The Ninth Circuit Court of Appeals affirmed the general rule that in certain circumstances, a dismissal without prejudice is a final, appealable order. In Elliott vs. White Mountain Apache Tribal Court, 566 F.3d 842 (9th Cir. 2009), the Plaintiff brought suit in Federal District Court seeking injunctive and declaratory relief against the Apache Tribe from conducting any further proceedings against her in a tribal court. Plaintiff had become lost on a tribal reservation and set a signal fire which resulted in her being rescued by a helicopter. However, the fire blew into a substantial forest fire which combined with another forest fire and burned more than 4,000 acres of land and caused millions of dollars in damage. The tribe brought suit against her and she moved to dismiss it for lack of jurisdiction. The Tribal court denied the motion and she then sought an interlocutory appellate review of the decision in the Tribal Appellate Court. However that court denied the request for review holding under its rules it could not entertain interlocutory appeals. It dismissed the case and returned it to the Tribal Court for further proceedings.
The District Court held that the plaintiff must exhaust her Tribal Court remedies and granted Defendant’s Motion to Dismiss. The District Court then dismissed the action without prejudice to its refiling after Plaintiff had exhausted her Tribal Court remedies. Plaintiff then appealed and among other things, Defendant moved to dismiss the appeal on the ground that there was not a final appealable order because the action was dismissed “without prejudice.” A Court of Appeals said that the test of finality for an appeal is that there is a full adjudication of the issues and that the ruling clearly evidences the judge’s intention that it be the court’s final act in the matter. The court concluded that the second prong of the finality test concerning the court’s intent was met and then said
The first prong of the test, which is separate from the district court’s intent, is whether there has been a “full adjudication of the issues.” (Citation omitted). Here, there has been a full adjudication of the issue whether Plaintiff must exhaust tribal court remedies; unless and until Plaintiff exhausts her tribal court remedies, there is nothing further for the district court to do. (p. 846)