Submitted: February 16, 1994

Filed: July 1, 1994

___________

Before McMILLIAN, WOLLMAN, and MAGILL, Circuit Judges.

___________

MAGILL, Circuit Judge.

On appeal are four consolidated cases each relating to a

dispute involving the rights to buy, sell, and regulate electric

services on the Fort Totten Devils Lake Sioux Indian Reservation

(Reservation). These appeals raise issues involving tribal

sovereign immunity, the propriety of the district court's rescission

of a temporary restraining order, and res judicata. We reverse and

remand with instructions.

I. BACKGROUND

A. The Parties

The parties to the dispute are: the Devils Lake Sioux Indian

Tribe (the Tribe) and members of the Devils Lake Sioux Tribe Tribal

Utilities Commission (Tribal Utilities Commission); Otter Tail Power

Company (Otter Tail); the North Dakota Public Service Commission

(NDPSC) and its members; and two rural electric cooperative

associations (collectively the RECs) -- namely, Baker Electric

Cooperative, Inc. (Baker Electric), and Sheyenne Valley Cooperative,

Inc. (Sheyenne Valley).

The Tribe consists of members of the Devils Lake Sioux Band

who occupy the Reservation. The Reservation, which was established

pursuant to the Treaty with the Sioux -- Sisseton and Wahpeton Bands,

15 Stat. 505 (1867), reprinted in C. Kappler, II Indian Affairs:

Laws and Treaties 956 (2d ed. 1904) (1867 Treaty), comprises over

240,000 acres of land in northeast North Dakota. Land on the

reservation is owned in four ways: (1) by the United States

Government in trust for the Tribe (tribal trust land), (2) by the

Tribe, (3) in fee by members of the Tribe, and (4) in fee by

nonmembers of the Tribe. The Tribal Council, whose members are

elected by the Tribe, governs Tribal affairs on the Reservation.

The members of the Tribal Utilities Commission enforce the Tribal

Utilities Code. The Tribe seeks to assert exclusive regulatory

jurisdiction over electric services to its facilities on tribal

trust land and throughout the Reservation in general.

Otter Tail is an investor-owned electric utility that operates

in North Dakota. Otter Tail, or its predecessor in interest, has

provided electricity to the Reservation for over sixty years. Otter

Tail owns both transmission and distribution facilities on the

Reservation. Otter Tail does not dispute that its operations

outside of the Reservation in North Dakota are subject to regulation

by NDPSC. See N.D. Cent. Code  49-02-01 (Supp. 1993). Otter Tail

presently provides electricity to Dakota Tribal Industries (DTI), a

corporation chartered and owned by the Tribe and located on tribal

trust land. Otter Tail seeks to provide electric services to the

Reservation subject to the exclusive regulatory authority of the

Tribe.

NDPSC is a state regulatory commission consisting of three

constitutionally elected members, N.D. Const. art. V,  12, who are

authorized under Title 49 of the North Dakota Century Code to

regulate investor-owned electric utilities such as Otter Tail.

NDPSC seeks to subject Otter Tail to its regulatory jurisdiction on

the Reservation and to prevent the Tribe from limiting its

regulatory authority on the Reservation.

Baker Electric and Sheyenne Valley are rural electric

cooperative associations that provide electric services to various

portions of North Dakota. See N.D. Cent. Code  10-13-01 to -05

(1985 & Supp. 1993). Baker Electric and Sheyenne Valley serve both

tribal and non-tribal members on the Reservation. The RECs seek to

supply electric services to additional locations on the Reservation

and to prevent the Tribe from subjecting them to the Tribe's

regulatory authority on the Reservation.

B. The Litigation

These appeals involve the interplay and possible overlap

between the sovereign jurisdictions of the Tribe -- acting through the

members of the Tribal Utilities Commission -- and the State of North

Dakota -- acting through the members of NDPSC -- with respect to

regulation of electric services on the Reservation. Both the Tribe

and NDPSC seek to exercise exclusive regulatory authority over

electric services on the Reservation. Otter Tail supports the Tribe

and recognizes the Tribe as the exclusive regulatory authority on

the Reservation. The RECs seek to prevent the Tribe from exercising

regulatory authority on the Reservation. We turn to the specific

facts underlying these appeals.

In September 1988, the Tribal Council selected Otter Tail to

provide electricity for DTI. Otter Tail filed notice with NDPSC

that it intended to extend electric services to DTI. NDPSC notified

Otter Tail that it alone had jurisdiction and that Otter Tail should

formally apply to NDPSC for a certificate of public convenience and

necessity.

Baker Electric, which also sought to provide electricity to

DTI, discovered that Otter Tail had begun to provide electric

services to DTI before NDPSC had issued Otter Tail a certificate of

public convenience and necessity. In November 1988, Baker Electric

filed a protest with NDPSC and requested that NDPSC hold Otter Tail

in contempt. In April 1989, NDPSC issued Otter Tail a show cause

order and scheduled a hearing for later in that month. In response,

Otter Tail petitioned the state district court for a writ of

prohibition against any proposed action by NDPSC. The state

district court granted the writ of prohibition. The North Dakota

Supreme Court lifted the writ of prohibition and assumed supervisory

jurisdiction over whether NDPSC had jurisdiction over electric

services to DTI. See In re Application of Otter Tail Power Co., 451

N.W.2d 95, 97 (N.D. 1990). In May 1989, after the North Dakota

Supreme Court lifted the writ of prohibition, NDPSC determined that

it had jurisdiction to regulate electric service to DTI.

The North Dakota Supreme Court then analyzed NDPSC's

jurisdictional determination and, in January 1990, held that Otter

Tail lacked standing to raise the rights of the Tribe. Id. at 98.

After deciding jurisdictionally that Otter Tail lacked third-party

standing to raise the Tribe's rights, the North Dakota Supreme Court

nevertheless proceeded to decide on the merits that the Tribe had no

sovereign right to regulate electricity use on the Reservation. Id.

at 98-107. Justice Levine concurred in the majority's result based

on Otter Tail's lack of standing to raise the rights of the Tribe,

id. at 107-08, and noted that the majority had "ranged far and wide

in answering broad questions about the authority of the Tribe" that

were not before the court, id. at 108.

Thereafter, in July 1990, the Tribal Council enacted the Tribal

Utilities Code, which asserts extensive regulatory authority over

electric services within the historic exterior boundaries of the

Reservation. In response to the Tribal Council's enactment of the

Tribal Utilities Code, Baker Electric and Sheyenne Valley brought

suit against the members of the Tribal Utilities Commission. Nos.

93-1696, 93-1699 Baker Electric Coop. v. Joseph Chaske (Suits 1 & 2,

Nos. 93-1696, 93-1699, Baker Electric v. Chaske). The RECs argue

that the Tribe lacks regulatory

jurisdiction over electric utilities doing business within the

exterior boundaries of the Reservation. The RECs sought prospective

injunctive relief against the individual members of the Tribal

Utilities Commission to prevent them from exercising the authority

invested in them by the Tribal Utilities Code. The district court

dismissed the RECs' suits because the sovereign Tribe had not

consented to the suits, and therefore the district court lacked

jurisdiction.

In August 1990, NDPSC ordered Otter Tail to discontinue service

to DTI. The Tribe filed suit against NDPSC and its individual

members alleging that the Tribe had the right to purchase

electricity from the supplier of its choice. No. 93-1995 Devils

Lake Sioux Indian Tribe v. North Dakota Pub. Serv. Comm'n (Suit 3,

No. 93-1995, Tribe v. NDPSC). The Tribe requested and, on September

4, 1990, was granted injunctive relief that prevented NDPSC from

interfering with its choice of suppliers. See Tribe's App. No.

93-1995, at 23-24 (Sept. 4, 1990 order). The district court later

rescinded the September 4, 1990 temporary restraining order (TRO)

that prohibited NDPSC from interfering with the Tribe's regulation

of electric services on the Reservation.

Meanwhile, Otter Tail also brought suit against the members of

NDPSC with respect to Otter Tail's intention to provide electric

services to the Tribe's new Headstart facility which, like DTI, is a

tribal facility located on tribal trust land. No. 93-1701 Otter

Tail Power Co. v. Bruce Hagen (Suit 4, No. 93-1701, Otter Tail v.

Hagen). Otter Tail sought to prevent NDPSC from interfering with

its relationship with the Tribe based on the Supremacy Clause of the

Constitution. Specifically, Otter Tail alleged that the Tribe's

sovereign rights prohibit NDPSC from interfering with the Tribe's

choice of electricity suppliers. The district court dismissed Otter

Tail's suit because it was barred by res judicata.

II. DISCUSSION

Although arising from the same factual core, the consolidated

appeals resulting from the district court's February 3, 1993 order

raise three separate issues.[1] In Suits 1 & 2, Nos. 93-1696,

93-1699, Baker Electric v. Chaske, the RECs appeal the dismissal of

their cases based on the Tribe's sovereign immunity. In Suit 3, No.

93-1995, Tribe v. NDPSC, the Tribe seeks review of the district

court's rescission of the TRO that had enjoined NDPSC from

interfering with the Tribe's relations with Otter Tail. Finally, in

Suit 4, No. 93-1701, Otter Tail v. Hagen, Otter Tail appeals the

district court's dismissal of its case based on res judicata. We

examine these cases in turn.

A. Suits 1 & 2, Nos. 93-1696, 93-1699, Baker Electric v. Chaske

The RECs appeal the district court's dismissal of their suits

against the members of the Tribal Utilities Commission.[2] The RECs

argue that the tribal officers are not protected by the Tribe's

sovereign immunity when they act pursuant to an unconstitutional

tribal statute. The Tribe argues that an officer suit is not

appropriate because the Tribe had authority to promulgate its Tribal

Utilities Code and because the tribal officers have not

acted.[3] Because the district court's analysis in support of its

dismissal is inconsistent with our precedent, we reverse and remand

to the district court.

Whether a suit is barred by a Tribe's sovereign immunity is an

issue of law that we determine de novo. See Burlington N. R.R. v.

Blackfeet Tribe, 924 F.2d 899, 901 (9th Cir. 1991). "Indian tribes

and their governing bodies possess common-law immunity from suit.

They may not be sued absent express and unequivocal waiver of

immunity by the tribe or abrogation of tribal immunity by Congress."

Id.; accord Tenneco Oil Co. v. Sac & Fox Tribe of Indians, 725 F.2d

572, 574 (10th Cir. 1984). The Tribe's sovereign immunity, however,

is subject to the well-established exception described in Ex parte

Young, 209 U.S. 123, 159-60 (1908). See Oklahoma Tax Comm'n v.

Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 514 (1991);

Northern States Power Co. v. Prairie Island Mdewakanton Sioux Indian

Community, 991 F.2d 458, 460 (8th Cir. 1993). In Ex parte Young,

the Supreme Court held that "a suit challenging the

constitutionality of a state official's action is not one against

the State." Pennhurst State Sch. & Hosp., 465 U.S. at 102

(analyzing Ex parte Young); see also Nix v. Norman, 879 F.2d 429,

432 (8th Cir. 1989). Thus, when a complaint alleges that

"the named officer defendants have acted outside the amount of

authority that the sovereign is capable of bestowing, an

exception to the doctrine of sovereign immunity is invoked. . .

. If the sovereign did not have the power to make a law, then

the official by necessity acted outside the scope of his

authority in enforcing it, making him liable to suit."

Northern States Power, 991 F.2d at 460 (quoting Tenneco Oil, 725

F.2d at 574 (citations omitted)). Therefore, "[i]f the tribe did

not have the power to enact this ordinance, then the tribal officers

were not clothed with the tribe's sovereign immunity." Id.

Applying Northern States Power, the dispositive issue before

this court is whether the Tribe had the authority to enact the

Tribal Utilities Code: If yes, the tribal officers are clothed with

the Tribe's sovereign immunity; if no, then the sovereign immunity

defense must fail. See id. We decline, however, to decide in the

first instance whether the Tribe had this authority. See Tenneco,

725 F.2d at 576 (remanding case back to district court to give Tribe

an opportunity to prove that it had authority to enact an

ordinance). Further, we reject the Tribe's contention that officer

suits are inappropriate where the officers have not acted. Tribe's

Br. Nos. 93-1696, 93-1699, at 3-5. The RECs seek to enjoin the

members of the Tribal Utilities Commission from enforcing the Tribal

Utilities Code, and therefore their suits are squarely of the type

recognized and approved of by this court in Northern States Power.

See 991 F.2d at 460 (approving of suit that sought to enjoin tribal

officers from enforcing tribal ordinance); see also South Dakota v.

Bourland, 949 F.2d 984, 989 (8th Cir. 1991) (upholding propriety of

suit seeking injunctive relief against tribal officers), rev'd on

other grounds, 113 S. Ct. 2309 (1993).

Therefore, we reverse the dismissal of the RECs' suits, and we

remand to the district court to evaluate the Tribe's sovereign

immunity under the analysis set out in Northern States Power.

B. Suit 3, No. 93-1995, Tribe v. NDPSC

The Tribe appeals the district court's rescission of the TRO

that enjoined NDPSC from interfering with the Tribe's relations

with Otter Tail. Although labeled a temporary restraining order,

the district court's TRO was in effect for thirty months. In

addition, proper notice and a hearing preceded the district court's

clarification of the TRO in July 1992. The parties do not dispute

that although labeled a TRO, the district court's order constituted

a preliminary injunction.[4] Therefore, this court has

jurisdiction, pursuant to 28 U.S.C.  1292(a)(1) (1988), to review

the district court's rescission of the preliminary injunction. See

Nordin v. Nutri\System, Inc., 897 F.2d 339, 343 (8th Cir. 1990)

(temporary restraining order that exceeded ten days and had no

expiration date "must be treated as a preliminary injunction and

therefore is appealable"); see also Wright & Miller, Federal

Practice and Procedure: Civil  2962, at 619-20 & nn.1-2 (1982).

The burden of establishing the propriety of a preliminary

injunction is on the movant. Modern Computer Sys., Inc. v. Modern

Banking Sys., Inc., 871 F.2d 734, 737 (8th Cir. 1989) (en banc).

Whether a preliminary injunction should issue "involves

consideration of (1) the threat of irreparable harm to the movant;

(2) the state of balance between this harm and the injury that

granting the injunction will inflict on other parties litigant; (3)

the probability that movant will succeed on the merits; and (4) the

public interest." Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d

109, 114 (8th Cir. 1981) (en banc). "No single factor in itself is

dispositive; in each case all of the factors must be considered to

determine whether on balance they weigh towards granting the

injunction." Calvin Klein Cosmetics Corp. v. Lenox Lab., 815 F.2d

500, 503 (8th Cir. 1987); Dataphase, 640 F.2d at 114. However, a

party moving for a preliminary injunction is required to show the

threat of irreparable harm. Modern Computer Sys., 871 F.2d at 738;

Dataphase, 640 F.2d at 114.

We review a district court's decision to grant or rescind a

preliminary injunction for an abuse of discretion. Id. at 114 n.8.

An abuse of discretion occurs when a relevant factor that

should have been given significant weight is not considered,

when an irrelevant or improper factor is considered and given

significant weight, or when all proper and no improper factors

are considered, but the court in weighing those factors commits

a clear error of judgment.

United States v. Kramer, 827 F.2d 1174, 1179 (8th Cir. 1987). Our

review is made substantially more difficult because there is no

indication in its opinion that the district court applied the

Dataphase factors when it granted the preliminary injunction or when

it later rescinded the preliminary injunction. Thus, we must

analyze the four Dataphase factors without the benefit of the

district court's insight.

1. Irreparable Harm

The Tribe argues that without the preliminary injunction, it

suffers a threat of irreparable harm because NDPSC will interfere

with the Tribe's right to self government and will disrupt electric

services to DTI, a vital tribal enterprise. We reject the first

argument, but we accept the second.

The threat of irreparable harm to the Tribe's right to self

government assumes that NDPSC has no authority to regulate Otter

Tail on the Reservation. This issue remains before the district

court, and we decline to resolve it in the first instance. The

Tribe, however, has demonstrated a threat of irreparable harm in

that rescission of the preliminary injunction threatens to disrupt

electric services to the DTI facility. Presently, Otter Tail

provides power to DTI. If the preliminary injunction is not

reinstated, NDPSC could disrupt electric services to DTI by forcing

Otter Tail to cease providing power to that tribal facility. This

threatened disruption of electric services could hinder the

productivity of DTI and result in economic harm to the Tribe.

Further, the Tribe would be unable to recover any damages resulting

from this disruption as NDPSC has Eleventh Amendment sovereign

immunity in federal court in suits requesting money damages. See

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102-03

(1984) ("[W]hen a plaintiff sues a state official alleging a

violation of federal law, the federal court may . . . not . . .

award[] retroactive monetary relief."); see also Leadbetter v. Rose,

467 N.W.2d 431, 432 (N.D. 1991) ("When an action is essentially

against the state to recover money, the state is the real party in

interest and is entitled to invoke sovereign immunity . . . .").

Even if the Tribe prevails on the merits, it nevertheless will lack

an adequate remedy at law against NDPSC. Cf. Modern Computer Sys.,

871 F.2d at 738 (rejecting claim of irreparable harm because party

had adequate remedy at law if it prevailed on the merits). The

Tribe has demonstrated a threat of irreparable harm if the

preliminary injunction is not reinstated.[5]

2. Balance Between Irreparable Harm to Tribe and Injury to NDPSC

The balance between the threat of irreparable harm to the Tribe

and injury to NDPSC if the preliminary injunction is reinstated

weighs in favor of the Tribe. Both the Tribe and NDPSC argue that

their respective sovereign authorities are threatened. NDPSC,

however, stated at oral argument that so long as this court did not

decide the merits of the case, it would suffer no harm if the

preliminary injunction were reinstated. Tape of Oral Arg., No.

93-1995.[6] Since the district court's rescission of the

preliminary injunction on February 3, 1993, NDPSC has chosen not to

exercise its claimed authority over Otter Tail. Id. Further,

unlike the Tribe, NDPSC is not threatened with any potential

economic harm if this court reinstates the preliminary injunction.

The balance of the irreparable harm to the Tribe and injury to NDPSC

weighs in favor of reinstatement of the preliminary injunction.

3. Likelihood of Success on the Merits

The Tribe argues that because the district court already has

granted partial summary judgment in its favor on the Tribe's

sovereign right to regulate electric services to tribal industries

on tribal land and on tribal trust land, its likelihood of success

on the merits is certain. NDPSC, however, interprets the district

court's statements as indicating that NDPSC will prevail on the

merits. We examine the district court's opinion.

In its opinion of February 3, 1993, which granted partial

summary judgment to the Tribe, the district court held:

[T]he sovereignty of the Devils Lake Sioux Tribe requires that

the Tribe may contract for the provision of electrical and

other regulated services to tribal operated industries or

facilities located upon tribal owned or trust lands, without

regard to the regulations of the North Dakota Public Service

Commission in attempted enforcement of the so called

Territorial Integrity Act.

Dist. Ct. Op. at 7 (Feb. 3, 1993) (emphasis added). The district

court also stated:

Obviously, the regulation of electrical service within the

reservation is a meaningless gesture if the electrical service

cannot get to the reservation, and while the court is willing

to acknowledge tribal sovereignty, it is not willing to try to

curtail the exercise of state sovereignty which may well

frustrate the tribal government. . . . The Court is hopeful

that good will and common sense will prevail, and in their

absence believes the solution is one for Congress rather than

this Court.

Id. at 6-8 (emphasis added). Upon a motion by NDPSC, the district

court later clarified its opinion by stating

[t]he court's previous decision, while granting partial summary

judgment to the [Tribe], may have been an illusory victory.

The court does not have jurisdiction over [NDPSC] and does not

pretend [to] know how the tribal government can guarantee

electrical service to its tribally owned property within the

reservation. . . . The court made no decision as to the power

of [NDPSC].

Dist. Ct. Op. at 2 (Mar. 15, 1993) (emphasis added). Thus, the

parties' contradictory conclusions both find support in the

district court's opinion. We decline to resolve the ambiguity in

the district court's statements because to do so could resolve

indirectly what we lack jurisdiction to resolve directly. See supra

note 1. Because both parties rely upon the district court's opinion

to support their arguments that they are likely to prevail on the

merits, we conclude that neither the Tribe nor NDPSC has

demonstrated a likelihood of success on the merits.

4. Public Interest

The final Dataphase factor is the public interest. The Tribe

argues that rescission of the preliminary injunction is against the

public interest because it results in uncertainty and will force the

Tribe to pay a premium for electric services. On balance, we

conclude that the public interest weighs in favor of reinstatement

of the preliminary injunction.

First, we must reject the Tribe's uncertainty argument.

Regardless of the resolution of the preliminary injunction issue,

uncertainty will exist until the district court decides this dispute

on the merits. We conclude, however, that the public interest

favors reinstatement of the preliminary injunction during the

pendency of the litigation. Presently, Otter Tail provides

electricity to DTI. Before Baker Electric could provide service to

DTI, it would need to construct 250 feet of underground lines. The

public ultimately would bear the cost of this construction. If this

court does not reinstate the temporary restraining order and the

Tribe ultimately prevails on the merits, the additional construction

costs borne by the public would constitute a wasted investment.

Conversely, if we reinstate the temporary restraining order and

NDPSC ultimately prevails on the merits, the public will have

suffered no additional cost because Otter Tail already has expended

the resources necessary to build lines to DTI. Thus, the public's

interest in minimizing unnecessary cost weighs in favor of

reinstatement of the preliminary injunction. Cf. James River Flood

Control Ass'n v. Watt, 680 F.2d 543, 544-45 (8th Cir. 1982) (per

curiam) (public interest served by avoiding "greater expenditures

from the public treasury").

5. Conclusion

We hold that the Tribe has carried its burden of demonstrating

that the district court abused its discretion when it rescinded the

preliminary injunction. The Tribe has demonstrated that: it faces

a threat of irreparable harm; the potential harm to NDPSC, in light

of its concession at oral argument, is outweighed by the threat of

irreparable harm to the Tribe; and the public interest weighs in

favor of reinstatement. Therefore, we reverse and remand to the

district court with instructions to reinstate the preliminary

injunction during the pendency of the litigation.

C. Suit 4, No. 93-1701, Otter Tail v. Hagen

Otter Tail appeals the district court's dismissal of its suit

against the members of NDPSC based on res judicata. To support this

determination, the district court relied upon the North Dakota

Supreme Court's decision in In re Application of Otter Tail Power

Co., 451 N.W.2d 95 (N.D. 1990). Unsure of the basis for the

district court's decision, the parties have briefed and argued both

res judicata and collateral estoppel.[7]

Res judicata and collateral estoppel are issues of substantive

law requiring the application of the law of the forum state. Kuehn

v. Garcia, 608 F.2d 1143, 1147 (8th Cir. 1979), cert. denied, 445

U.S. 943 (1980). This court must give preclusive effect to state

court judgments whenever the courts of the state court would do so.

Newman Signs, Inc. v. Sinner, 796 F.2d 247, 249 (8th Cir. 1986).

Under North Dakota law, the applicability of res judicata or

collateral estoppel is a question of law. Hofsommer v. Hofsommer

Excavating, Inc., 488 N.W.2d 380, 383 (N.D. 1992).

"Res judicata is a term often used to describe such doctrines

as merger, bar, and collateral estoppel." Id. (internal quotation

marks omitted). "Res judicata, or claim preclusion, is the more

sweeping doctrine that prohibits the relitigation of claims . . .

that [1] were raised or could have been raised in a prior action [2]

between the same parties or their privies and [3] which w[ere]

resolved by final judgment in a court of competent jurisdiction."

Id.

"[C]ollateral estoppel, or issue preclusion, generally

forecloses the relitigation . . . of particular issues of either

fact or law which were . . . litigated and determined in the prior

suit." Id. Under North Dakota law, a litigant must satisfy four

tests before collateral estoppel will bar relitigation of a fact or

issue from an earlier lawsuit:

(1) Was the issue decided in the prior adjudication identical

to the one presented in the action in question?; (2) Was there

a final judgment on the merits?; (3) Was the party against whom

the plea is asserted a party or in privity with a party to the

prior adjudication?; and (4) Was the party against whom the

plea is asserted given a fair opportunity to be heard on the

issue?

Id. at 384. In addition, North Dakota has adopted comment i to the

Restatement (Second) of Judgments  27. See Vanover v. Kansas City

Life Ins. Co., 438 N.W.2d 524, 526 (N.D. 1989). Comment i to  27

states: "If a judgment of a court of first instance is based on

determinations of two issues, either of which standing independently

would be sufficient to support the result, the judgment is not

conclusive with respect to either issue standing alone."

Restatement (Second) of Judgments  27, cmt. i (1982). Thus, the

courts of North Dakota would not give preclusive effect to either of

two determinations by a court of first instance when each

determination independently supports the court's judgment. See

Vanover, 438 N.W.2d at 526. We now turn to apply these doctrines.

First, we hold that the doctrine of res judicata, or claim

preclusion, does not bar Otter Tail's suit against the members of

NDPSC because the present case involves a claim that was not, and

could not have been, raised in the prior litigation. Application of

Otter Tail involved a determination of whether NDPSC "ha[d]

regulatory authority over electric utilities competing for a service

point within an Indian reservation." 451 N.W.2d at 96 (emphasis

added). The North Dakota Supreme Court limited its supervisory

review to whether NDPSC "had jurisdiction to regulate electric

service to the DTI building on the reservation." Id. at 97.

In contrast, Suit 4, No. 93-1701, Otter Tail v. Hagan, involves

Otter Tail's attempt to prevent the members of NDPSC from

interfering with its provision of electric services to the Tribe's

Headstart facility. The Tribe authorized Otter Tail to provide

electric services to the Headstart facility in October 1991, Otter

Tail's App. No. 93-1701, at 31, well over a year after the North

Dakota Supreme Court issued its opinion in Application of Otter

Tail. See 451 N.W.2d at 95 (opinion filed Jan. 25, 1990). Otter

Tail's claim arises from a separate cause of action that Otter Tail

could not have raised in the prior litigation. See Hofsommer, 488

N.W.2d at 383. We hold that claim preclusion does not bar Otter

Tail's claim.

Second, we conclude that the doctrine of collateral estoppel

does not preclude Otter Tail's suit. In Application of Otter Tail,

the North Dakota Supreme Court decided that NDPSC had regulatory

authority over electric utilities competing for a service point

within the Reservation. 451 N.W.2d at 96. The North Dakota Supreme

Court supported this holding on two distinct bases: (1) Otter Tail

lacked standing to raise the rights of the Tribe, id. at 98, and (2)

assuming that Otter Tail had standing to assert the self-government

rights of the Tribe, the Tribe had no right to regulate electric

utilities on the Reservation, id. at 101-07.

Either of the two bases relied upon by the North Dakota Supreme

Court standing alone was sufficient to support the result

in that case. See id. at 107-08 (Levine, J., concurring in result

based solely on third-party standing determination). Further,

through application of its supervisory powers, the North Dakota

Supreme Court asserted original jurisdiction and thus was the "court

of first instance" in that case. See id. at 97; see also Vanover,

438 N.W.2d at 526 (holding that neither of two alternative bases by

a court of first instance could be used to preclude relitigation of

either issue).[8] We conclude that collateral estoppel does not

preclude Otter Tail's claim in this case. See id.

NDPSC also raises numerous other arguments for affirmance upon

which the district court has not yet ruled. The district court

should analyze these arguments in the first instance. Therefore, we

reverse the district court's dismissal of Otter Tail's suit based on

res judicata.

III. DIRECTIONS ON REMAND

We remand with instructions that the district court make

detailed factual determinations and set out its analysis in support

of its legal determinations. On remand, the district court should

consider the factors set out in Montana v. United States, 450 U.S.

544 (1981), and its progeny, to settle the core issue in this

dispute: whether the Tribe has the sovereign authority to regulate

electric services on the Reservation, and whether the Tribe's

authority preempts that of NDPSC. The district court should

determine: first, whether Congress has granted the Tribe the

authority to regulate electric services through the 1867 Treaty or

through subsequent congressional legislation; second, if Congress

has granted the Tribe regulatory authority over electric services,

whether Congress later has abrogated that regulatory authority;

third, if Congress has abrogated the Tribe's express regulatory

authority over electric services, whether the Tribe retains inherent

authority to regulate electric services on the Reservation; fourth,

and finally, if the Tribe retains regulatory authority over electric

services, whether that authority preempts NDPSC's authority.[9]

A. Express Authority of the Tribe

To determine whether the Tribe has express authority to

regulate electric services utilities on the Reservation, the

district court should first look to the Tribe's 1867 Treaty with the

United States, which states:

The chiefs and head-men located upon either of the reservations

set apart for said bands are authorized to adopt such rules,

regulations, or laws for the security of life and property, the

advancement of civilization, and the agricultural prosperity of

the members of said bands . . . shall have authority, under the

direction of the agent, and without expense to the Government,

to organize a force sufficient to carry out all such rules,

regulations, or laws.

Tribe's App. No. 93-1995, at 58. The 1867 Treaty also states that

the Tribe "hereby cede[s] to the United States the right to

construct wagon-roads, railroads, mail stations, telegraph lines,

and such other public improvements as the interest of the Government

may require." Id. at 56. The district court should determine

whether the 1867 Treaty authorizes the Tribe to regulate electric

services on the Reservation. The district court also should

consider whether subsequent congressional acts grant the Tribe

authority to regulate electric services on the Reservation. See,

e.g., 28 U.S.C.  1360(b) (1988); 25 C.F.R.  1.4(a) (1993).

B. Congress's Abrogation of the Tribe's Rights

If the district court determines that the 1867 Treaty or

subsequent congressional acts have invested the Tribe with the

authority to regulate electric services on the Reservation, the

district court should then determine whether later congressional

action has abrogated that authority. The district court should keep

in mind that Congress can abrogate the Tribe's treaty rights, but

must do so explicitly. See South Dakota v. Bourland, 113 S. Ct.

2309, 2315-16 (1993); cf. Montana v. United States, 450 U.S. 544,

560-61 (1981) (examining effect of subsequent alienation of land on

"exclusive use" language of prior treaty).

C. Tribe's Inherent Sovereignty

If the district court determines that the Tribe does not have

express authority to regulate electric services on the Reservation,

the district court should then determine whether the Tribe retains

inherent authority to do so. "Indian tribes possess the 'inherent

powers of a limited sovereignty which has never been extinguished.'"

EEOC v. Fond du Lac Heavy Equip. & Constr. Co., 986 F.2d 246, 248

(8th Cir. 1993) (quoting United States v. Wheeler, 435 U.S. 313, 322

(1978)). "[T]he 'exercise of tribal power beyond what is necessary

to protect tribal self-government or to control internal relations

is inconsistent with the dependent status of the tribes, and so

cannot survive without express congressional delegation.'"

Bourland, 113 S. Ct. at 2319 (quoting

Montana, 450 U.S. at 564).

The district court should determine whether regulation of

electric services is necessary to protect the Tribe's

self-government rights or to control the internal relations within

the Tribe. Generally, inherent tribal authority does not extend to

the activities of nonmembers of the Tribe on fee land, id., but

inherent tribal authority generally does extend to civil

jurisdiction over activities by nonmembers of the Tribe on tribal

land or on land held by the United States in trust for the Tribe.

See Montana, 450 U.S. at 557, 565. Further, the district court

should distinguish its inherent-authority determinations with

reference to the character of the land at issue, i.e., tribal trust

land, tribal land, or fee land.

The district court also should address the limitation on the

regulatory power of the Tribe over nonmembers. That general

limitation has two exceptions. First, "a tribe may regulate,

through taxation, licensing, or other means, the activities of

nonmembers who enter consensual relationships with the tribe or its

members, through commercial dealings, contracts, leases, or other

arrangements." Id. at 565. The district court should determine

whether providing electricity to the Reservation involves a

consensual relationship. Second, "a tribe may . . . retain inherent

power to exercise civil authority over the conduct of non-Indians on

fee lands within its reservation when that conduct threatens or has

some direct effect on the political integrity, the economic

security, or the health or welfare of the tribe." Id. at 566

(emphasis added). The district court should determine whether

provision of electric services to DTI, the Tribe's Headstart

facility, or other locations on the Reservation has a direct effect

on the political integrity, economic security, or the health and

welfare of the Tribe.

D. Preemption of State Law

Finally, if it determines that the Tribe has the authority to

regulate electric services on the Reservation, the district court

should analyze whether the Tribe's authority preempts the authority

of NDPSC. The district court should keep in mind that "'tribal

sovereignty is dependent on, and subordinate to, only the Federal

Government, not the States,'" California v. Cabazon Band of Mission

Indians, 480 U.S. 202, 207 (1987) (quoting Washington v.

Confederated Tribes of Colville Indian Reservation, 447 U.S. 134,

154 (1980)). "[S]tate laws may be applied to tribal Indians on

their reservations if Congress has expressly so provided." Id.

Further, state jurisdiction is preempted "'if it interferes or is

incompatible with federal and tribal interests reflected in federal

law, unless the state interests at stake are sufficient to justify

the assertion of state authority.'" Id. at 216 (quoting New Mexico

v. Mescalero Apache Tribe, 462 U.S. 324, 334 (1983)). The district

court should conduct this inquiry "in light of traditional notions

of Indian sovereignty and the congressional goal of Indian

self-government, including its 'overriding goal' of encouraging

tribal self-sufficiency and economic development." Id.

IV. CONCLUSION

For these reasons we reverse the district court's judgment, and

we remand to the district court with instructions.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

1. Devils Lake Sioux Indian Tribe v. North Dakota Pub. Serv. Comm'n,

No. 90-179, slip op. at 7 (D.N.D. Feb. 3, 1993) (hereinafter, "Dist.

Ct. Op. at __ (Feb. 3, 1993)"). The district court also granted

partial summary judgment to the Tribe. That decision is not on

appeal before us.

2. The district court stated that "the Tribe has not consented to

suit against it in this court by Baker and Sheyenne Valley

cooperatives, and therefore [those cases] are hereby DISMISSED . . .

as this court has no jurisdiction over the tribal entity without its

consent." Dist. Ct. Op. at 7 (Feb. 3, 1993). The district court

gave no further reasoning in support of its decision.

3. An officer suit constitutes a limited exception to the doctrine

of sovereign immunity whereby plaintiffs may vindicate rights

infringed by the sovereign. Nix v. Norman, 879 F.2d 429, 432 (8th

Cir. 1989) (describing officer suits against state officials). If

an officer acts pursuant to a sovereign enactment that violates

federal law, the officer acts without the sovereign's authority and

therefore is subject to suit for prospective injunctive relief. Id.

at 432.

4. Hereinafter, we will refer to the district court's September 4,

1990 TRO as "the preliminary injunction."

5. We note that the Tribe also faces a threat of irreparable harm

because Otter Tail apparently provides less expensive electric

services than Baker Electric. See NDPSC's App. No. 93-1995, at 559

(discussing differences in electric services prices). If the Tribe

is forced to purchase the more expensive services during the

pendency of the litigation, the increased cost threatens the

revenues of the Tribe.

6."[NDPSC]: [Reinstatement of the preliminary injunction] doesn't

harm [NDPSC] so long as it is very carefully drawn so that . . . the

tribe will [not] be able to argue that it is somehow the final or

advisory ruling from this court on the jurisdictional issue." Id.

"[COURT]: [W]hy shouldn't we retain the preliminary injunction

until the final and ultimate resolution in this issue? [NDPSC]: So

long as that decision does not indirectly or directly deal with the

regulatory issue, with the jurisdictional issue, I don't have a

great problem with that." Id.

7. The district court held that "the action by Otter Tail is barred

by the doctrine of res judicata, the judgment of the North Dakota

Supreme having become a final judgment." Dist. Ct. Op. at 7 (Feb.

3, 1993). Earlier in its opinion, the district court stated that

"Otter Tail did not seek certiorari for review of the decision of

the North Dakota Supreme Court which determined that Otter Tail was

not excused from the jurisdiction of the [NDPSC] by virtue of the

Tribal Council Resolution. That judgment is final, whether Justice

Meschke's analysis is dicta or not." Id. at 6. The district court

provided no further analysis in support of its decision.

8. Although administrative agencies are not courts, some of their

decisions may have preclusive effect. Westman v. Dessellier, 459

N.W.2d 545, 547 (N.D. 1990). North Dakota courts, however, are more

cautious to give preclusive effect to administrative determinations.

United Hosp., 466 N.W.2d at 599 (N.D. 1991). NDPSC was one of the

parties appearing before the North Dakota Supreme Court in

Application of Otter Tail, 451 N.W.2d at 95. Cf. id. (declining to

give preclusive effect to county commission determination where

commission acted as agent for county and decided for its principal).

Thus, we conclude that the North Dakota Supreme Court was the court

of first instance.

9. In its Clarifying Order, the district court stated that "[t]he

court does not have jurisdiction over [NDPSC]." Dist. Ct. Op. at 2

(Mar. 15, 1993). That statement is incorrect because the court has

jurisdiction over NDPSC through the suits against NDPSC's members.

See Ex parte Young, 209 U.S. at 159-60.