY R. STIDHAMAppellant.

_______________________________________________________________

Appeal from United States District Courtfor the Northern District of Oklahoma

Honorable Terence Kern, PresidingDist. Ct. No. 09-CV-095

_________________________________________________________________

BRIEF IN CHIEF OF APPELLANT(Corrected)

_________________________________________________________________Oral Argument Not Requested July 29, 2009

Marthanda J. Beckworth, OBA #10204Michael A. Simpson, OBA #21083ATKINSON, HASKINS, NELLIS, BRITTINGHAM, GLADD & CARWILE, P.C.1500 Park Centre525 South MainTulsa, Oklahoma 74103-4524Telephone: (918) 582-8877Facsimile: (918) 585-8096

Counsel for Appellant, Gregory R. Stidham

Case: 09-5071 Document: 01018109686 Date Filed: 07/29/2009 Page: 1

ii

TABLE OF CONTENTS

Page

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

SUMMARY OF LEGAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

LEGAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

I. The Federal Courts Lack Subject Matter JurisdictionBecause Judge Stidham is Entitled to Sovereign andJudicial Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15A. Sovereign Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15B. Judicial Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21C. Ex Parte Young Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

II. This Court Lacks Subject Matter Jurisdiction Becausethe Muscogee (Creek) Nation Courts Had Jurisdictionover the Law Firm pursuant to Montana v. United States. . . . . . . . . 27

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27-28

III. The Law Firm Failed to Join Indispensable Parties. . . . . . . . . . . . . . 34Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

IV. The Law Firm Is Not Entitled to Injunctive Relief. . . . . . . . . . . . . . 39Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45


iii

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

OPINION AND ORDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibit A


iv

TABLE OF AUTHORITIES

Cases Page

Adams v. Freedom Forge Corp.,204 F.3d 475, 484-85 (3d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Aid for Women v. Foulston,441 F.3d 1101, 1115 (10th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Atlantic City v. American Cas. Ins. Co.,254 F. Supp. 396 (D.N.J. 1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Big Horn County Elec. Coop. v. Adams,219 F.3d 944 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

BNSF Railway Co. v. Ray,297 Fed. Appx. 675 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

BNSF v. Vaughn,509 F.3d 1085, 1090-93 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Brandon v. Holt,469 U.S. 464, 471-72 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Burlington N. R.R. Co. v. Blackfeet Tribe,924 F.2d 899, 901 (9th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Burrell v. Armijo,456 F.3d 1159, 1174 (10th Cir 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Cole v. Ruidoso Mun. Schools,43 F.3d 1373 (10th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Coleman v. Court of Appeals,550 F. Supp. 681, 683 (W.D. Okla. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . 21


v

Confederated Tribes of Chehalis Indian Reservation v. Lujan,928 F.2d 1496 (9th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Davis v. United States,192 F.3d 951, 957 (10th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 35, 36, 37, 39

Enterprise Mgt. Consultants, Inc. v. United States,883 F.2d 890, 893 (10th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36

Estate of Arlinghaus,158 N.J. Super. 139, 385 A.2d 904 (1978) . . . . . . . . . . . . . . . . . . . . . . . . 33

Ex Parte Young,209 U.S. 123 (1908) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13, 25, 26, 27, 28

Franceschi v. Schwartz,57 F.3d 828, 831 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Frazier v. Simmons,254 F.3d 1247, 1253 (10th Cir.2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Gaming World Int’l, Ltd. v. White Earth Band of Chippewa Indians,317 F.3d 840, 850 (8th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Goldammer v. Fay,326 F.2d 268, 270 (10th Cir. 1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Greater Yellowstone Coalition v. Flowers,321 F.3d 1250, 1255 (10th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . 39, 40

In re Austrian & German Bank Holocaust Litigation,317 F.3d 91, 99 (2nd Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

In re Estate of Vernon,609 So.2d 128 (Fla. Ct. App. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33


vi

Iowa Mut. Ins. Co. v. LaPlante,480 U.S. 9, 14-15 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 17, 45

Johnson v. Shaines & McEachern, P.A.,835 F. Supp. 685 (D.N.H. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Kiowa Tribe of Oklahoma v. Manufacturing Techs., Inc.,523 U.S. 751, 754 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

LaBreau v. Dakota,815 F. Supp. 1074, 1077 (W.D. Mich. 1993) . . . . . . . . . . . . . . . . . . . . . . . 22

Larson v. Domestic & Foreign Commerce Corp.,337 U.S. 682, 689-90 (1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26

Lawrence v. Kuenhold,271 Fed. Appx. 763, 766 n.6 (10th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . 24

MacArthur v. San Juan County,309 F.3d 1216 (10th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31, 32

McClendon v. United States,885 F.2d 627, 633 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Miner Elec., Inc. v. Muscogee (Creek) Nation,505 F.3d 1007, 1009 (10th Cir. 2007) . . . . . . . . . . . . . . . . 15, 17, 18, 27, 44

Mireles v. Waco,502 U.S. 9 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22, 25

Montana v. United States,450 U.S. 544, 565-66 (1981) . . . . . . 2, 13, 22, 27, 28, 29, 30, 31, 32, 33, 34

Mustang Production Co. v. Harrison,94 F.3d 1382, 1984 (10th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28


vii

National Farmers Union Ins. Cos. v. Crow Tribe,471 U.S. 845, 856 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Native Am. Distrib. v. Seneca-Cayuga Tobacco Co.,546 F.3d 1288, 1293 (10th Cir. 2008) . . . . . . . . . . . . . . . . . . . 15, 17, 19, 20

Nevada v. Hicks,533 U.S. 353, 358-59 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 28

Northern States Power Co. v. Prairie Island Mdewakanton Sioux Indian Cmty.,991 F.2d 458, 460 (8th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Pearson v. Callahan,__ U.S. __, 129 S. Ct. 808 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Penn v. United States,335 F.3d 786, 789 (8th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Pennhurst State School & Hosp. v. Halderman,465 U.S. 89, 101 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Port Cities Props. v. Union Pacific R.R. Co.,518 F.3d 1186, 1190 (10th Cir. 1008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Pulliam v. Allen,466 U.S. 522 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

RoDa Drilling Co. v. Siegal,552 F.3d 1203, 1210 (10th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Rosquist v. Soo Line R.R.,692 F.2d 1107, 1111 (7th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Santa Clara Pueblo v. Martinez,436 U.S. 49 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25


viii

Saucier v. Katz,533 U.S. 194, 201 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Sifers v. Horen,22 Mich. App. 351, 177 N.W.2d 189 (1970) . . . . . . . . . . . . . . . . . . . . . . . 33

Smith v. Moffett,947 F.2d 442 (10th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Smith v. Salish Kootenai College,434 F.3d 1127, 1140 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Stump v. Sparkman,435 U.S. 349 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Tamini Partners, Ltd. v. Miccosukee Tribe of Indians,63 F.3d 1030, 1046-47 (11th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Theard v. United States,354 U.S. 278, 281 (1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Thlopthlocco Tribal Town v. Tomah,8 Okla. Trib. 451, 456-57 (Musc. (Creek) Dist. Ct. 2004) . . . . . . . . . . . . . . 6

Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc.,60 F.3d 27, 38 (2nd Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Trinity Industries, Inc. v. Myers & Assocs.,41 F.3d 229 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Vann v. Kempthorne,534 F.3d 741,750-51 (D.C. Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Virginia Petroleum Jobbers Ass’n v. Federal Power Comm’n,259 F.2d 921, 925 (D.C. Cir. 1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41


ix

Waterval v. District Court,620 P.2d 5 (Colo. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Wichita & Affiliated Tribes v. Hodel,788 F.2d 765, 774 (D.C. Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Willis v. Semmes, Bowen & Semmes,441 F. Supp. 1235 (E.D. Va. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33

Wyandotte Nation v. Sebelius,443 F.3d 1247, 1252 (10th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . 39, 40, 43

Other Authorities Page

1996 U.S.C.C.A.N. 4202, 4216 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

25 U.S.C. §§1301-1303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

28 U.S.C. §1292(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. §1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

42 U.S.C. §1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

42 U.S.C. §1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Fed. R. Civ. P. 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36, 37, 38, 39

Model Rule of Prof. Conduct 1.15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 44


x

STATEMENT OF RELATED CASES

There are no prior or related appeals to this case.


JURISDICTIONAL STATEMENT

Appellee/Plaintiff, Crowe & Dunlevy, P.C. (“Law Firm”), brought suit in the

United States District Court for the Northern District of Oklahoma, alleging that the

district court had federal question jurisdiction to enjoin enforcement of a court order

by Appellant/Defendant, the Honorable Gregory R. Stidham, in his capacity as a

Special Judge of the Muscogee (Creek) Nation District Court. (App. at 7.) Judge

Stidham moved to dismiss, including as his grounds that the district court lacked

subject matter jurisdiction based on Judge Stidham’s sovereign and judicial immunity.

(App. at 84-89.)

The district court ruled that it had subject matter jurisdiction and entered a

preliminary injunction against Judge Stidham on April 24, 2009 (the “Injunction”),

which restrained Judge Stidham from enforcing an order on remand from the Muscogee

(Creek) Nation Supreme Court. (App. at 335.) Judge Stidham timely appealed the

Injunction as of right to this Court on May 5, 2009. 28 U.S.C. § 1292(a)(1). (App. at

336-338.)

STATEMENT OF THE ISSUES

1. Judge Stidham was entitled to sovereign and judicial immunity because

he acted within his scope of authority as a tribal court judge.


2

2. The district court erred in applying Ex Parte Young to Judge Stidham as

Law Firm had made no allegation and submitted no proof that Judge Stidham violated

the United States Constitution or any federal statute.

3. Judge Stidham had jurisdiction over Law Firm under Montana v. United

States because Law Firm actively practiced in the Muscogee (Creek) Nation courts.

4. The district court erred in not dismissing this case for failure to join

necessary, indispensable parties, particularly the Justices of the Muscogee (Creek)

Nation Supreme Court.

5. The Injunction should not have been issued because Law Firm admitted

at the hearing before the district court that its argument in support of the required

element of “irreparable harm” was completely lacking in factual support.

STATEMENT OF THE CASE

Law Firm was counsel of record to the Thlopthlocco Tribal Town

(“Thlopthlocco”) in a case Law Firm filed in the Muscogee (Creek) Nation District

Court, styled as Thlopthlocco Tribal Town v. Anderson, et al. (the “Anderson

litigation). (App. 124-217.) Judge Stidham presided over the Anderson litigation

during the times relevant to this case. After Law Firm initiated an appeal relating to

attorney fees in the Anderson litigation, the Muscogee (Creek) Nation Supreme Court

ordered Law Firm to repay all attorney fees to its client until resolution of the Anderson


3

litigation. (App. at 223-224.) On remand, Judge Stidham subsequently entered an

order attempting to effectuate the supreme court’s decision. (App. at 225-226.)

Law Firm then brought this case in the district court seeking a declaratory

judgment and injunctive relief preventing Judge Stidham, as a tribal judge, from

enforcing a January 16, 2009, order of the Muscogee (Creek) Nation Supreme Court.

That January 16, 2009, order instructed Law Firm to repay its attorney fees to its client,

Thlopthlocco Tribal Town (“Thlopthlocco”), until Judge Stidham determined in the

litigation brought before him by Law Firm which of the competing Thlopthlocco tribal

members had the right to control Thlopthlocco’s operations, including paying its

attorney fees. Law Firm alleged that this January 16, 2009, order, and Judge Stidham’s

attempt to enforce it on remand, exceeded tribal jurisdiction because Law Firm is a

“non-Indian” and was not subject to tribal court jurisdiction

The Law Firm applied for a preliminary injunction on this basis, after which

Judge Stidham moved to dismiss for lack of subject matter jurisdiction, nonjoinder of

necessary parties, and venue. The district court heard oral argument on all issues on

April 16, 2009, and granted the Injunction on April 24, 2009.

STATEMENT OF FACTS


4

The Law Firm sued “Gregory R. Stidham” in the district court for actions

undertaken in his official capacity as a judge of the Muscogee (Creek) Nation District

Court. (App. at 7). In its Complaint, the Law Firm sought a declaratory judgment and

injunctive relief against Judge Stidham for attempting to enforce an order issued by the

Muscogee (Creek) Nation Supreme Court and sent to Judge Stidham on remand. (App.

at 12-14.)

The Law Firm’s claims in this case result from underlying litigation in the

Muscogee (Creek) Nation District Court filed by Michael McBride, Esq., a member

of the Law Firm, on behalf of his client, Thlopthlocco. (App. at 8-12.) The complaint

in the Anderson litigation was filed by Mr. McBride and two other attorneys with

Thlopthlocco, who were enrolled members of the Muscogee (Creek) Nation bar. (App.

at 146.) The Anderson litigation was filed by Law Firm essentially to prevent the

defendants from usurping control of the Thlopthlocco’s Business Committee, which is

Thlopthlocco’s governing body. (App. at 125-127.)

The Anderson complaint stated affirmatively that the Muscogee (Creek) Nation

District Court had subject matter jurisdiction to hear that dispute. (App. at 137-138.)

Among other things, the Anderson complaint sought to prohibit the defendants in that

action “from representing to banks or other financial institutions, corporations,

businesses, consultants, organization, law firms, accountants or other governments or


5

individuals that they currently hold any office or official capacity with Thlopthlocco.”

(App. at 145.) The Anderson complaint further asked the Muscogee (Creek) Nation

District Court to “declare null and void any purported official government actions of

Defendants and those acting in joint concert with them since June 5, 2007.” (App. at

145.) Finally, the Anderson complaint sought a declaration that the plaintiff,

Thlopthlocco’s then-existing Business Committee, was the “lawful leaders of

Thlopthlocco.” (App. at 145-146.)

Without question, Law Firm’s filings in the Anderson litigation placed the issue

of lawful control of the Thlopthlocco directly at issue in the Muscogee (Creek) Nation

courts. The Anderson complaint also placed at issue any contracts or representations

made to businesses or law firms concerning the authority of the Anderson defendants

to act on behalf of the Thlopthlocco. Law Firm also sought, on behalf of its client, a

ruling as to the legal authority of differing factions to govern the Thlopthlocco and to

expend its tribal funds. In filing suit in tribal court, the Law Firm, therefore, asserted

that it was “guided by the American Bar Association Model Rules of Professional

Conduct, Rule 1.13 ‘Organization As a Client’, in seeking relief from” the Muscogee

(Creek) Nation District Court. (App. at 139.) Accordingly, the central issue in

Anderson concerned the legal right to govern Thlopthlocco on a day-to-day basis,

including the procurement of contracts, such as Law Firm’s legal services.


6

While Thlopthlocco is a separate federally recognized Indian tribe, many of its

members are also enrolled members of the Muscogee (Creek) Nation. (App. at 36.)

Further, Thlopthlocco is organized as a “tribal town” of the Muscogee (Creek) Nation.

Thlopthlocco Tribal Town v. Tomah, 8 Okla. Trib. 451, 456-57 (Musc. (Creek) Dist.

Ct. 2004) (App. at 79-80). Law Firm was, at all relevant times, employed by an Indian

tribe recognized as a tribal town of the Muscogee (Creek) Nation, and whose enrolled

members are also members or eligible to be members of the Muscogee (Creek) Nation.

The Law Firm admits that it did business with Thlopthlocco by regularly billing it for

legal services, which Thlopthlocco paid with Thlopthlocco treasury funds – tribal

property belonging to citizens of Thlopthlocco, some of whom are dual citizens of the

Muscogee (Creek) Nation. (App. at 37.)

The Law Firm admits, as it must, that it represented Thlopthlocco as attorneys

of record in the Muscogee (Creek) Nation tribal court system, which necessarily

involved Thlopthlocco’s consent to the jurisdiction of those tribal courts. (App. at 36,

139.) In fact, the Anderson complaint stated that the Muscogee (Creek) Nation

“receives federal funding for judicial services allocated for Thlopthlocco’s behalf.”

(App at 138.)

In their capacity as counsel for Thlopthlocco, the Law Firm signed and filed

numerous pleadings in the District Court and Supreme Court of the Muscogee (Creek)


7

Nation in the Anderson litigation. (App. at 36-38.) Without question, members of the

bar of the Muscogee (Creek) Nation courts are subject to the regulatory jurisdiction and

control of the Supreme Court of the Muscogee (Creek) Nation.

Just as the attorneys who practice law in any other American court are subject

to that court’s jurisdiction and supervision, so too are attorneys who practice law in

tribal courts. In fact, on November 13, 2007, the Muscogee (Creek) Nation Supreme

Court assumed “jurisdiction and power to make and enforce rules governing the

professional conduct of lawyers who are members of the Muscogee Nation Bar

Association as they practice before the Court of the Muscogee Nation in the

administration of justice, and serve clients within the Muscogee Nation.” Accordingly,

the Supreme Court of the Muscogee (Creek) Nation adopted the Model Rules of

Professional Conduct then in effect. (App. at 227.) Of necessity, this adoption of the

Model Rules included (1) Rule 1.5, which regulates the fees charged by attorneys such

as the Law Firm, (2) Rule 1.13, which governs an attorney’s representation of an

organizational client such as Thlopthlocco, and (3) Rule 1.15(e), which requires

attorneys to segregate funds in which attorneys and a “third party” both claim an

interest, such as the Law Firm’s fees in the Anderson case.

The Law Firm cannot dispute that the Muscogee (Creek) Nation tribal courts

have jurisdiction over matters involving the fees paid in the Anderson litigation. The


8

Law Firm’s attorneys routinely represented Thlopthlocco before the tribal courts of the

Muscogee (Creek) Nation as members of the Muscogee (Creek) Nation bar who were

practicing law for profit on tribal property and being paid in tribal funds.

No doubt, substantial attorney fees had been incurred by both sides in the

continuing legal battle in tribal court. In fact, on behalf of Thlopthlocco, the Law Firm

demanded an award of attorney fees and costs from the Muscogee (Creek) Nation

District Court. (App. at 146.) The Law Firm obviously recognized that the Muscogee

(Creek) Nation District Court had jurisdiction to award such fees.

During the course of the dispute in tribal court, the Anderson defendants moved

for payment of their attorney fees from the Thlopthlocco’s funds in the same manner

that Law Firm’s fees were paid from Thlopthlocco’s tribal funds. (App. at 37.) Judge

Stidham agreed and entered an order on September 11, 2008, wherein he stated:

[T]he Court finds that Defendants’[] reasonable attorneys fees should bepaid from funds of Thlopthlocco Tribal Town, just as Plaintiffs’ attorneysfees have been [] paid Thlopthlocco Tribal Town. To do otherwise wouldallow Plaintiffs to pay their attorneys with the very real possibility that atthe close of this case Plaintiffs could be found not to be the recognizedTribal Governing Board while the Defendants might be determined to bethe recognized Governing Board, yet Plaintiffs’ attorneys fees would havebeen paid with no recourse by Defendants to recover those fees ifDefendants[] prevail.

IT IS THEREFORE THE ORDER OF THIS COURT thatDefendants’ attorneys are entitled to a reasonable attorney’s fee from thefunds of Thlopthlocco Tribal Town. Defendants are ordered to provide


9

this court with a detailed statement of attorney’s fees and costs advancedwithin ten (10) days of date of this order. Upon review and approval bythe Court, the Court orders that Thlopthlocco Tribal Town payDefendants’ attorney’s fees from tribal funds within ten (10) days fromthe date such fees are approved by Written Order of the Court.

(App. at 220.)

The Law Firm appealed the order of Judge Stidham to the Muscogee (Creek)

Nation Supreme Court. (App. at 37.) Once the Law Firm placed the issue of lawful

payment of attorneys’ fees before the Supreme Court, that court was duty bound to

examine the issue of payment of those fees. The Muscogee (Creek) Nation Supreme

Court reversed Judge Stidham’s decision in an order entered on January 16, 2009, by

Vice Chief Justice Houston Shirley. The Supreme Court also ordered the return of any

attorney fees paid from the Thlopthlocco treasury, including funds that had been paid

to the Law Firm:

It is premature to determine the issue of attorneys’ fees in this caseuntil the lawful governing body of Thlopthlocco is determined. Until then,it is unknown whether anyone among the litigants has the authority to voteto expend Thlopthlocco funds. In the interest of fairness, it is thereforeORDERED that no party is entitled to attorneys’ fees during thependency of these proceedings. The September 11, 2008 order of theDistrict Court is reversed with instructions to dismiss Defendants’ Motionfor Attorney Fees as premature.

It is further ORDERED that any attorneys’ fees paid from theThlopthlocco treasury to the Plaintiff’s counsel be returned and re-deposited into the treasury.


10

It is further ORDERED that at the conclusion of the District Courtproceedings the District Court can determine the issue of attorneys’ fees.

(App. at 65-66) (emphasis added).

In accordance with the directive issued to him by the Supreme Court of his

sovereign nation, Judge Stidham issued the following order on remand:

The Supreme Court of the Mus[c]ogee Creek Nation havingentered its order on the 16th day of January, 200[9] in the above entitledcause, the District Court issues the following order in conformancetherewith.

Plaintiff’s attorneys are ordered forthwith to return all attorneys’fees paid from the Thlopthlocco Treasury with proof of repaymentfurnished to this court on or before February 20, 2009.

(App. at 72.)

The Supreme Court’s January 16 order indicates that the court’s reasoning

behind this order – in addition to “fairness” – is that the Supreme Court did not want

any party paying legal fees from the Thlopthlocco treasury until the “lawful” leaders

of Thlopthlocco had been determined in the Anderson litigation. That determination,

as noted, was the very issue Law Firm put before the Muscogee (Creek) Nation courts

in filing the Anderson litigation in the first place.

On remand, Judge Stidham did exactly as the Supreme Court had ordered, i.e.,

he issued an order “in conformance” with the Supreme Court’s January 16 order.

Judge Stidham ordered the Law Firm “to return all attorneys’ fees paid from the


1 This contract is not in the record because the parties did not begin discovery inthe district court and Judge Stidham, therefore, did not have the opportunity to requestits production before the Injunction was issued.

11

Thlopthlocco treasury with proof of repayment furnished to this court on or before

February 20, 2009.” (App. at 225).

Instead of complying with Judge Stidham’s order, as directed by the Muscogee

(Creek) Nation Supreme Court, the members of the Law Firm resigned their Muscogee

(Creek) Nation bar, and attempted to withdraw their entries of appearance in the

Muscogee (Creek) Nation District Court. The Law Firm then filed its Complaint in this

case on February 24, 2009, four days after it was already in violation of Judge

Stidham’s order requiring it to repay its fees. (App. at 7.)

Law Firm’s request for injunctive relief was solely – and repeatedly – focused

on the allegation that, if forced to repay its fees to Thlopthlocco, Law Firm would never

be repaid because Thlopthlocco enjoys sovereign immunity as a federally recognized

Indian tribe. (App. 8, 13, 22-23.) When this argument was raised at the hearing before

the district court, however, Law Firm admitted that, in fact, Thlopthlocco’s contract

with Law Firm required Thlopthlocco to waive its sovereign immunity:1

MR. KINCAID: ... We believe that irreparable harm has beendemonstrated, both in the stipulations of fact that we have offered to theCourt in support, as well as by the statements of the defendant and itscounsel in connection with this particular litigation.


2 The transcript indicates this statement was made by Michael Salem, Esq., whois Thlopthlocco’s current counsel in the Anderson litigation and was present in thecourtroom in the audience. The answer was actually provided by Mr. McBride.

12

If Crowe is ordered to return the money to Thlopthlocco, thenThlopthlocco is a sovereign entity and we cannot sue them, nor can wesue the Muscogee Tribe in order to get a return of the fees.

THE COURT: Does your contract of engagement with the Tribe,particularly just with regard to this matter, have any provision in it thatgives up any of their sovereign immunity?

MR. KINCAID: No. Am I not correct, Michael, does not?

MR. [MCBRIDE2]: It does.

MR. KINCAID: It does. Okay.

THE COURT: So there is a possibility based on your contract that youcould sue the Tribe for your legal fees; is that correct?

MR. KINCAID: It is possible.

(App. at 300-301.) Thus, Law Firm effectively admitted at the injunction hearing that

its alleged “irreparable harm”, i.e., lack of legal recourse against Thlopthlocco, did not

actually exist.

Despite Law Firm’s admission that its claimed harm had no basis in fact, the

district court nonetheless granted Law Firm’s injunction request in an Order and

Opinion on April 24, 2009. Specifically, the district court found as to the injunction

application itself that, inter alia, “there is a significant risk that Crowe would be


13

without legal recourse to retrieve any returned fees, causing it additional harm.” (App.

at 330.)

SUMMARY OF LEGAL ARGUMENT

As Judge Stidham was sued in his official capacity, he is entitled to sovereign

and judicial immunity. The trial court’s reliance on Ex Parte Young as an exception to

immunity was misplaced because Law Firm has not alleged – and the trial court did not

articulate – any ongoing violation of the Constitution or federal statute as required by

the Young doctrine. The trial court’s view that exceeding common law dictates

regarding tribal jurisdiction could be the basis for a “violation” of federal law was

legally incorrect.

The district court’s factual analysis of Judge Stidham’s jurisdiction was also

incorrect because, under Montana and its progeny, Judge Stidham (and the Muscogee

(Creek) Nation Supreme Court) clearly had jurisdiction over Law Firm. Law Firm’s

attorneys had appeared and practiced before the tribal court in litigation where Law

Firm’s fees, and Thlopthlocco’s authority to pay them, were at issue.

As an alternative to the immunity defenses, the trial court should have dismissed

this case for failure to join necessary parties. Law Firm was really seeking to restrain

the January 16, 2009, order of the Muscogee (Creek) Nation Supreme Court. That

court’s order – not Judge Stidham’s attempt to enforce it on remand – is what caused


14

Law Firm its alleged “harm”. Without the Muscogee (Creek) Nation Supreme Court’s

Justices in this case, the Injunction is incomplete relief as nothing prevents the tribal

court from enforcing its order through another judge.

The trial court also improperly entered the Injunction because the Law Firm’s

sole allegation of “irreparable harm” in seeking an injunction was that Thlopthlocco

might not pay back Law Firm’s fees at issue because Thlopthlocco enjoys sovereign

immunity. Law Firm admitted at oral argument, however, that Thlopthlocco had

waived its immunity, which completely destroyed the already speculative basis for its

injunction claims. The Injunction, therefore, should not have been granted as there was

no evidence to support it.

LEGAL ARGUMENT

I. The Federal Courts Lack Subject Matter Jurisdiction Because JudgeStidham is Entitled to Sovereign and Judicial Immunity.

A. Sovereign Immunity

Issues related to immunity, including sovereign immunity, are threshold questions

of law. See Saucier v. Katz, 533 U.S. 194, 201 (2001), receded from on other grounds

by Pearson v. Callahan, __ U.S. __, 129 S. Ct. 808 (2009). Accordingly, the legal


15

underpinnings of questions of immunity and subject matter jurisdiction are reviewed by

this Court de novo. See Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 546 F.3d

1288, 1293 (10th Cir. 2008).

Congress has enunciated a strong interest in promoting tribal sovereignty,

including the developing tribal courts. Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14-

15 (1987); see also Smith v. Moffett, 947 F.2d 442 (10th Cir. 1991). Tribal sovereign

immunity deprives a court of subject matter jurisdiction to decide any of the other

matters between the parties. See Miner Elec., Inc. v. Muscogee (Creek) Nation, 505

F.3d 1007, 1009 (10th Cir. 2007). In deference to the strong public interest in

development of tribal courts, the “federal courts have acknowledged the need to allow

tribal courts to make an initial determination of tribal jurisdiction over matters arising

on Indian [lands].” Smith, 947 F.2d at 444 (emphasis added).

In this case, the Law Firm omitted from the Complaint any specific reference to

whether Judge Stidham was sued in his individual capacity or his official capacity.

Even a cursory reading of the Complaint, however, shows that Judge Stidham was sued

for acts conducted as a Special Judge of the Muscogee (Creek) Nation. (App. at 10,

¶¶13-16.) A lawsuit against a government agent in his or her official capacity is

nothing more than a claim against the entity. Brandon v. Holt, 469 U.S. 464, 471-72


16

(1985). In an official capacity lawsuit, there is no need to name the individual

defendants. Id.

The reasons for the Law Firm’s failure to designate this specifically as an official

capacity lawsuit are apparent. As the Law Firm itself recognized in its injunction

application, the Muscogee (Creek) Nation is immune from suit as a federally

recognized Indian tribe. (App. at 23.) This immunity results from the United States

Supreme Court’s repeated recognition of Congress’s “policy of supporting tribal self-

government and self-determination.” National Farmers Union Ins. Cos. v. Crow

Tribe, 471 U.S. 845, 856 (1985); see also Iowa Mutual, 480 U.S. at 14 (citing cases).

Thus, Indian tribal governments, such as the Muscogee (Creek) Nation, enjoy the same

immunity from suit enjoyed by other sovereign powers and are “subject to suit only

where Congress has authorized the suit or the tribe has waived its immunity.” Kiowa

Tribe of Oklahoma v. Manufacturing Techs., Inc., 523 U.S. 751, 754 (1998).

This sovereign immunity extends to “sub-entities or enterprises of a tribe.”

Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 491 F. Supp. 2d 1056, 1064

(N.D. Okla. 2007), aff’d 546 F.3d 1288 (10th Cir. 2008). In fact, the federal courts

have long recognized that tribal courts “play a vital role in tribal self-governance.”

Iowa Mut. Ins. Co., 480 U.S. at 14.


17

This Court was faced with similar issues concerning the jurisdiction of the courts

of the Muscogee (Creek) Nation in Miner Electric. In Miner Electric, the Muscogee

(Creek) Nation had seized the plaintiffs’ vehicle after finding illegal drugs inside when

it was parked at a casino in Indian country. The Muscogee (Creek) Nation District

Court ordered a forfeiture of the truck, which the Muscogee (Creek) Nation Supreme

Court upheld on appeal. 505 F.3d at 1008.

Like the Law Firm in this case, the plaintiffs in Miner Electric filed an action for

declaratory and injunctive relief, claiming the tribal court had exceeded its authority.

They claimed that the actions by the tribal courts had deprived them of their property

in violation of due process. They sought an injunction against the execution of the

forfeiture order and a declaration that the tribal court did not have jurisdiction over

them. Id. at 1009.

On appeal from an order which had granted summary judgment for the plaintiffs,

this Court reversed and ordered dismissal, noting its “straightforward test to uphold

Indian tribes’ immunity from suit.” Id. at 1010. The court cited the well established

principle that as “‘a matter of federal law, an Indian tribe is subject to suit only where

Congress has authorized the suit or where the tribe has waived its immunity.’” Id. at

1009 (quoting Kiowa Tribe, 523 U.S. at 754). Like the Law Firm in this case, the


18

plaintiffs in Miner Electric did not contend that the immunity of the Muscogee (Creek)

Nation had been abrogated by Congress or waived by the Nation. Id. at 1010.

Instead, like the plaintiffs in Miner Electric, the Law Firm alleged that the distict

court has federal question jurisdiction to decide the “scope of adjudicative jurisdiction

of the Muscogee Nation.” (App. at 7, ¶3). The Tenth Circuit soundly rejected this

argument in Miner Electric, wherein it stated that “[w]e disagree that federal-question

jurisdiction negates an Indian tribe’s immunity from suit.” Id. at 1011. Accordingly,

the Tenth Circuit held that federal question jurisdiction only exists when one of the

exceptions to tribal sovereign immunity is present – Congressional abrogation or

unequivocal waiver. Id. at 1011. In the instant case, there were no allegations in the

Complaint, nor could there be, that Congress has abrogated Judge Stidham’s immunity

as an officer of the Muscogee (Creek) Nation District Court, or that he has somehow

waived that immunity.

Further, this Court recently reaffirmed that tribal sovereign immunity extends to

individual officers of the tribe also named as parties:

It is clear that a plaintiff generally may not avoid the operation oftribal immunity by suing tribal officials; “the interest in preserving theinherent right of self-government in Indian tribes is equally strong whensuit is brought against individual officers of the tribal organization aswhen brought against the tribe itself.” . . . Accordingly, a tribe’simmunity generally immunizes tribal officials from claims made againstthem in their official capacities. . . . The general bar against


19

official-capacity claims, however, does not mean that tribal officials areimmunized from individual-capacity suits arising out of actions they tookin their official capacities, as the district court held. . . . Rather, it meansthat tribal officials are immunized from suits brought against thembecause of their official capacities – that is, because the powers theypossess in those capacities enable them to grant the plaintiffs relief onbehalf of the tribe.

Native American Distrib., 546 F.3d at 1296 (footnote omitted; citations omitted). The

above analysis requires a federal court to “ask whether the sovereign ‘is the real,

substantial party in interest.’” Id. at 1296 (quoting Frazier v. Simmons, 254 F.3d 1247,

1253 (10th Cir.2001)). Such answer generally “‘turns on the relief sought by the

plaintiffs.’” Id. at 1297 (quoting Frazier, 254 F.3d at 1253). The general rule is that

“relief sought nominally against an officer is in fact against the sovereign if the decree

would operate against the latter.” Id. (quoting Pennhurst State School & Hosp. v.

Halderman, 465 U.S. 89, 101 (1984)).

In the instant case, the Law Firm’s Complaint was directed at preventing the

Muscogee (Creek) Nation tribal courts, acting through Judge Stidham, from enforcing

their respective orders for the Law Firm to return the legal fees paid to it from the

Thlopthlocco treasury until the tribal court determined which faction had the authority

to pay such fees. The Law Firms’s request for a declaratory judgment and injunctive

relief was not directed at Judge Stidham in his individual capacity, but rather at the


20

tribal courts in order to prevent the judges of those courts from exercising jurisdiction

over the Thlopthlocco’s expenditures on attorneys’ fees. (App. at 7, ¶3; id. at 25-30).

If, in fact, the relief sought was solely against Judge Stidham, the tribal court

could simply reassign the underlying case to a different judge who could then proceed

to enforce the Muscogee (Creek) Nation Supreme Court’s order. Obviously, the Law

Firm sought to prohibit any judge of the Muscogee (Creek) Nation, not merely Judge

Stidham, from enforcing the Supreme Court’s order. There can be no dispute that the

Law Firm brought this suit to prevent the entire judicial branch of the Muscogee

(Creek) Nation from ordering the Law Firm to return fees paid with Thlopthlocco tribal

funds to the tribal treasury. Accordingly, under this Court’s reasoning in Native

American Distributing, suit cannot be brought against Judge Stidham “because of” his

official capacity. 546 F.3d at 1296.

B. Judicial Immunity

As a Special Judge of the Muscogee (Creek) Nation District Court, Judge

Stidham enjoys absolute judicial immunity in addition to sovereign immunity. Mireles

v. Waco, 502 U.S. 9 (1991); Stump v. Sparkman, 435 U.S. 349 (1978). Judges are not

liable in a civil action “for their judicial acts even when such acts are in excess of their

jurisdiction and are alleged to have been done maliciously.” Coleman v. Court of


21

Appeals, 550 F. Supp. 681, 683 (W.D. Okla. 1980). Judicial immunity applies to

judges of all status. Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir. 1995).

The federal courts have recognized “the long standing federal policy supporting

the development of tribal courts” for the purpose of encouraging self-government and

self-determination. See Gaming World Int’l, Ltd. v. White Earth Band of Chippewa

Indians, 317 F.3d 840, 850 (8th Cir. 2003). Accordingly, those courts have extended

the same absolute immunity to tribal court judges that shields state and federal court

judges. Penn v. United States, 335 F.3d 786, 789 (8th Cir. 2003). Even an act in

excess of jurisdiction will not deprive a judge of immunity. Id.; see also Stump, 435

U.S. at 356. The Court in Stump explained that “the scope of the judge’s jurisdiction

must be construed broadly where the issue is the immunity of the judge.” Id. at 356-57.

As the Mireles Court explained, a judge is entitled to absolute immunity for all judicial

actions that are not “taken in a complete absence of all jurisdiction.” 502 U.S. at 11-

12.

In the instant case, Judge Stidham’s sole involvement with the Law Firm was in

his official capacity as a Special Judge of the Muscogee (Creek) Nation District Court.

The Law Firm appeared before Judge Stidham as counsel for a particular faction of the

Thlopthlocco. That faction’s authority to control the Thlopthlocco, as well as its

authority to expend tribal funds, including the payment of attorney’s fees, was clearly


22

at issue in the tribal court. Although a tribal court’s jurisdiction over nonmembers is

limited, it is broadest with respect to those nonmembers who voluntarily involve

themselves in tribal activities. Nevada v. Hicks, 533 U.S. 353, 358-59 (2001);

Montana v. United States, 450 U.S. 544, 565-66 (1981). It is without question that the

Law Firm voluntarily involved itself in the affairs of the Thlopthlocco before the

Muscogee (Creek) Nation courts and accepted tribal funds for this involvement. Such

voluntary submission to the courts of the Muscogee (Creek) Nation can clearly be

viewed as a waiver of any objection to the jurisdiction of those tribal courts over the

Law Firm’s involvement in the affairs of the Thlopthlocco. See, e.g., LaBreau v.

Dakota, 815 F. Supp. 1074, 1077 (W.D. Mich. 1993) (plaintiff sought relief in tribal

court until “it took an action of which she disapproved”; court ruled she had waived

objections to jurisdiction).

In his capacity as a judge of the District Court of the Muscogee (Creek) Nation,

Judge Stidham merely entered an order directing the Law Firm to repay its legal fees

to the tribal treasury, as directed by the Muscogee (Creek) Nation Supreme Court. The

jurisdiction that he exercised was in direct accord with the orders from the Supreme

Court. Judge Stidham took no actions in relationship to the Law Firm that were outside

his official capacity. The Law Firm does not allege that Judge Stidham has committed

any act maliciously. Even if Judge Stidham had taken actions deemed to be malicious,


23

which he clearly did not, Judge Stidham would still be immune from suit. Judge

Stidham is also entitled to judicial immunity and the Law Firm’s claims against him

must be dismissed for lack of subject matter jurisdiction.

Law Firm took the position, and the district court agreed, that judicial immunity

does not apply to actions demanding prospective injunctive relief, both citing to

Pulliam v. Allen, 466 U.S. 522 (1984). (App. at 236-237, 317-320.) While Pulliam

certainly holds as stated, Congress subsequently passed the Federal Court Improvement

Act of 1996 (“FCIA”), Pub. L. 104-317, 110 Stat. 3847,which amended 42 U.S.C.

§1983 with the specific intent of overturning Pulliam and reinstating judicial immunity

from injunctive relief to its pre-Pulliam state. This Court stated in a footnote in

Lawrence v. Kuenhold that the FCIA effectively overturns Pulliam in all cases

involving judicial officers, thus barring any claims for injunctive relief. 271 Fed. Appx.

763, 766 n.6 (10th Cir. 2008).

The district court dismissed this footnote by reasoning that Pulliam had been

overturned by the FCIA only as to claims brought pursuant to 42 U.S.C. § 1983.

Pulliam itself, however, was an appeal involving a section 1983 claim – its holding

only reached to cases involving section 1983 claims as the Supreme Court reasoned

that section 1983 is “an independent protection for federal rights” against state officials,

including judges. See 466 U.S. at 541.


24

Further, the district court’s dismissal of this Court’s statement in Lawrence was

simply incorrect. The legislative history in support of the FCIA indicates that

Congress’s intent was to reverse Pulliam in full, in order to prevent frivolous lawsuits

being filed against judges in federal court in the wake of the holding in that case. See

S. Rep. 104-366 at 36 (1996), reprinted in 1996 U.S.C.C.A.N. 4202, 4216 (noting that

the FCIA “restores the doctrine of judicial immunity to the status it occupied prior to

the Supreme Court’s decision in Pulliam” as Pulliam “broke with 400 years of

common-law tradition and weakened judicial immunity protections”). Accordingly, the

district court was incorrect in applying Pulliam to rule that Judge Stidham does not

enjoy judicial immunity because Law Firm has merely requested injunctive relief. As

there has been no allegation or proof that Judge Stidham acted in “complete absence

of all jurisdiction,” he is entitled to judicial immunity from this case. Mireles, 502 U.S.

at 11-12.

C. Ex Parte Young Doctrine

The Injunction ultimately hinges on the district court’s application of the Ex

Parte Young, 209 U.S. 123 (1908), “immunity stripping” doctrine to this case,

notwithstanding that the Law Firm never pleaded any facts or made any legal argument

based upon the Young doctrine. In any event, the district court’s reading of Young as


3 In fact, the only case cited by the district court that directly holds that tribaljurisdiction is itself a federal law capable of review under Young is the unpublisheddecision in BNSF Railway Co. v. Ray, 297 Fed. Appx. 675 (9th Cir. 2008). Ray iswrongly decided because, as the Supreme Court held in Larson, federal courts are notto intervene under the Young doctrine unless the defendant-official violated the

25

a basis for federal judicial review of tribal jurisdiction over a non-Indian in this case is

erroneous and misplaced.

Missing from the district court’s analysis is that the Young doctrine requires

either (1) that the officer sought to be enjoined acts completely outside statutory limits

on his powers, (which renders his act ultra vires), or (2) that the statute or order

conferring such powers violates the Constitution. See Vann v. Kempthorne, 534 F.3d

741,750-51 (D.C. Cir. 2008) (quoting Larson v. Domestic & Foreign Commerce

Corp., 337 U.S. 682, 689-90 (1949)). Thus, for instance, when the Supreme Court first

applied Young to a tribal officer in Santa Clara Pueblo v. Martinez, 436 U.S. 49

(1978), it examined in detail whether the officer’s underlying acts violated a federal

statute – the Indian Civil Rights Act, 25 U.S.C. §§1301-1303. See also Vann, 534 F.3d

at 750-51 (noting that Young applied to the Cherokee Nation because it was alleged to

have violated the Thirteenth Amendment and an 1866 treaty with Congress). Nearly

all of the other cases relied upon by the district court in its Order and Opinion (App.

at 323-324,) involve alleged violations of either the Constitution or a specific federal

statute or regulation.3 See BNSF v. Vaughn, 509 F.3d 1085, 1090-93 (9th Cir. 2007)


Constitution or exceeded his authority based on restrictions in a specific federal statute.

26

(Young applied because railway alleged that tribal tax violated its federally granted

right of way); Burrell v. Armijo, 456 F.3d 1159, 1174 (10th Cir 2006) (instructing that

only properly pleaded claims for civil rights violations pursuant to 42 U.S.C. §§1981,

1985 could proceed on remand); Tamini Partners, Ltd. v. Miccosukee Tribe of Indians,

63 F.3d 1030, 1046-47 (11th Cir. 1995) (subject matter jurisdiction existed because all

claims involved Indian Gaming Rights Act and its companion regulations); Northern

States Power Co. v. Prairie Island Mdewakanton Sioux Indian Cmty., 991 F.2d 458,

460 (8th Cir. 1993) (applying Young to hold tribal ordinance was pre-empted by federal

environmental statute); Burlington N. R.R. Co. v. Blackfeet Tribe, 924 F.2d 899, 901

(9th Cir. 1991) (sovereign immunity not applicable because railroad challenged tribal

tax as unconstitutional and violative of federal statute), overruled on other grounds by

Big Horn County Elec. Coop. v. Adams, 219 F.3d 944 (9th Cir. 2000).

In this case, the only allegation against Judge Stidham is that the Muscogee

(Creek) Nation courts have no jurisdiction over Law Firm, which the district court

adopted as its jurisdictional basis under Young. (App. at 7, 12; id. at 322-324.) The

Law Firm, however, has not pleaded any violation of the Constitution or a federal

statute and certainly did not prove one through the stipulated facts submitted to the


4 Similarly, if this Court agrees with the district court that an Indian tribe’sexercise of jurisdiction may be reviewed under the Young doctrine, the doctrine stilldoes not apply because Judge Stidham had jurisdiction over Law Firm for the reasonsdiscussed above, namely Law Firm’s direct involvement as counsel of record in theAnderson litigation.

27

district court. (App. at 7-14.) Accordingly, the district court’s reasoning that Young

even applies to this case was contrary to the law, and should be reversed.

II. This Court Lacks Subject Matter Jurisdiction Because the Muscogee(Creek) Nation Courts Had Jurisdiction over the Law Firm pursuant toMontana v. United States.

As noted above, Judge Stidham is entitled to both tribal sovereign immunity and

absolute judicial immunity because he has been sued as a judge of the District Court

of the Muscogee (Creek) Nation. However, even if Judge Stidham is properly sued in

his “individual capacity,” Miner Electric makes it clear that the district court only

retains jurisdiction over Judge Stidham as to actions taken completely outside the scope

of his authority. 505 F.3d at 1011-12. The district court’s conclusions of law about

the scope of Judge Stidham’s authority are reviewed by this Court de novo, while any

factual determinations are reviewed for clear error. Mustang Production Co. v.

Harrison, 94 F.3d 1382, 1384 (10th Cir. 1996).

Applying these standards or review, it is patently clear that Judge Stidham never

exceeded his authority as a Special Judge of the Muscogee (Creek) Nation District

Court. Thus, sovereign immunity applies to his actions.4


28

The Law Firm claims in its Complaint and its injunction application that Judge

Stidham exceeded his authority because jurisdiction over the Law Firm, as a non-

Indian, does not exist pursuant to the tests set forth in Montana v. United States, 450

U.S. 544 (1981). However, the facts and holding of Montana do not support Law

Firm’s claim. Contrary to Law Firm’s arguments, the Court in Montana held that

Indian tribes generally can have jurisdiction over non-members of the tribe when the

non-Indian enters on land owned by the tribe or held in trust by the United States for

its benefit. 450 U.S. at 557. Since Montana, the Supreme Court has stated that a non-

Indian’s entry on tribal land is not the only factor in determining tribal jurisdiction, but

nonetheless “may sometimes be a dispositive factor.” Nevada v. Hicks, 533 U.S. 353,

360 (2001) (emphasis added).

In this case, the Law Firm “entered” tribal land by representing the Thlopthlocco

in the Muscogee (Creek) Nation tribal courts, which are seated on tribal “trust” land

at the tribe’s government complex in Okmulgee. Certain members of the Law Firm,

including those who signed the Verified Complaint in tribal court, sought and were

granted membership in the bar of the Muscogee (Creek) Nation. The Law Firm did not

merely sit in its Tulsa offices and never enter on tribal lands.

These actions of entry into tribal land are reviewed in connection with

Montana’s holding that jurisdiction over non-Indians exists when (1) a non-Indian


29

enters into a consensual relationship with a tribe or its members through commercial

dealing, contracts, or other arrangements, or (2) the non-Indian’s conduct threatens or

directly affects the “political integrity, economic security or health and welfare of the

tribe.” 450 U.S. at 565-66. Under the holding of Montana, the Muscogee (Creek)

Nation courts have jurisdiction over the Law Firm in matters concerning the fees

incurred in representing the Thlopthlocco when those fees were paid with tribal funds

through the tribal treasury. Jurisdiction is particularly compelling when other members

of the Thlopthlocco are challenging those expenditures and the authority to make those

expenditures.

The “consensual relationship” test in Montana is particularly applicable to Law

Firm. As noted above, the Complaint alleges that Law Firm represented Thlopthlocco

in the Muscogee (Creek) Nation District Court. (App. at 8-9, ¶¶8, 12). Without

question, the Law Firm previously entered into a consensual relationship with the tribal

court by enrolling in its bar and practicing law in its courts. Further, the Law Firm’s

own papers admit that it has a contract with Thlopthlocco, and that many of the

Thlopthlocco citizens are Creek citizens, while the rest are otherwise eligible to be

Creek citizens. (App. at 9, ¶¶11-12; id. at 36-37, ¶¶12, 22). In a dispute over control

of the Thlopthlocco and tribal funds, the fees paid to the Law Firm were within Judge

Stidham’s purview. The entire Anderson litigation is about which faction of tribal


30

members has the authority to govern Thlopthlocco and, of necessity, hire its legal

counsel and pay legal fees from tribal funds.

This Court’s decision in MacArthur v. San Juan County, 309 F.3d 1216 (10th

Cir. 2002) is especially compelling on this issue. In MacArthur, an attorney, Mr. Ickes,

was enjoined by a Navajo Nation court, which this Court determined the tribal court

lacked jurisdiction to do under Montana. See 309 F.3d at 1223-24. Though Mr. Ickes

was an enrolled member of the Navajo Nation bar, he had no direct involvement in the

underlying tribal case, i.e., he was counsel to an insurance company for an Indian

health clinic sitting on state-owned land, which had been sued and enjoined in the

Navajo court. Id. at 1218, 1223.

On appeal in MacArthur, it was argued that the Navajo court had jurisdiction

over Mr. Ickes as a non-Indian solely because of his bar membership. Id. at 1223.

This Court agreed that bar membership and “practice before the Navajo district court

constitute a consensual relationship with the Navajo Nation” under the first Montana

test. Id. (emphasis added). The Court held Montana did not apply tribal jurisdiction

to Mr. Ickes, however, because there was no “nexus” between the consensual

relationship and tribal authority. Id. at 1223-24.

In this case, there is an obvious nexus between the Law Firm’s involvement in

the Anderson litigation as counsel of record and the Muscogee (Creek) Nation Supreme


31

Court’s order requiring Law Firm to disgorge its fees pending the outcome of that case.

By filing a lawsuit for its organizational client to maintain control of the Thlopthlocco,

the Law Firm directly placed the validity of its contract for legal services with the

Thlopthlocco into issue before the Muscogee (Creek) Nation courts, i.e., whether that

contract might be ultra vires. In addition, Mr. McBride and the Law Firm appeared as

counsel of record in the Muscogee (Creek) Nation courts and incurred the attorney fees

at issue in doing so. Accordingly, the first exception to Montana strongly indicates that

Judge Stidham has jurisdiction over Law Firm. See Smith v. Salish Kootenai College,

434 F.3d 1127, 1140 (9th Cir. 2006) (en banc) (holding that “a non-member who

knowingly enters tribal courts for the purpose of filing suit against a tribal member has,

by the act of filing his claims, entered into a ‘consensual relationship’ with the tribe

within the meaning of Montana.”).

The second exception to Montana – conduct within tribal boundaries that affects

“the political integrity [or] the economic security” of the Indian tribe – is also

applicable to Law Firm. In MacArthur, discussed supra, this Court noted, as to this

second exception, that a tribal court’s “interest in regulating attorney conduct is great.”

309 F.3d at 1224.

“[O]rdinarily ‘the control of attorneys’ conduct in trial litigation is within the

supervisory powers of the trial judge,’ and is thus a matter of judicial discretion.” Cole


32

v. Ruidoso Mun. Schools, 43 F.3d 1373 (10th Cir. 1994). “Further, the court’s control

over a lawyer’s professional life derives from his relation to the responsibilities of a

court.” Theard v. United States, 354 U.S. 278, 281 (1957). Accordingly, courts “may

order attorneys to return fees the client has paid pursuant to contract.” In re Austrian

& German Bank Holocaust Litigation, 317 F.3d 91, 99 (2nd Cir. 2003) (emphasis

added). See also Rosquist v. Soo Line R.R., 692 F.2d 1107, 1111 (7th Cir. 1982)

(“Courts have a stake in attorney’s fees contracts; the fairness of the terms reflects

directly on the court and its bar”). In general, courts throughout the United States have

no difficulty in establishing jurisdiction over lawyers who practice in their courts,

including the fees of those lawyers. See Trinity Industries, Inc. v. Myers & Assocs.,

41 F.3d 229 (5th Cir. 1995); see also Johnson v. Shaines & McEachern, P.A., 835 F.

Supp. 685 (D.N.H. 1993) (New Hampshire court had jurisdiction over Massachusetts

lawyers); Willis v. Semmes, Bowen & Semmes, 441 F. Supp. 1235 (E.D. Va. 1977)

(Virginia court had jurisdiction over Maryland lawyers); Waterval v. District Court,

620 P.2d 5 (Colo. 1980) (Colorado court had personal jurisdiction over Virginia

attorneys), cert. denied, 452 U.S. 960 (1981) ; In re Estate of Vernon, 609 So.2d 128

(Fla. Ct. App. 1992) (New York attorneys were subject to jurisdiction of Florida

courts); Sifers v. Horen, 177 N.W.2d 189 (Mich. App. 1970), aff'd, 188 N.W.2d 623

(Mich. 1971) (Michigan court could exercise jurisdiction over Kentucky attorneys);


33

Estate of Arlinghaus, 385 A.2d 904 (N.J. Super. App. Div. 1978) (New Jersey court

had jurisdiction over New York lawyer in suit for excessive legal fees).

Applying these authorities to the jurisdictional standards in Montana, the Law

Firm’s position in this case that the Muscogee (Creek) Nation can never regulate

attorneys appearing before its courts, unless they are Muscogee (Creek) Nation

citizens, is untenable. If this Court were to adopt such a position, then non-Indian

lawyers could commit any number of ethical violations, or charge their clients

exorbitant fees in actions before a tribal court and never suffer any consequence in

those courts. The lawyers could simply resign their tribal bar memberships and then

claim lack of jurisdiction, which is exactly what the Law Firm has attempted in this

case. Tribal courts clearly have the jurisdictional authority to protect their political

integrity by regulating the attorneys who appear as officers of those courts. Thus, the

second exception to Montana also clearly applies, and the Muscogee (Creek) Nation

courts had jurisdiction to order Law Firm to disgorge its fees to maintain the integrity

of the Anderson litigation.

III. The Law Firm Failed to Join Indispensable Parties.

As noted above, though the Law Firm has sued Judge Stidham only, it is actually

seeking relief from the January 16 order of the Muscogee (Creek) Nation Supreme


5 The district court “questions” in its opinion whether Judge Stidham abandonedthis argument by not raising it at the hearing. (App. at 325.) In reality, JudgeStidham’s counsel did not discuss this particular because the district court requestedhim to restrict argument to the immunity issues:

THE COURT: ... we really need to start with the jurisdiction question.Because if we don’t have jurisdiction, we don’t have any need to stayhere any longer. Mr. Simpson, why don’t you proceed with thejurisdictional argument.

MR. SIMPSON: Sure, Your Honor. And if you would prefer, I’ll limitthe argument to the immunity argument; is that what you’re asking for?

THE COURT: At this time, yes.

(App. at 274-275.) In any event, the argument was preserved because it was set forthin the record through Judge Stidham’s motion to dismiss brief. (App. at 115-118.)Further, this Court has determined that Rule 19 arguments are non-waivable.Enterprise Mgt. Consultants, Inc. v. United States, 883 F.2d 890, 892 (10th Cir. 1989)

34

Court, which Judge Stidham was simply trying to effectuate on remand.5 Further, as

noted above, an injunction against Judge Stidham will not prevent the Muscogee

(Creek) Nation courts from continuing to enforce their orders through other judges.

Accordingly, the district court could not possibly provide the Law Firm with complete

relief from any alleged harm through the Injunction, which was issued solely against

Judge Stidham.

“This Court reviews Rule 19 determinations under an abuse of discretion

standard,” but the legal conclusions supporting such determinations are reviewed de


35

novo. Davis v. United States, 192 F.3d 951, 957 (10th Cir. 1999). Federal Rule of

Civil Procedure 19(a)(1), requires joinder of a party if:

(A) in that person’s absence, the court cannot accord completerelief among existing parties; or

(B) that person claims an interest relating to the subject of theaction and is so situated that disposing of the action in the person’sabsence may:

(i) as a practical matter impair or impede the person’s abilityto protect the interest, or

(ii) leave an existing party subject to a substantial risk ofincurring double, multiple, or otherwise inconsistent obligationsbecause of the interest.

Bringing all interested parties before the court in one action is one of the avowed

objectives of the federal rules. Atlantic City v. American Cas. Ins. Co., 254 F. Supp.

396 (D.N.J. 1966). Thus, if such a person has not been joined, Rule 19(a)(2) provides

that “the court must order that the person be made a party.”

This Court has held that the absent party need not “possess” an interest in the

litigation for Rule 19(a) to apply, the absent party must only “claim” an interest, which

includes any claimed interest that is not “patently frivolous”. Davis, 192 F.3d at 958-

59. Clearly, an Indian tribe is a necessary parties to actions affecting its legal interests.

See, e.g., McClendon v. United States, 885 F.2d 627, 633 (9th Cir. 1989) (Indian tribe

is a necessary party to an action seeking to enforce a lease agreement signed by the


6 Furthermore, the Thlopthlocco, as well as the defendants in the Andersonlitigation, have a vital interest in seeing that the fees paid to the Law Firm from thetribal treasury are returned to the tribal treasury until such time as entitlement to thosefees is determined.

36

tribe); Enterprise Mgt. Consultants, Inc. v. United States, 883 F.2d 890, 893 (10th Cir.

1989) (Indian tribe is a necessary party to an action seeking to validate a contract with

the tribe); Wichita & Affiliated Tribes v. Hodel, 788 F.2d 765, 774 (D.C. Cir. 1986)

(Indian tribe’s beneficiary interest in a trust makes it a necessary party to an action by

a minority tribe seeking to obtain redistributions of future income). In the instant case,

the Muscogee (Creek) Nation Supreme Court, i.e., the Nation itself, is an interested

party for the obvious reason that the January 16, 2009, order – not Judge Stidham’s

February 5, 2009, order – is the original judicial act compelling Law Firm to repay its

fees. Clearly, complete relief cannot be afforded to the Law Firm without the joinder

of the entire Muscogee Creek Nation judicial branch because any other judge of the

tribal courts could continue enforcement of the Muscogee (Creek) Nation’s January 16,

2009, order where Judge Stidham left off.6

Once it is determined that the Supreme Court was a necessary party under Rule

19(a), a court “must determine whether, in equity and good conscience, the action

should proceed among the existing parties or should be dismissed” under Rule 19(b).

Typically, where an indispensable tribal party cannot be joined because of sovereign


37

immunity, the action must be dismissed. Confederated Tribes of Chehalis Indian

Reservation v. Lujan, 928 F.2d 1496 (9th Cir. 1991). This Court has recognized a

“strong policy” under Rule 19(b) favoring dismissal when a tribe is indispensable and

cannot be joined because of immunity. Davis, 192 F.3d at 960. The factors to consider

are:

(1) the extent to which a judgment rendered in the person’s absencemight prejudice that person or the existing parties;

(2) the extent to which any prejudice could be lessened or avoidedby:

(A) protective provisions in the judgment;(B) shaping the relief;(C) other measures;

(3) whether a judgment rendered in the person’s absence would beadequate; and

(4) whether the plaintiff would have an adequate remedy if theaction were dismissed for nonjoinder.

Fed. R. Civ. Proc. 19(b).

Without question, the Supreme Court justices who originally ordered Law Firm

to repay its legal fees to Thlopthlocco are also indispensable parties and dismissal

should be ordered pursuant to Rule 19(b). Addressing the four factors, first, the entire

judicial branch of the Muscogee (Creek) Nation is adversely affected by the Injunction

because it prevents the tribal courts from preserving the status quo in the Anderson

litigation while the courts adjudicate the dispute between the Thlopthlocco factions.

Second, there is no conceivable alternative remedy in the district court that could


38

“lessen” or “avoid” this prejudice. Third, for the reasons noted above, the Injunction

is already inadequate because any other tribal district judge could be assigned to

continue Judge Stidham’s previous efforts to enforce the fee-related orders. Finally,

as discussed in Part IV infra, Law Firm now admits that it has an adequate remedy

because Law Firm is able to sue Thlopthlocco should Thlopthlocco not repay the fees

at issue.

The district court failed to address any of this necessary analysis. Using

unsupported and circular logic, the court simply opined that joinder is unnecessary

because Law Firm’s “Complaint seeks to prevent [Judge Stidham] from exercising

allegedly unlawful jurisdiction over [Law Firm] through enforcement of the February

5 Order or other efforts aimed at collecting [Law Firm]’s fees.” This opinion makes

no reference – not even that the district court disagrees – to the vested interest of the

Muscogee (Creek) Nation Supreme Court in overseeing Law Firm’s contract with

Thlopthlocco or, for that matter, the Supreme Court’s involvement as the original court

that ordered the repayment of Law Firm’s fees. Further, the district court makes

absolutely no feasability analysis as required by Rule 19(b), which, in and of itself, is

grounds for reversal. See Davis, 192 F.3d at 961.

IV. The Law Firm Is Not Entitled to Injunctive Relief.


39

A district court’s grant of a preliminary injunction is reviewed under an abuse

of discretion standard, meaning when the district court “commits an error of law or

makes clearly erroneous factual findings.” Wyandotte Nation v. Sebelius, 443 F.3d

1247, 1252 (10th Cir. 2006). The district court’s legal declarations in ruling on the

injunction request are reviewed by this Court de novo. Greater Yellowstone Coalition

v. Flowers, 321 F.3d 1250, 1255 (10th Cir. 2003).

An injunction “is a drastic remedy to be exercised with caution, and should be

granted only in cases where the necessity therefor is clearly established.” Goldammer

v. Fay, 326 F.2d 268, 270 (10th Cir. 1964); accord Aid for Women v. Foulston, 441

F.3d 1101, 1115 (10th Cir. 2006). In determining whether to grant a preliminary

injunction, courts consider the following four criteria: (1) irreparable harm to the party

seeking relief unless the injunction issues; (2) the applicant’s “substantial” likelihood

of success on the merits; (3) the threatened injury to the application outweighs any

harm to the opposing party and (4) the injunction would not be contrary to public

interests. Wyandotte Nation, 443 F.3d at 1254-55 (10th Cir. 2006). In this case, the

Law Firm failed to submit evidence to meet any of these criteria and the district court,

accordingly, was clearly erroneous in holding that it had.

First, and most obvious, if this Court determines that immunity applies or there

is no subject matter jurisdiction over Judge Stidham, there is no need to consider the


40

district court’s basis for issuing the Injunction because the district court was also

incorrect in ruling there was any likelihood of success on the merits at all.

As to the balancing of harm to the parties, this Court has stated that a plaintiff

must satisfy the irreparable harm requirement

by demonstrating “a significant risk that he or she will experience harmthat cannot be compensated after the fact by monetary damages.” GreaterYellowstone Coal. v. Flowers, 321 F.3d 1250, 1258 (10th Cir. 2003)(quoting Adams v. Freedom Forge Corp., 204 F.3d 475, 484-85 (3d Cir.2000)) (emphasis omitted). Purely speculative harm will not suffice, butrather, “[a] plaintiff who can show a significant risk of irreparable harmhas demonstrated that the harm is not speculative” and will be held tohave satisfied his burden. Id.

RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1210 (10th Cir. 2009). “Mere injuries,

however substantial, in terms of money, time and energy necessarily expended in the

absence of a stay are not enough. The possibility that adequate compensatory or other

corrective relief will be available at a later date, in the ordinary course of litigation,

weighs heavily against a claim of irreparable harm.” Virginia Petroleum Jobbers Ass’n

v. Federal Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958). Accordingly, the

alleged irreparable harm must be “certain and great” and generally cannot consist of

economic loss. Port Cities Props. v. Union Pacific R.R. Co., 518 F.3d 1186, 1190

(10th Cir. 1008).


41

Based on these authorities, the Law Firm simply did not present any evidence

of “irreparable harm” to the district court. The Law Firm has merely been ordered to

return the fees paid from the tribal treasury to that treasury until the end of the

Anderson litigation. The Law Firm has never alleged that it is incapable of returning

the fees at issue. Further, if, as the Law Firm contends, its client is the lawful

governing entity, then Law Firm will be repaid from those same tribal funds. If, as the

Anderson defendants contend, the Thlopthlocco did not have authority to contract with

Law Firm, then the Law Firm is not entitled to be paid from tribal funds. “[I]reparable

harm exists only where there is a threatened imminent loss that will be very difficult to

quantify at trial.” Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 38

(2nd Cir. 1995) (emphasis added). Law Firm never proved any such imminent loss in

the district court.

In fact, Law Firm’s claim of “irreparable harm” was completely eviscerated at

the hearing when it admitted – through direct questioning from the district court – that

its contract with Thlopthlocco waives Thlopthlocco’s sovereign immunity, leaving the

fees that Judge Stidham ordered to be repaid by Law Firm subject to recapture. (App.

at 300-301.) Remarkably, in a clearly erroneous application of the facts, the district

court ruled:


42

As argued by Crowe, if it is forced to return its fees to the [Thlopthlocco]Tribe, Crowe is without recourse to recoup said fees, as it cannot sue theTribe due to the Tribe’s sovereign immunity. While Crowe did representthat its contract with the Tribe involves a limited waiver of the Tribe’ssovereign immunity, the Court is without knowledge as to the extent ofsuch waiver and whether the waiver would be applicable in a fee-seekingsuit. Moreover, in the event the Anderson defendants prevail, the Courtfinds it highly unlikely that they would honor the Tribe’s contract withCrowe.

(App. at 329-330.)

Of note, it was Law Firm’s burden in applying for the Injunction – not Judge

Stidham’s burden – to explain what impact the sovereign immunity waiver had on

collecting fees from Thlopthlocco, yet the district court’s ruling effectively weighed this

factor against Judge Stidham based on lack of such proof. In addition, the obvious

inferred fact from Mr. McBride’s admission at the hearing is that the immunity waiver

in Law Firm’s contract specifically allows Law Firm to sue Thlopthlocco (or demand

arbitration) to collect unpaid fees. There could be no other possible waiver in the

contract as Thlopthlocco’s only conceivable contractual obligation was to pay Law

Firm for its services. In any event, the district court is clearly erroneous in calling the

waiver “limited” because Law Firm never represented any such fact of a “limited”

waiver at the hearing.

As to harm to Judge Stidham, the district court was also clearly erroneous in

ruling that Judge Stidham’s “cited ‘harm’ is really not harm to Defendant at all, as he


43

has no personal interest in the funds and a delay in the exercise of Defendant’s

authority over Crowe will not cause any injury to Defendant.” (App. at 331.) The

articulated harm to Judge Stidham, however, had nothing to do with the fees

themselves; the articulated harm was the invasion of the Injunction into the authority

of the Muscogee (Creek) Nation tribal courts to regulate attorneys practicing before

them. This Court has “repeatedly stated that such an invasion of tribal sovereignty can

constitute irreparable injury” to a tribe. Wyandotte Nation, 443 F.3d at 1255.

As the Supreme Court of the Muscogee (Creek) Nation remarked in its order

reversing Judge Stidham:

It is premature to determine the issue of attorneys’ fees in this case untilthe lawful governing body of Thlopthlocco is determined. Until then, itis unknown whether anyone among the litigants has the authority to voteto expend Thlopthlocco funds. In the interest of fairness, it is thereforeORDERED that no party is entitled to attorneys’ fees during thependency of these proceedings.

(App. at 223.) Clearly, the Muscogee (Creek) Nation Supreme Court was concerned

about tribal funds that might be unlawfully spent on attorneys’ fees. Further, the Model

Rules of Professional Conduct adopted by the Muscogee (Creek) Nation courts require

the Law Firm to segregate all funds in which another person may claim an interest.

Model Rule of Prof. Conduct 1.15 (e). Without question, the Anderson defendants

believe that the funds paid to the Law Firm are tribal funds which were wrongfully paid


44

and should be returned to the treasury. Accordingly, Judge Stidham possessed a

number of sovereign immunity interests that the Injunction harmed, which the district

court completely ignored.

Finally, the public policy concerns arising out of the issuance of injunctive relief

also weighs heavily against the Injunction here. In this case, the public policy concerns

are reflected in the long-standing recognition by federal courts that, “in the absence of

congressional abrogation of tribal sovereign immunity from suit,” or “an express waiver

of its sovereign immunity” by the Muscogee (Creek) Nation, an injunction is not a

proper remedy against its courts. Miner Electric, 505 F.3d at 1013. There is nothing

about this case which shows that any public interest would be served by the Injunction.

Indeed, the granting of the Injunction thwarts the very purposes of the tribal courts and

“impair[s] the authority of tribal courts,” which the Supreme Court cautioned against

in Iowa Mutual Insurance, 480 U.S. at 15. Putting all four of these factors together,

particularly the lack of any realistic “irreparable harm” to Law Firm, the district court

abused its discretion in issuing the Injunction.

CONCLUSION

Judge Stidham clearly had jurisdiction over Law Firm as attorneys practicing

before the Muscogee (Creek) Nation courts in litigation that involved Law Firm’s fees.

In addition, Law Firm cannot obtain complete relief from the Muscogee (Creek)


45

Supreme Court’s January 16, 2009 order by suing Judge Stidham. For either of these

reasons, the Court should reverse the decision of the district court and remand with

instructions to dismiss this case.

Respectfully Submitted,

/s/Michael A. Simpson Marthanda J. Beckworth, OBA #10204Michael A. Simpson, OBA #21083ATKINSON, HASKINS, NELLIS, BRITTINGHAM, GLADD & CARWILE, P.C.1500 Park Centre525 South MainTulsa, Oklahoma 74103-4524Telephone: (918) 582-8877Facsimile: (918) 585-8096

Counsel for Appellant, Gregory R. Stidham

Certificate of Compliance

I hereby certify that (1) this brief complies with the type-volume limitation of

Fed. R. App. Proc. 32(a)(7)(B) because this brief contains 10,489 words, excluding the

parts of the brief exempted by Fed. R. App. Proc. 32(a)(7)(B)(iii), and (2) this brief

complies with the typeface requirements of Fed. R. App. Proc. 32(a)(5) and the type

style requirements of Fed. R. App. Proc. 32(a)(6) because this brief has been prepared

in a proportionally spaced typeface using Word Perfect 11 in Times New Roman 14-

point font.


46

/s/Michael A. Simpson Michael A. Simpson, OBA #21083Attorney for Appellant

Certificate of Service

This is to certify that on this, the 29th day of July 2009, a true, correct, and exactcopy of the above and foregoing instrument was hand-delivered to:

James L. KincaidSusan HuntsmanCrowe & Dunlevy, P.C.321 S. Boston, Suite 500Tulsa, OK 74103

/s/Michael A. Simpson Michael A. Simpson, OBA #21083Attorney for Appellant

G:\Files\376\434\Brief Amd-mas.wpd


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