United States Court of Appeals, Tenth Circuit.

THLOPTHLOCCO?TRIBAL?TOWN, a federally-recognized?Indian?Tribe, Plaintiff?Appellant,

v.

Gregory R. STIDHAM, Judge of the District Court of the Muscogee (Creek) Nation; Richard Lerblance, Chief Justice of the Muscogee (Creek) Nation Supreme Court; Andrew Adams, III, Vice?Chief Justice of the Muscogee (Creek) Nation; Gregory Bigler, Judge of the District Court of the Muscogee (Creek) Nation, Defendants?Appellees.

No. 13?5006.

Sept. 3, 2014.

Appeal from the United States District Court for the Northern District of Oklahoma, (D.C. No. 4:09?CV?00527?JHP?FHM).Michael Salem, Salem Law Offices, Norman, OK, for Appellant.

W. William Rice, G. William Rice, P.C., Cushing, OK, for Appellees.

Before TYMKOVICH, HOLMES, and BACHARACH, Circuit Judges.

TYMKOVICH, Circuit Judge.

*1?The Thlopthlocco?Tribal?Town is a federally recognized?Indian?tribe?in Oklahoma. An election dispute arose about which individuals were properly elected or appointed to govern the Thlopthlocco people. Seeking to resolve that dispute, the?Tribal?Town filed suit in the?tribal?court of the Muscogee (Creek) Nation and, accordingly, voluntarily submitted to that court's jurisdiction.

The?Tribal?Town subsequently concluded it did not want to maintain its suit in?tribal?court and dismissed its claims. But the defendant in that suit had, by that time, filed cross-claims. Arguing that the?Tribal?Town's sovereign immunity waiver did not cover proceedings on the cross-claims, the?Tribal?Town attempted to escape Muscogee court jurisdiction, but, in various decisions, several judges and justices of the Muscogee courts held that they may exercise jurisdiction over the?Tribal?Town without its consent.

The?Tribal?Town then filed a federal action in the Northern District of Oklahoma against those Muscogee judicial officers, seeking to enjoin the Muscogee courts' exercise of jurisdiction. The district court dismissed the case, finding that the federal courts lacked subject matter jurisdiction, the defendants were entitled to sovereign immunity, the?Tribal?Town had failed to join indispensable parties, and the?Tribal?Town had failed to exhaust its remedies in?tribal?court. We conclude, however, that the?Tribal?Town has presented a federal question and that the other claims do not require dismissal. But we agree the?Tribal?Town should exhaust its remedies in?tribal?court while its federal court action is abated.

Exercising jurisdiction under 28 U.S.C. ? 1331, we AFFIRM in part and REVERSE in part the decision of the district court and remand for further proceedings.

I. Background

Before turning to the legal issues, a brief consideration of the?Tribal?Town's origins and history is helpful.

A.?Tribal?History

The Thlopthlocco?Tribal?Town is a town of Creek?Indians?who originate from Mexico but, in the 1500s, migrated to what is now Georgia and Alabama, where they resided until forcibly relocated in the 1820s and 1830s. For a more detailed account of the relocation, see Grant Foreman, The Emigration of the Five Civilized?Tribes?of?Indians?(1932).?See also?Angie Debo, The Road to Disappearance: A History of the Creek?Indians?(1979).

The Creeks have historically governed themselves through a confederacy of geographic units called?tribal?towns. “The Creek Nation, historically and traditionally, is actually a confederacy of autonomous?tribal?towns, or Talwa, each with its own political organization and leadership.”Harjo v. Andrus,?581 F.2d 949, 952 at n. 7 (D.C.Cir.1978). The members of a talwa generally lived together, but membership was determined by ancestry rather than geography; a child became a member of his or her mother's talwa.

The term “talwa” “was generally translated into the English word ‘town,’ but rather covers the conception contained in the word ‘?tribe.’ “ Frederic Kirgis, Memorandum to the Commissioner of?Indian?Affairs 1 (July 15, 1937). As one analysis puts it, “[t]he Creeks had a peculiar form of government in that the confederation seemed to have no central control. The population of a town, regardless of the number of clans represented, made up a?tribe?ruled by an elected chief or ‘miko,’ who was advised by the council of the town on all important matters.” Ohland Morton, Early History of the Creek?Indians, 9 Chronicles of Okla. 17, 20 (March 1931). Thus, “[t]he Creek town ... represented an autonomy such as is usually implied by the term ‘?tribe.’ “?Id.?at 21;?see also?Harjo,?581 F.2d at 952 n. 7 (D.C.Cir.1978) (discussing the historic role of autonomous talwa). Though autonomous, the many talwa were closely affiliated throughout most of the Creeks' history, giving rise to references to the “Creek Confederacy” or the “Muscogee Nation,” named for the talwa's shared language.

*2?Shortly after the Creeks' arrival in Oklahoma in the 1820s and 1830s, the Creek talwa came together to take several unified actions. First, they jointly entered into several treaties with the United States; during these treaty discussions, the United States interacted with chiefs or commissioners, who represented the Creeks at large rather than individual talwa. And, in 1860, the Creeks came together to adopt a single constitution.

This apparent unification was driven, at least in part, by the United States government:

[T]he Federal authorities found it advisable to insist upon centralization of the Creeks to avoid dealing with each Talwa. The?Indians?opposed this centralization and it was not until after the [American] Civil War, in which the towns took opposing positions, that the Federal Government achieved the formation of a single government among the Creek?Indians. And, even then, the union was opposed by the full-blood element.

Kirgis at 2.

In 1867, the Creeks revised their constitution and created a centralized government that, to some extent, mirrored the United States' federal structure. For instance, the constitution provided that each of the then 44 talwa were entitled to one representative in each house of the National Council, the centralized government's legislative branch. But, largely because the centralized government had little power, the talwa continued to govern themselves, behaving more like states than municipalities. Despite several efforts to challenge it, the 1867 constitution remained the Creeks' governing document until, in conjunction with the Curtis Act's and the Dawes Allotment Act's attempt to assimilate the?tribes, the United States abolished the?tribal?governments and incorporated the Creek citizens and territory into the new state of Oklahoma in 1907.

After 1907, the talwa were essentially governed by their respective counties and the state of Oklahoma until Congress enacted the Oklahoma?Indian?Welfare Act (OIWA) in 1936. The OIWA invited any “recognized?tribe?or band of?Indians?residing in Oklahoma” to adopt a constitution and bylaws and accordingly be acknowledged by a federal charter of incorporation. 25 U.S.C. ? 503. Although 16 talwa were still active at that time, only the Thlopthlocco?Tribal?Town and two other Creek talwa, the Kailegee?Tribal?Town and the Alabama?Quassarte?Tribal?Town, sought and received federal charters in the years immediately after OIWA's enactment.?See?Hobia,?2012 WL 2995044 at *7.

The Thlopthlocco?Tribal?Town created its constitution and received its federal charter of incorporation in 1939, rendering it a federally recognized?tribe. During the recognition process, the government investigated the relationship of the?Tribal?Town to the larger network of CreekIndians, explaining, “these towns retain sufficient characteristics of a band to identify them as?Indian?bands.”?FN1?Kirgis at 2. Further, “[t]hat the?Indians?themselves recognized the existence of the Creek?tribal?towns is clear from an examination of the constitutions and laws of the Muscogee Nation.... The towns are recognized as having an existence not derived from the constitution of the Muscogee Nation but in fact antedating and continuing alongside the constitution.”?Id.?at 4.

*3?It was not until 1979 that the Muscogee Nation became a “tribe?or band” of Creek?Indians?recognized under OIWA. In conjunction with its application for a federal charter, the Muscogee Nation adopted its current constitution. Although the Muscogee constitution does not mention the Thlopthlocco, it provides that it “shall not in any way abolish the rights and privileges of persons of the Muscogee Nation to organize?tribal?towns.” App. 1197.

Today, the governing structures of the Thlopthlocco?Tribal?Town and the Muscogee Nation overlap in some respects. The?Tribal?Town invites the descendant of any Thlopthlocco?Indian?to join, and the Muscogee Nation invites the descendants of any Creek?Indian?to join; thus, all of theTribal?Town's members seem to be eligible for Muscogee Nation membership. In practice, most but not all of the?Tribal?Town's memberships are also members of the Muscogee Nation. Further, while the?Tribal?Town has its own constitution and governing structure, it does not have its own courts. Although the?Tribal?Town's federal recognition empowers it to create its own judiciary, H.R.Rep. No. 103?781, at 3, it has struggled to find the necessary federal funding. The Bureau of?Indian?Affairs gives federal funding earmarked for judicial services for the Thlopthlocco people to the Muscogee courts.

The Thlopthlocco Constitution vests the power to govern the?Tribal?Town in a ten-member Business Committee, which is composed of five elected town officers?the Town King, two Warriors, a Secretary, and a Treasurer?and five advisors appointed by the elected officials. The?TribalTown holds elections every four years, but, if an elected position is vacated between elections, the remaining elected officials are empowered to fill the vacancy. Business Committee members may also be removed from office by a majority vote of?Tribal?Town members.

From this historical background, several points are worth noting. First, the?Tribal?Town and the Muscogee Nation are both federally recognized?Indian?tribes. Second, the governing structures of both overlap and intersect, reflecting the historical confederate nature of the Creeks. Finally, the?Tribal?Town is without a judiciary, but the BIA's funding stream implies that the?Tribal?Town members use, or at least can use, the Muscogee courts.

We turn next to the procedural background of this appeal before addressing the legal issues.

B. Procedural Background

This dispute arises from a battle over the composition of the Business Committee. According to the complaint, Nathan Anderson, the Thlopthlocco's elected Town King, attempted to overthrow the Business Committee in 2007 and declare himself the only legitimately elected?Tribal?Town official. The?Tribal?Town filed an action in Muscogee?tribal?court against Anderson for declaratory and injunctive relief (Thlopthlocco?Tribal?Town v. Anderson?(Anderson I?)). As a part of its filing in the Muscogee court, the?Tribal?Town issued a narrow waiver of sovereign immunity to allow the case to proceed.FN2?The Muscogee district court held that it lacked jurisdiction to hear the?Tribal?Town's claim and urged the Town to “resolve its own problems.” App. 62. But the Muscogee Supreme Court reversed, finding that, although the?Tribal?Town is a separately recognized?Indian tribe?under federal law, it is a Muscogee Nation town under?tribal?law and therefore subject to jurisdiction in Muscogee courts.

*4?The?Anderson I?defendants then filed cross-claims against the remaining nine members of the Business Committee, most of whom are also members of Muscogee Nation. These cross-claims alleged the Business Committee members had violated the Thlopthlocco Constitution by, among other things, attempting to strip Anderson of his authority as Town King. According to the?Tribal?Town, the parties then “internally resolved the issue [the?Tribal?Town had presented in?Anderson I?] by Anderson's removal from office under the Thlopthlocco Constitution.” Aplt. Br. at 7.

But Anderson continued to pursue his cross-claims. As a result, the?Tribal?Town withdrew its waiver of sovereign immunity and moved to dismiss the suit. The Muscogee district court denied that motion, finding that, even in the absence of the?Tribal?Town's consent, the Muscogee courts had jurisdiction to hear the suit for the same reasons the Muscogee Supreme Court articulated in the earlier appeal. The?Tribal?Town filed an interlocutory appeal. Citing its previous finding that, under?tribal?law, the?Tribal?Town was part of the Muscogee Nation, the Muscogee Supreme Court denied the appeal.

In January 2011, the Thlopthlocco people were scheduled to elect a new Business Committee. Shortly before the election, Anderson filed a new action in Muscogee district court, alleging that individual Business Committee members and members of the Thlopthlocco Election Committee illegally removed him and other candidates from the ballot (Anderson v. Burden?(Anderson II?)). The Muscogee district court denied the Committee members' motion to dismiss for lack of jurisdiction and suspended the election. Subsequently, the Muscogee district court ordered that the?TribalTown hold an election and include Anderson and the other?Anderson II?plaintiffs on the ballot.

With these developments, the?Tribal?Town filed suit in the Northern District of Oklahoma. It requested that the federal court enjoin the Muscogee judicial officers from asserting jurisdiction over the?Tribal?Town's election procedures. The district court denied the request and instead granted the Muscogee judicial officers' motion to dismiss the suit because: the federal court lacked subject matter jurisdiction; the Muscogee judicial officers were entitled to sovereign immunity; the?Tribal?Town had failed to join indispensable parties; and the?Tribal?Town had not exhausted itstribal?court remedies.

II. Analysis

The?Tribal?Town argues that the district court wrongly dismissed the suit because the extent of a?tribal?court's jurisdiction over nonmembers presents a federal question. The?Tribal?Town further contends the district court improvidently found that the Muscogee judicial officers are entitled to sovereign immunity, that the?Tribal?Town failed to join necessary parties to its federal suit, and that the?Tribal?Town should be required to exhaust its?tribal?court remedies before proceeding. The?Tribal?Town also asks that, if we reverse the district court's dismissal of this suit, we consider whether the?Tribal?Town is entitled to a preliminary injunction.

*5?We review each issue in turn.

A. Subject Matter Jurisdiction

[1][2] The district court held that it lacked subject matter jurisdiction. It based this conclusion on its finding that the?Tribal?Town was not independent of the Muscogee Nation and therefore the election-related claims amounted to an intratribal dispute. A “federal court has no jurisdiction over an intratribal dispute.”?Kaw Nation ex rel. McCauley v. Lujan,?378 F.3d 1139, 1143 (10th Cir.2004).

But both the?Tribal?Town and Muscogee judicial officers recognize that, at least for the purposes of our jurisdictional inquiry, the?Tribal?Town and Muscogee Nation are separate?tribes.FN3?We agree, and both history and case law confirm this understanding.

First, in 1937, when the United States Department of the Interior issued a charter formalizing the?Tribal?Town's status as a recognized?tribe, the Department expressly resolved that the Thlopthlocco's relationship with the Muscogee did not impede the?Tribal?Town's recognition as a discrete entity. The?Tribal?Town's federal charter is strong evidence of its independence from the Muscogee Nation and of its quasi-sovereign status.?See?Cohen's Handbook of Federal?Indian?Law 134 (2012) (discussing the legal significance of federal recognition of an?Indian?tribe). Under federal law, the?Tribal?Town is therefore a freestanding?tribe.

Second, our cases recognize the legal separation of the?Tribal?Town and the Muscogee Nation. “While the Creek Nation has jurisdiction to regulate its own citizens, the Thlopthlocco is an independent?tribal?entity that elects its own government pursuant to its own Constitution and is not itself a citizen of the Creek Nation.”?Crowe & Dunlevy P.C. v. Stidham,?640 F.3d 1140, 1152 (10th Cir.2011);?see also?State ex rel. Oklahoma Tax Comm'n v. Thlopthlocco?Tribal?Town of Oklahoma,?839 P.2d 180, 183 (Okla.1992) (recognizing that the?Tribal?Town, as a?tribe?or band incorporated under OIWA, is entitled to sovereign immunity).

[3] Having concluded the?Tribal?Town and the Muscogee Nation are separate?tribes, we turn to whether a?tribal?court's exercise of jurisdiction over another?tribe?presents a federal question. The Supreme Court has repeatedly held that whether a?tribal?court has exceeded its jurisdictional authority is a question of federal common law. As the Court explained in?National Farmers Union Insurance Companies v. Crow?Tribe?of?Indians,?“whether an?Indian?tribe?retains the power to compel a non-Indian?... to submit to the civil jurisdiction of a?tribal?court is one that must be answered by reference to federal law and is a ‘federal question’ under ? 1331.” 471 U.S. 845, 852, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985).

[4] Thus, while?National Farmers?refers to “non-Indians,” the logic of the opinion applies to non-members of a?tribe, including other independent?Indian?tribes. “The inherent sovereign powers of an?Indian?tribe?do not extend to the activities of nonmembers of the?tribe”?with two exceptions: the activities of nonmembers who enter into consensual relationships with the?tribe?and the activities of nonmembers that take place on?Indian?land.?See?Montana v. United States,?450 U.S. 544, 565, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981).?FN4?Consequently, the question of whether a?tribal?court has jurisdiction over a nonmember is decided under federal common law as set out in?Montana. See, e.g.,?Attorney's Process & Investigation Servs., Inc. v. Sac & Fox?Tribe?of Miss. in Iowa,?609 F.3d 927, 935 (8th Cir.2010);?Philip Morris USA, Inc. v. King Mountain Tobacco Co.,569 F.3d 932, 938 (9th Cir.2009);?MacArthur v. San Juan Cnty.,?309 F.3d 1216, 1222 (10th Cir.2002);?see also?Nevada v. Hicks,?533 U.S. 353, 360, 367, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) (holding that?tribal?courts are not courts of general jurisdiction because their inherent adjudicative jurisdiction over nonmembers is limited by federal law and noting that the Court has “never upheld under?Montana?the extension of?tribal?civil authority over nonmembers on non-Indian?land”). As a result, we have not limited our federal question jurisdiction to jurisdictional disputes betweentribes?and non-Indians; we have more generally held that “[t]he scope of a?tribal?court's jurisdiction is a federal question over which federal district courts have jurisdiction.”?Kerr?McGee Corp. v. Farley,?115 F.3d 1498, 1501 (10th Cir.1997) (citing?National Farmers,?471 U.S. at 853).

*6?[5] What is more, the most basic principle of federal question jurisdiction is that the federal courts have the authority to consider the nature and effect of rights created by federal law.?See?Gully v. First Nat'l Bank,?299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70 (1936). In this context, we see no reason to distinguish between rights created by federal law and inherent rights recognized by federal law. The federal government has recognized the?Tribal?Town as a sovereign?tribe?and, accordingly, the government has recognized the rights that accompany the?Tribal?Town's sovereignty. The?Tribal?Town now alleges that the Muscogee courts are attempting to trample on those federally recognized rights. The?Tribal?Town properly looks to the federal court to consider its claim under federal question jurisdiction.

In short, the?Tribal?Town has sufficiently pleaded that it is a separate and independent?Indian?tribe?beyond the reach of Muscogee court jurisdiction. That allegation presents an Article III federal question. The district court therefore erred in prematurely dismissing the?Tribal?Town's claims for lack of subject matter jurisdiction.

Since we conclude the district court had jurisdiction, we go on to consider its other grounds for dismissal.

B. Sovereign Immunity

[6] The district court also determined the Muscogee judicial officers were entitled to sovereign immunity. We disagree, concluding that our decision in?Crowe & Dunlevy, P.C. v. Stidham,?640 F.3d 1140 (10th Cir.2011), answers the question.

Crowe?was an outgrowth of an earlier aspect of this election controversy. Shortly after Anderson filed his cross-claims in?Anderson I,?he also filed a motion arguing he should have access to the?Tribal?Town's treasury to pay his attorneys. He argued that the heart of the dispute before thetribal?court was whether he or the Business Committee was properly authorized to govern the?Tribal?Town and that, until that question had been answered, the Business Committee should not be allowed to pay its legal bills from the town coffers unless he was able to do so as well. The Muscogee Supreme Court eventually prevented both Anderson and the?Tribal?Town from paying their litigation costs from the?Tribal?Town's treasury. The?Tribal?Town requested rehearing, arguing that the Muscogee Supreme Court had exceeded the limited waiver of sovereign immunity, but the Muscogee Supreme Court denied the request. Judge Stidham, a defendant in this case, accordingly issued an order effectuating the Muscogee Supreme Court's decision and ordering Crowe & Dunlevy, the?Tribal?Town's counsel, to return to the?Tribal?Town's treasury all fees paid from the treasury to date.

Crowe & Dunlevy filed suit in the Northern District of Oklahoma to enjoin Judge Stidham's order. Judge Stidham filed a motion to dismiss the suit, arguing he was entitled to sovereign immunity as a member of the Muscogee judiciary, which the district court denied. On appeal, we identified that the relief sought against Judge Stidham involved only prospective relief and “the alleged unlawful exercise of?tribal?court jurisdiction in violation of federal common law is an ongoing violation of federal law sufficient to sustain the application of the?Ex parte Young?doctrine.”Crowe,?640 F.3d at 1156 (internal quotation marks omitted) (applying the holding of?Ex parte Young,?209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), that, under certain circumstances, an action against a state official should not be treated as an action against the state and, as a result, is not subject to the doctrine of sovereign immunity). Therefore, we held that a plaintiff seeking injunctive relief from the Muscogee courts' allegedly unlawful exercise of jurisdiction over a nonmember is entitled to sue the judge in federal court.

*7?The same logic applies here. The?Tribal?Town, a nonmember of the Muscogee Nation, has sued Muscogee judges seeking prospective relief from the Muscogee courts' allegedly unlawful exercise of jurisdiction. The Muscogee judicial officers are in the same position Judge Stidham was in?Crowe,?and, accordingly, they are not entitled to sovereign immunity.

C. Necessary Parties

[7] The district court also based its dismissal on the?Tribal?Town's failure to join necessary or indispensable parties under Federal Rule of Civil Procedure 19.

Under Federal Rule of Civil Procedure 19(a), the court must order joinder of a party if (1) in that person's absence, the court cannot accord complete relief among existing parties; or (2) failure to join would jeopardize a person's ability to protect himself or expose him to inconsistent adjudications. If joinder is infeasible for some reason, “the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed.” Fed.R.Civ.P. 19(b).

The district court concluded that the Muscogee Nation was an indispensable party “because a ruling by this Court as to the [Muscogee Nation]'s jurisdiction could potentially affect future efforts of other branches of the [Muscogee Nation] to exercise jurisdiction over Thlopthlocco, or other Creek?tribal?towns.”?Thlopthlocco?Tribal?Town v. Stidham,?2013 WL 65234 * 11 (N.D.Okla. Jan.3, 2013). And because the Muscogee Nation was entitled to sovereign immunity, the district court determined it could not be joined and thus the action must be dismissed.

But the district court's reasoning conflicts with the purpose of the?Ex parte Young?doctrine. As we have already explained, the?Tribal?Town seeks prospective relief in the form of an order directing Muscogee judges to decline to exercise jurisdiction over the?Tribal?Town. Under?Crowe,?the plaintiffs are entitled to that relief if they show the circumstances warrant an injunction preventing future violations of federal law.

A similar situation presented itself in a case involving the Cherokee Nation in the District of Columbia Circuit. In that case,?Vann v. U.S. Dep't of Interior,?701 F.3d 927 (D.C.Cir.2012), the court held that Rule 19 poses no obstacle when a plaintiff has sued a?tribal?officer instead of thetribe?itself because a claim against the?tribe's?officer in his official capacity was “one and the same in an?Ex parte Young?suit for declaratory and injunctive relief.”?Id.?at 929. In that posture, “the Principal Chief can adequately represent the Cherokee Nation in this suit, meaning that the Cherokee Nation itself is not a required party for purposes of Rule 19.”?Id.?at 929?30. Otherwise, “official-action suits against government officials would have to be routinely dismissed, at least absent some statutory exception to Rule 19, because the government entity in question would be a required party yet would be immune from suit and so could not be joined. But that is not how the?Ex parte Young?doctrine and Rule 19 case law has developed.”?Id.?at 930.

*8?For the same reasons, the action here against the Muscogee judicial officers can go forward without involving the Muscogee Nation as a party to the suit.

[8] The district court also determined that some of the other parties in the?Anderson I?and?Anderson II?litigation are necessary parties because “Thlopthlocco is actually seeking relief in this case which would terminate?Anderson I?and?II,?depriving the [parties] of their ‘day’ in court.”Thlopthlocco,?2013 WL 65234 at * 11. But failure to join a necessary party is not grounds for dismissing the case. Before taking that step, the court must determine whether joining the necessary parties is feasible, and, only if it is not, whether Rule 19(b) requires the court to dismiss the suit in their absence.?See?Symes v. Harris,?472 F.3d 754, 760?61 (10th Cir.2006) ( “Fed.R.Civ.P. 19(b) forbids dismissal if the necessary party could be made a party.”). The district court did not consider the feasibility of joining the?Anderson I?defendants and the?Anderson II?plaintiffs and should do so on remand.

D.?Tribal?Court Exhaustion

The district court dismissed the?Tribal?Town's complaint because it had not yet exhausted its claims in?tribal?court. In particular, the district court determined the Muscogee court had not reached a final decision about whether it could properly exercise jurisdiction over the?Tribal?Town after the?Tribal?Town had withdrawn its waiver of sovereign immunity.

The?Tribal?Town argues that the district court erred and we should resolve the jurisdictional issue at this time because either (1) the issue has been fully litigated in?tribal?court or (2) the?Tribal?Town should be excepted from the exhaustion rule.

We agree with the district court, however, that the?Tribal?Town has yet to exhaust its?tribal?court remedies. Further, we find that the exhaustion rule applies, and the federal courts may benefit from the?tribal?court's analysis and final resolution of the?Tribal?Town's jurisdictional arguments. We therefore affirm the district court's application of the?tribal?exhaustion rule and decline to address, at this stage of the litigation, the question of whether the Muscogee court may exercise jurisdiction despite the?Tribal?Town's withdrawal of its immunity waiver. But instead of dismissing the complaint, we instruct the district court, as explained below, to abate its proceedings until the?Tribal?Town has exhausted its claims in?tribal?court.

1.?Tribal?Exhaustion Rule

[9] The?tribal?exhaustion rule requires that “absent exceptional circumstances, federal courts typically should abstain from hearing cases that challenge?tribal?court jurisdiction until?tribal?court remedies, including?tribal?appellate review, are exhausted.”?Crowe,?640 F.3d at 1149. The rule is based on strong policy interests recognizing?tribal?sovereignty, including “(1) furthering congressional policy of supporting?tribal?self-government; (2) promoting the orderly administration of justice by allowing a full record to be developed in the?tribal?court; and (3) obtaining the benefit oftribal?expertise if further review becomes necessary.”?Kerr?McGee,?115 F.3d at 1507.

*9?Because “the existence and extent of a?tribal?court's jurisdiction will require a careful examination of?tribal?sovereignty [and] the extent to which that sovereignty has been altered, divested, or diminished ... that examination should be conducted in the first instance in the?Tribal?Court itself.”?National Farmers,?471 U.S. at 855?56. That way, federal courts will have the benefit of a full factual record on the relevant issues and the benefit of?tribal?court expertise.?Id.?at 856?57.

[10] Until the?tribal?court's appellate review of the question presented in federal court is complete, the complaining party has not exhausted its?tribal?court remedies.?See?Iowa Mut. Ins. Co. v. LaPlante,?480 U.S. 9, 16, 107 S.Ct. 971, 94 L.Ed.2d 10 (“[R]espect for?tribal?legal institutions requires that they be given a full opportunity to consider the issues before them and to rectify any errors. The federal policy of promoting?tribal?self-government encompasses the development of the entire?tribal?court system, including appellate courts.” (internal quotation marks omitted)).

[11] The?Tribal?Town first argues that it has already exhausted its claims in?tribal?court. We disagree. The Muscogee Supreme Court has yet to reach a final decision on its jurisdiction over the?Tribal?Town in either?Anderson I?or?Anderson II.?To recap, the?Tribal?Town initially submitted to the jurisdiction of the Muscogee courts in 2007 when, in?Anderson I,?it alleged that Anderson had attempted a coup d'etat. The Muscogee Supreme Court held it had jurisdiction in?Anderson I,?reasoning that members of the?Tribal?Town were Creek?Indians. It based its reasoning on the fact that, before the?Tribal?Town submitted its constitution for federal government recognition in 1939, the?Tribal?Town “was a?tribal?town of the Muscogee (Creek) Nation and as such its members were citizens of the Creek Nation.” App. 63. Thus, according to the Muscogee court, the Thlopthlocco Constitution expressly preserved members' status as Creek?Indians, and, as a result, the?Tribal?Town's status as a “Muscogee (Creek)?tribal?town” remained intact.?Id.

But, at the time the Muscogee Supreme Court issued that decision, the?Tribal?Town's consent to the Muscogee courts' jurisdiction was still in effect. In fact, the court's opinion concludes, “[t]he members of Thlopthlocco?Tribal?Town, as citizens of the Muscogee Nation, have requested relief in the courts of the Muscogee (Creek) Nation. Neither the Town nor its members will be abandoned by the Nation's courts.”?Id.?at 64. Thus, we do not consider the 2007 opinion to be the Muscogee Supreme Court's final answer to the question of sovereign immunity.

The?Tribal?Town later withdrew its claims in?tribal?court, along with its waiver of sovereign immunity, and asserted that the Muscogee courts could no longer exercise jurisdiction. Thereafter, the Muscogee district court held that it may exercise jurisdiction over the?Tribal?Town even without its consent. The?Tribal?Town requested an interlocutory appeal to challenge that decision, which the Muscogee Supreme Court denied. Although the opinion suggested the court denied the appeal because it stood by its earlier decision that the?Tribal?Town was a part of the Muscogee Nation, a denial of an interlocutory appeal does not finally resolve the legal and jurisdictional issues in the case. The?Tribal?Town is still entitled to seek appellate review in the Muscogee Supreme Court after the Muscogee district court completes its fact finding and reaches a decision on the merits. When the Muscogee Supreme Court decides the appeal at that time, the?tribal?court will have reached a final decision resolving its jurisdiction over the?Tribal?Town.

*10?The?Tribal?Town alternatively argues that, even though we have determined it has not yet exhausted its?tribal?court remedies, this case should be excepted from the?tribal?exhaustion rule. The Supreme Court recognizes several exceptions to the rule: (1) where “an assertion of?tribaljurisdiction is motivated by a desire to harass or is conducted in bad faith”; (2) “where the action is patently violative of express jurisdictional prohibitions”; and (3) “where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court's jurisdiction.”?National Farmers,?471 U.S. at 857. In addition, (4) where it is clear that the?tribal?court lacks jurisdiction and that judicial proceedings would serve “no purpose other than delay,” a federal court may excuse exhaustion.?Nevada v. Hicks,?533 U.S. 369.FN5

[12] To invoke these exceptions, we have required that the party make a substantial showing of eligibility.?See?Kerr?McGee,?115 F.3d at 1502 (“A substantial showing must be made by the party seeking to invoke [the exception for express jurisdictional prohibitions] to the?tribal?exhaustion rule.”). And the exceptions are applied narrowly where “tribal?courts are not given the first opportunity to determine their jurisdiction [that] typically involve situations where the federal court has exclusive jurisdiction.”?Id.

We think exhaustion is the better route in this case. No argument has been made that Muscogee court jurisdiction is motivated by harassment or bad faith. Nor can we say that the legal questions surrounding the Thlopthlocco Constitution and its relationship to the Muscogee Nation are so patently obvious as to defy exhaustion, especially given the opportunity to later challenge wrongly invoked subject matter jurisdiction.

The?Tribal?Town's argument that exhaustion would be futile is not without some logic. The futility exception crafted in?National Farmers?applies where the federal court plaintiff will not have an adequate opportunity to challenge the?tribal?court's jurisdiction.?See, e.g.,?Texaco, Inc. v. Zah,5 F.3d 1374, 1377 (10th Cir.1993). As we have explained, the?Tribal?Town will have the opportunity to make its arguments before the Muscogee Supreme Court after the Muscogee district court has decided the merits of the case. But other circuits have held that the futility exception also bars application of the?tribal?exhaustion rule to?tribes?whose constitution does not create a judiciary?the Town's situation here.?See?Comstock Oil & Gas Inc. v. Alabama & Coushatta?Indian?Tribes?of Texas,?261 F.3d 567, 572 (5th Cir.2001) (“Because no?tribal?court properly existed, exhaustion was imprudent in the present dispute.”);?Krempel v. Prairie Island?Indian?Cmty.,?125 F.3d 621, 622 (8th Cir.1997) (same). Although the Thlopthlocco Constitution does not provide for the creation of a judiciary, the Muscogee judicial officers' argument that the?Tribal?Town is merely a sub-part of the Muscogee Nation implies that the Muscogee Constitution, which empowers the Muscogee judiciary, applies to the?Tribal?Town. Thus, we cannot assess futility without delving into the central question here: the Thlopthlocco's independence in federal court from the Muscogee Nation's jurisdiction. On that subject, we conclude, as we describe below, that the federal courts will benefit from the legal analysis of the Muscogee Supreme Court.

*11?As to the final exception for cases where exhaustion would serve no purpose other than delay, the?Tribal?Town argues that our decision in?Crowe?demonstrates we should not require exhaustion. In that case, we found that the?tribal?court's lack of jurisdiction over the non-Indian?law firm was so clear that exhaustion would serve no purpose. But the arguments in?Crowe?are quite different than in this case. There, the Muscogee judge argued the Muscogee courts had jurisdiction over the?Tribal?Town's lawyers and their fee arrangement with the?Tribal?Town by virtue of the lawyers' membership in the Muscogee Nation's bar. We held that there was not “a sufficient nexus between Crowe's practice before the Muscogee (Creek) Nation courts and Judge Stidham's order requiring Crowe to return attorneys' fees already paid to it pursuant to its contract with the Thlopthlocco.”?Crowe,?640 F.3d at 1151. We did not determine the ultimate jurisdictional issues at stake here.FN6

We have already concluded that, for the purposes of creating federal question jurisdiction, federal law distinguishes between the?tribes, but it does not necessarily follow that the Muscogee courts cannot make a colorable claim that they have jurisdiction in the?Anderson?litigation.?SeeMarceau v. Blackfeet Hous. Auth.,?540 F.3d 916, 920 (9th Cir.2008) (“Principles of comity require federal courts to dismiss or to abstain from deciding claims over which?tribal?court jurisdiction is ‘colorable.’ ”). We have not made any inquiry into whether, under?tribal?law, the?tribes?are distinct or into what effect that determination has on the?tribal?court's jurisdiction. Nor have we determined whether?tribal?law or federal law should define when a?tribal?court's involvement in a cause of action is an exercise of self-government.FN7?And we have not considered whether there may be another reason, aside from the?Tribal?Town's alleged affiliation with the Muscogee Nation, that this case might implicate some significant Muscogee?tribal?interest. Thus, we cannot definitively say at this stage that the?Tribal?Town has made a “substantial showing” that, simply because it is not a member of the Muscogee Nation under federal law, this case is excepted from the?tribal?exhaustion rule.

Other reasons strengthen our prudential view that exhaustion is appropriate. The Supreme Court has emphasized that the?tribal?exhaustion rule is grounded in the federal policy supporting?tribal?self-government.?See?Iowa Mutual Insurance Company v. LaPlate,?480 U.S. 9, 15?16, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987);?see also?41 Am.Jur.2d?Indians;?Native?Americans?? 145 (“[A] concern for?tribal?sovereignty forms the epicenter of the?tribal?exhaustion doctrine.”). In addition, the Court has recommended exhaustion where the federal court may benefit from the?tribalcourt's legal analysis.?See?Kerr?McGee,?115 F.3d at 1507 (citing?National Farmers,?471 U.S. 856?57). In this case, the nature of the?Tribal?Town's affiliation with the Muscogee Nation is at the heart of this dispute, and, as a result, we cannot so easily determine whether the Muscogee Nation's interest in self-government entitles it to some level of involvement in the?Tribal?Town's affairs. We may benefit from the Muscogee Supreme Court's?tribal?law analysis of the?Tribal?Town's and Muscogee Nation's relationship, which the court has yet to fully articulate.

*12?In addition, we may benefit from the court's analysis of the effect of the?Tribal?Town's withdrawal of its waiver of sovereign immunity. The Muscogee judicial officers have argued that the Muscogee rules of procedure prevent a sovereign from withdrawing a waiver when the sovereign initiated the suit and, in this way,?tribal?law varies significantly from federal law.?See, e.g.,?Beers v. Arkansas,?61 U.S. 527, 529, 20 How. 527, 15 L.Ed. 991 (1857) (providing that, under federal law, a sovereign “may withdraw its consent whenever it may suppose that justice to the public requires it.”).

In sum, we agree with the district court that the?Tribal?Town must exhaust its?tribal?court litigation before the federal courts can reach the merits of its claims for relief.

2. Abatement

[13][14] Although we require exhaustion, abatement of this action is preferable to dismissal pending exhaustion of?tribal?court remedies. While the?tribal?exhaustion rule is generally “an inflexible bar to consideration of the merits of the petition by the federal court,”?Texaco,?5 F.3d at 1378, it does not preclude abating consideration of the merits until the?tribal?court has ruled.?See?186 A.L.R. Fed. 27, *2a (“A court has the discretion to either dismiss or stay proceedings in such matters pending?tribal?court exhaustion.”);?see also?Crowe,?640 F.3d at 1149 (“Comity considerations inherent in federal-tribal?litigation compel us to assess whether we must abate this federal action in order to permit [the plaintiff] to exhaust its jurisdictional claims in the [?tribal] courts.”);?Superior Oil Co. v. United States,?798 F.2d 1324, 1329 (10th Cir.1986) (“[In?National Farmers?], [t]he Court left the question whether, during the time period required for exhaustion of?Tribal?Court remedies, the federal action should be dismissed or merely held in abeyance for determination of the federal District Court.”);?Gaming World Int'l, Ltd. v. White Earth Band of Chippewa?Indians,?317 F.3d 840, 849 (8th Cir.2003) (holding that the?tribal?exhaustion rule “is prudential, rather than jurisdictional”).

Abatement will protect the?Tribal?Town's position in this litigation. The?Tribal?Town argues that if the?tribal?courts rule in favor of Anderson, he may gain control of the?Tribal?Town's governing body, the Business Committee, and thereby of the?Tribal?Town's role in this litigation. In that event, the?Tribal?Town argues he could prevent it from filing a cause of action in federal court. Abatement will enable the district court to exercise its jurisdiction on the merits after exhaustion in?tribal?court regardless of the outcome there.?FN8

For the same reasons, the district court should consider joining additional interested parties on remand. The district court has already determined that the?Anderson I?defendants and the?Anderson II?plaintiffs are necessary parties under Federal Rule of Civil Procedure 19. Other persons may be as well. For example, the?Anderson I?cross-claim defendants, who are members of the Thlopthlocco Business Committee, may have an interest in federal court review of the Muscogee courts' exercise of jurisdiction. Their authority to represent the?Tribal?Town is the central question before the?tribal?court, and, as a result, they have an interest in the lawfulness of the?tribal?court's jurisdiction over their case. For the same reasons, the remaining?Anderson II?defendants of record, who are members of the Thlopthlocco Election Committee, may also have a stake in the federal court litigation. The district court should consider whether they are necessary parties under Rule 19.?See?U.S. Cellular Inv. Co. v. Sw. Bell Mobile Sys., Inc.,?124 F.3d 180, 182 (10th Cir.1997) (“The matter of a party's absence can be raised at any time and should be raised by a court?sua sponte?”);?see also?John Bourdeau et al., 25 Fed. Proc., L.Ed. ? 59:99 (2014) (“Federal courts have an independent duty to protect absent necessary parties from any threat of serious injustice, and thus, the courts can?sua sponte?invoke the rule governing joinder of necessary parties.”).

*13?Thus, regardless of the outcome of the suits in?tribal?court, the?Tribal?Town will have the opportunity to seek meaningful relief in federal court.

E. Preliminary Injunction

The?Tribal?Town has also appealed the district court's failure to consider its motion to preliminarily enjoin the Muscogee judicial officers' exercise of jurisdiction. Because the district court dismissed this case on jurisdictional grounds, it did not address the merits of the request for a preliminary injunction.

Since we are remanding for exhaustion in?tribal?court, the?Tribal?Town's request is premature. After exhaustion, the?Tribal?Town can ask the district court to consider injunctive relief based on the status of the case at that time.

III. Conclusion

Because the?Tribal?Town raises an issue of federal common law, we have subject matter jurisdiction under 28 U.S.C. ? 1331. We find the Muscogee judicial officers are not entitled to sovereign immunity, that the district court should consider the feasability of joining certain necessary parties, and that exhaustion in?tribal?court is necessary. Accordingly, we REVERSE the district court's dismissal and REMAND for additional proceedings to join necessary parties. After those proceedings are complete, we direct the district court to abate further proceedings until the plaintiffs exhaust?tribal?court remedies.

FN1.?See?Montoya v. United States,?180 U.S. 261, 266, 36 Ct.Cl. 577, 21 S.Ct. 358, 45 L.Ed. 521 (1901) (“By a ‘?tribe’ we understand a body of?Indians?of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory; by a ‘band,’ a company of?Indians?not necessarily, though often, of the same race or?tribe, but united under the same leadership in a common design.”);?see also?Tully v. United States,?32 Ct.Cl. 1, 7 (1896) (“The policy of the United States in dealing with the?Indians?has been, as we understand, to accept the subdivisions of the?Indians?into such?tribes?or bands as the?Indians?themselves adopted, and to treat with them accordingly.”).

FN2. The?Tribal?Town has waived sovereign immunity in other suits.?See?Tomah,?8 Okla. Trib. 451 (holding, in the first suit where the?Tribal?Town sought Muscogee court jurisdiction, that the Muscogee courts had jurisdiction over the?Tribal?Town because, when the?Tribal?Town applied for federal recognition, it had characterized itself as a town of Creek?Indians);?see also?Thlopthlocco?Tribal?Town v. Tomah,?8 Okla. Trib. 576 (Mus.(Cr.) D. Ct.2004) (“It is beyond the Court's jurisdiction to hear [counterclaims against the?Tribal?Town] unless the?Tribal?Town specifically and expressly waives sovereign immunity for such claims to be heard in the courts of the Muscogee (Creek) Nation.”).

FN3. At oral argument, counsel for the Muscogee judicial officers confirmed this position. Oral argument recording at 18:16?19:40 (categorizing the?Tribal?Town as a “separate?tribe” and this suit as an?intertribal?dispute).

FN4. Although?Montana?addressed a?tribe's?regulatory authority rather than its adjudicative authority,?Montana?is applicable here because the Supreme Court has held, “[a]s to nonmembers, we hold, a?tribe's?adjudicative jurisdiction does not exceed its legislative jurisdiction. Absent congressional direction enlarging?tribal-court jurisdiction, we adhere to that understanding.”?Strate v. A?1 Contractors,?520 U.S. 438, 453, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997).

FN5. In?El Paso Natural Gas Co. v. Neztsosie,?the Court may have created yet another exception to the?tribal?exhaustion rule for the “rare” cases in which “Congress has expressed an unmistakable preference for a federal forum.” 526 U.S. 473, 484, 119 S.Ct. 1430, 143 L.Ed.2d 635 (1999);?see also?Conference of the Western Attorneys General, American?Indian?Law Deskbook 238?39 (4th ed.) (2008). The parties in the pending case have not argued that Congress has expressed such a preference in any applicable law, and, as a result, we do not address this exception here.

FN6. It is true that, in?Crowe,?we wrote, “[w]hile the Creek Nation has jurisdiction to regulate its own citizens, the Thlopthlocco is an independent?tribal?entity that elects its own government pursuant to its own Constitution and is not itself a citizen of the Creek Nation.” 640 F.3d at 1152. Although that excerpt helps to inform the question of whether the?Tribal?Town is a member of the Muscogee Nation under federal law, it does not decide the question of whether to require the?Tribal?Town to exhaust before the?tribal?courts, especially because, in?Crowe,?Judge Stidham did not argue that, under?tribal?law, the?Tribal?Town is a sub-part of the Muscogee Nation.

FN7. Nor have we considered whether the?tribe's?powers of self-government include “the inherent power of?Indian?tribes?... to exercise [ ] jurisdiction over?all?Indians” in civil suits as it does in criminal suits.?See?25 U.S.C. ? 1301(1)(2) (emphasis added);?see also?Duro v. Reina,?495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990),?superseded by statute,?25 U.S.C. ? 1301.

FN8. The?Tribal?Town has also alleged that, if we do not act now, the?tribal?court may force the?Tribal?Town to hold an election and include Anderson and the other?Anderson II?plaintiffs on the ballot. But the record reveals that the Muscogee Supreme Court has stayed its consideration of?Anderson II?until it decides?Anderson I.?Thus, we expect the?tribal?court to reach a final decision on the jurisdictional issue before it considers ordering an election. Accordingly, the?Tribal?Town will have the opportunity to exhaust its?tribal?court remedies and return to federal court before the?tribal?court has taken an action that the?Tribal?Town might not be able to challenge effectively.?