INSTRUCTIONS

1. You will have 90 minutes to complete this session of the examination. This performance
test is designed to evaluate your ability to handle a select number of legal authorities in
the context of a factual problem involving a client.

2. The problem is set in the fictitious state of Franklin, in the fictitious Fifteenth Circuit of
the United States. Columbia and Olympia are also fictitious states in the Fifteenth Circuit.
In Franklin, the trial court of general jurisdiction is the District Court, the intermediate
appellate court is the Court of Appeal, and the highest court is the Supreme Court.

3. You will have two kinds of materials with which to work: a File and a Library. The first
document in the File is a memorandum containing the instructions for the task you are to
complete. The other documents in the File contain factual information about your case
and may also include some facts that are not relevant.

4. The Library contains the legal authorities needed to complete the task and may also
include some authorities that are not relevant. Any cases may be real, modified, or
written solely for the purpose of this examination. If the cases appear familiar to you,
do not assume that they are precisely the same as you have read before. Read them
thoroughly, as if they all were new to you. You should assume that the cases were decided
in the jurisdictions and on the dates shown. In citing cases from the Library, you may use
abbreviations and omit page references.

5. Your response must be written in the answer book provided. In answering this
performance test, you should concentrate on the materials provided. What you have
learned in law school and elsewhere provides the general background for analyzing the
problem; the File and Library provide the specific materials with which you must work.

6. Although there are no restrictions on how you apportion your time, you should be sure
to allocate ample time (about 45 minutes) to reading and digesting the materials and to
organizing your answer before you begin writing it. You may make notes anywhere in the
test materials; blank pages are provided at the end of the booklet. You may not tear pages
from the question booklet.

7. This performance test will be graded on your responsiveness to the instructions regarding
the task you are to complete, which are given to you in the first memorandum in the File,
and on the content, thoroughness, and organization of your response.

iii
 FILE
Acme Resources, Inc. v. Black Hawk et al.
 Peterson, Michaels & Williams
Attorneys at Law
1530 Lakeside Way
Franklin City, Franklin 33033

MEMORANDUM

TO: Applicant
FROM: Conrad Williams
DATE: July 24, 2007
RE: Black Hawk et al. v. Acme Resources, Inc. (Black Eagle Tribal Court);
Acme Resources, Inc. v. Black Hawk et al. (U.S. Dist. Court for the Dist. of Franklin)

We represent Robert Black Hawk and seven other members of the Black Eagle Indian Tribe
(the Tribe) in an action in Black Eagle Tribal Court (Tribal Court) against Acme Resources, Inc.
(Acme). Acme’s mining activities, specifically the extraction of coal bed methane, have caused
our clients’ water wells to begin to run dry. In the Tribal Court action we are seeking damages
and an injunction ordering Acme to cease its operations on the Black Eagle Indian Reservation.

The coal bed methane underlies private land on the Reservation owned in fee simple by Patrick
Mulroney, who is not a member of the Tribe. While Mulroney owns the surface of the land, the
underlying minerals are owned by the Tribe. The Tribe granted Acme the right to extract the
methane from under Mulroney’s land in exchange for a royalty. At the same time, Mulroney
granted Acme the right to use his land to build the infrastructure that is necessary for mining.

In response to our complaint in Tribal Court, Acme filed an answer denying liability and also
denying the jurisdiction of the Tribal Court. No further proceedings have occurred in Tribal Court.
Instead, Acme filed a separate federal action in U.S. District Court for the District of Franklin
seeking both a declaratory judgment that the Tribal Court lacks jurisdiction in this matter and an
injunction against prosecution of our Tribal Court action. (See attached complaint.)

I plan to respond to Acme’s complaint by filing a motion with the federal court: (1) for summary
judgment on the ground that the Tribal Court has jurisdiction; or, in the alternative (2) to stay or
dismiss Acme’s federal action on the ground that the Tribal Court should be permitted to consider
its jurisdiction over the matter. (See attached draft motion and affidavits of Robert Black Hawk
and Jesse Bellingham, Ph.D.)

Please draft the argument sections of the brief in support of both points. Each distinct point in the
argument should be preceded by a subject heading that encapsulates the argument it covers and
succinctly summarizes the reasons the court should take the position you are advocating. A head-
ing should be a specific application of a rule of law to the facts of the case and not a bare legal
or factual statement of an abstract principle. For example, improper: The Police Did Not Have

1
Probable Cause to Arrest Defendant. Proper: The Fact That Defendant Was Walking Alone in a
High-Crime Area at Night Without Photo Identification Was Insufficient to Establish Probable
Cause for His Arrest.

The argument under each heading should analyze applicable legal authority and state persuasively
how the facts and the law support our clients’ position. Authority supporting our clients’ posi-
tion should be emphasized, but contrary authority should also generally be cited, addressed, and
explained or distinguished. Be sure to address the grounds asserted in Acme’s complaint; do not
reserve arguments for reply or supplemental briefs. No statement of facts is necessary, but be sure
to incorporate the relevant facts into your argument.

2
 Transcript of Interview
with Robert Black Hawk
May 18, 2007

Williams: Good afternoon, Mr. Black Hawk. What can I do for you?
Black Hawk: My neighbors and I are at the end of our ropes. We are all members of the Black
Eagle Tribe and we are in bad shape. Our wells are running dry.
Williams: Do you know why?
Black Hawk: You bet we do. Two years ago, Acme Resources came onto our Reservation with
promises of jobs and riches. Acme wanted to develop a huge coal bed methane
field under the Reservation. The easiest access to the field is by way of Patrick
Mulroney’s land. None of us tribal members wanted it because we had heard of
water problems associated with the development of coal bed methane.
Williams: I know that methane is a primary source of natural gas and that coal bed methane
is simply methane found underground in coal seams. How does developing coal
bed methane affect your water wells?
Black Hawk: Well, I read up on this. Both groundwater and methane flow through fractures in
the coal seams—in fact, coal seams are often aquifers. To extract the methane,
water is pumped out of the coal seam. As the water pressure decreases, the meth-
ane separates from the groundwater and can be piped out. Developing coal bed
methane involves extracting huge quantities of groundwater to reduce the water
pressure enough to release the methane gas in the coal seam. Since my neighbors
and I all farm and ranch on land surrounding Mulroney’s place, we were worried
about our wells running dry because of the drop in water pressure.
Williams: And your worries came true.
Black Hawk: No kidding. We’re running out of water for our livestock and our crops. We’re
going to go broke because our land just won’t support us without water. A geolo-
gist who looked at it says that all wells on the Reservation are likely to be affected
eventually. We tried to tell the Tribal Council before it voted on the Acme agree-
ment, but the promises of easy money from Acme carried the day. Under the deal,
the Tribe is getting a 20 percent royalty on all methane production.
Williams: So you want to see what we can do for you?
Black Hawk: Yes. We really are in a tough spot. Word about the water problem has spread
around the Reservation and we believe the vast majority of our fellow tribal mem-
bers have second thoughts about what the Tribal Council did. We have a Tribal
Court and the judge is a fair man. He knows the history of our Tribe and tribal

3
 ways. We think that if he and a tribal jury could hear about our problems caused
by Acme’s extraction of the coal bed methane, we could win.
Williams: Well, I’ve litigated some in Tribal Court. I know there is no federal statute or trea-
ty addressing the Tribal Court’s civil jurisdiction. Your Tribe’s constitution and
code have some provisions in them about protecting the environment. Maybe that
could be a hook for us. I’m somewhat worried about the Tribal Council approving
the deal. Can you tell me what your losses have been?
Black Hawk: We neighbors got together with a farm finance guy from Franklin City. He esti-
mates our losses to date to be $1.5 million, and they aren’t done yet.
Williams: What about this Patrick Mulroney?
Black Hawk: Well, he’s a non-Indian—not a member of our Tribe. Mulroney owns fee land
within the Reservation that his family bought from Tribe members about a hun-
dred years ago. Anyway, I’m surprised he went along with the Acme deal because
he must be losing his water, too. But he’s getting a lot of money from Acme and
he’s been talking for years about selling and moving somewhere warmer. With the
money from the deal, he may not care anymore.
Williams: Okay. Let’s get your neighbors in to discuss filing an action in Tribal Court to see
what we can do.
Black Hawk: Great. I’ll get in touch with everybody and call you.

4
 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF FRANKLIN

Acme Resources, Inc., ) Case No. CV 103-07

Plaintiff, )
) COMPLAINT
v. )
)
Robert Black Hawk, Stewart Marsh, Irene Martin, )
James Davis, Mary Gray, Katherine White Horse, )
Lester Stewart, and James Black Hawk, )
Defendants. )

Plaintiff Acme Resources, Inc., alleges:

1. This action involves the federal question of whether the Black Eagle Tribal Court can
exercise jurisdiction over Acme Resources, Inc. (Acme), in an action brought by members
of the Black Eagle Indian Tribe arising out of a controversy involving the development of
coal bed methane underlying fee land owned by Patrick Mulroney, who is not a member
of the Tribe.
2. This court has jurisdiction under 28 U.S.C. § 1331.
3. Defendants are all members of the Black Eagle Indian Tribe and brought an action against
Acme in Black Eagle Tribal Court seeking damages and an injunction to stop Acme from
developing the coal bed methane underlying Mulroney’s land.
4. The Black Eagle Tribal Court lacks jurisdiction over Acme in the tribal court action
because Acme is not a member of the Tribe. Montana v. United States (U.S. 1981).
Wherefore, Acme Resources, Inc., prays the Court enter judgment:
1. Declaring that the Black Eagle Tribal Court lacks jurisdiction over Acme in the tribal court
action;
2. Enjoining the defendants from prosecuting the tribal court action; and,
3. Awarding Acme its costs and any other appropriate relief.

Dated: July 9, 2007 Respectfully submitted,


Frank Johnson
Franklin Bar #1012
Counsel for Acme Resources, Inc.

5
 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF FRANKLIN

Acme Resources, Inc., ) Case No. CV 103-07
Plaintiff, )
) MOTION FOR
v. ) SUMMARY JUDGMENT,
) OR TO STAY OR
Robert Black Hawk, Stewart Marsh, Irene Martin, ) DISMISS
James Davis, Mary Gray, Katherine White Horse, )
Lester Stewart, and James Black Hawk, )
Defendants. )

The above-named defendants move the Court as follows:
1. To grant the above-named defendants summary judgment on the ground that there exists

t
no genuine issue of material fact that the Black Eagle Tribal Court has jurisdiction over

f
plaintiff Acme Resources, Inc., and the action pending before it under Montana v. United

a
States (U.S. 1981), and that the defendants are entitled to judgment as a matter of law; or,
in the alternative,

r
2. To dismiss or stay this action on the ground that Acme has failed to exhaust its remedies

D
in the Black Eagle Tribal Court as required by National Farmers Union Ins. Cos. v. Crow
Tribe (U.S. 1985).
This motion is supported by the affidavits of Robert Black Hawk and Jesse Bellingham, the
pleadings on file, and a brief filed contemporaneously herewith.

Dated: July ____, 2007
Respectfully submitted,


_________________________
Conrad Williams
Franklin Bar # 1779
Counsel for Defendants

6
 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF FRANKLIN

Acme Resources, Inc., ) Case No. CV 103-07
Plaintiff, )
) AFFIDAVIT OF
v. ) ROBERT BLACK HAWK
) IN SUPPORT OF
Robert Black Hawk, Stewart Marsh, Irene Martin, ) DEFENDANTS’ MOTION
James Davis, Mary Gray, Katherine White Horse, ) FOR SUMMARY
Lester Stewart, and James Black Hawk, ) JUDGMENT, OR TO
Defendants. ) STAY OR DISMISS
County of Custer )
) ss:
State of Franklin )

Upon first being duly sworn, Robert Black Hawk says:
1. I am a member of the Black Eagle Tribe, a federally recognized Indian tribe.
2. I farm and ranch a 3,000-acre tract of land on the Black Eagle Reservation.
3. My land abuts land owned in fee simple by Patrick Mulroney. All of Patrick Mulroney’s land
is within the Black Eagle Reservation. Two years ago, Mulroney granted Acme Resources,
Inc., permission to use his land to explore for and develop coal bed methane.
4. The Black Eagle Tribe leased the minerals under Mulroney’s land to Acme, and Acme began
developing the coal bed methane.
5. Within six months of the commencement of Acme’s coal bed methane operation under
Mulroney’s land, the water wells on my land began to run dry. My neighbors have told me
that their wells are also running dry.
6. I cannot economically use my land to grow crops and feed my cattle without water, and there
is no other source of water reasonably available to me.

Dated: July 23, 2007
_________________________
Robert Black Hawk

Signed before me this 23rd day of July, 2007

________________________
Jane Mirren
Notary Public

7
 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF FRANKLIN

Acme Resources, Inc., ) Case No. CV 103-07
Plaintiff, )
) AFFIDAVIT OF JESSE
v. ) BELLINGHAM, Ph.D.,
) IN SUPPORT OF
Robert Black Hawk, Stewart Marsh, Irene Martin, ) DEFENDANTS’ MOTION
James Davis, Mary Gray, Katherine White Horse, ) FOR SUMMARY
Lester Stewart, and James Black Hawk, ) JUDGMENT, OR TO
Defendants. ) STAY OR DISMISS
County of Custer )
) ss:
State of Franklin )

Upon first being duly sworn, Jesse Bellingham says:
1. I am a geologist and have a Ph.D. in geology from the University of Franklin.
2. I was employed by Beta Resources in its mineral exploration department for twenty years
before I began my own forensic geology firm, Bellingham Geologic Consulting.
3. I was engaged by the defendants to conduct a study to determine the cause of the water wells
running dry on the Black Eagle Reservation and have completed my study.
4. Coal bed methane development requires the extraction of huge quantities of water from the
land. Based on my investigation of (a) the records of the water produced from the defen-
dants’ land over the last ten years, (b) geological studies of the area, and (c) my knowledge
and experience with coal bed methane development, it is my professional opinion that coal
bed methane development activity by Acme Resources, Inc., is causing the defendants’ wells
to run dry.
5. Due to the nature of the groundwater system underlying the Black Eagle Reservation, my
professional opinion is that it is likely all wells on the Reservation will run dry over the next
five years if Acme’s coal bed methane development continues.
Dated: July 23, 2007

_________________________
Jesse Bellingham, Ph.D.
Signed before me this 23rd day of July, 2007

____________________________
Jane Mirren
Notary Public
8
 Library
Acme Resources, Inc. v. Black Hawk et al.
 Article IV, Black Eagle Tribal Constitution

Section 1

The land forms part of the soul of the Black Eagle Tribe. The land of the Black Eagle Reservation
shall be preserved in a clean and healthful environment for the benefit of the Tribe and future
generations. The Tribal Council shall have power to enforce, by appropriate legislation, the provi-
sions of this section.

Black Eagle Tribal Code

§ 23-5 Protection of Reservation Environment

(1) Recognizing that a clean and healthful environment is vital to the economic security of the
Black Eagle Tribe, no person shall pollute or otherwise degrade the environment of the Black
Eagle Reservation.

(2) Any person harmed by a violation of subsection (1) may bring a civil action in Black
Eagle Tribal Court for damages and other appropriate relief against the person responsible for the
violation.

9
 AO Architects v. Red Fox et al.
United States Court of Appeals (15th Cir. 2005)

The question in this appeal is whether a claiming that the tribal court did not have
tribal court may exercise civil jurisdiction jurisdiction over it or the action pending in
over a nonmember of the tribe in a wrongful tribal court. The district court granted a pre-
death action arising from injuries on non- liminary injunction to AO Architects against
member fee land.1 further proceedings in the tribal court. The
tribe members appealed. For the reasons
The Church of Good Hope, composed of set forth below, we vacate the preliminary
tribal members, owns a parcel of land in fee injunction and remand for further proceed-
simple on the Red River Indian Reservation ings consistent with this opinion.
in the State of Columbia. The Church built
a meeting hall designed by AO Architects, a Standard of Review
firm with offices in Columbia City, Columbia. Whether a tribal court may exercise civil
The Church acted as its own general contrac- jurisdiction over a nonmember of the tribe
tor for the project. AO was not asked to, is a federal question. National Farmers
and did not, supervise the construction. The Union Ins. Cos. v. Crow Tribe (U.S. 1985).
meeting hall served the Church. However, We review questions of tribal court jurisdic-
from time to time the Red River Tribe leased tion and exhaustion of tribal court remedies
the hall for general tribal meetings where de novo. A district court’s order regarding
tribal leaders were elected and other tribe preliminary injunctive relief is reviewed for
business was conducted. abuse of discretion.

After a very heavy snowfall in January 2003, Governing Law
the meeting hall’s roof collapsed during a Analysis of Indian tribal court civil jurisdic-
general tribal meeting. Five tribe members tion begins with Montana v. United States
were killed and many more were injured. (U.S. 1981). In Montana, the United States
The families of those killed brought wrong- Supreme Court held that, although the tribe
ful death actions in tribal court against AO retained power to limit or forbid hunting or
Architects alleging negligence in the design fishing by nonmembers on land still owned
of the meeting hall roof. Before responding by or held in trust for the tribe, an Indian
to the complaint filed in tribal court, AO tribe could not regulate hunting and fishing
filed a complaint in federal district court by non-Indians on non-Indian-owned fee
land within the reservation. In what is often
1. The terms “nonmember fee land” and “non-Indian
fee lands” refer to reservation land acquired in fee referred to as Montana’s “main rule,” the
simple by persons who are not members of the tribe. Court stated that, absent express authoriza-

10
tion by federal statute or treaty, the inherent Indian land.” The Court declined to comment
sovereign powers of an Indian tribe do not, on the proper forum when an accident occurs
as a general proposition, extend to the activi- on a tribal road within a reservation.
ties of nonmembers of the tribe.
Strate also considered whether either of the
The Court acknowledged, however, that two Montana exceptions conferring tribal
“Indian tribes retain inherent sovereign court jurisdiction applied. In determining
power to exercise some forms of civil juris- that the case was not closely related to any
diction over non-Indians on their reserva- consensual relationship between a nonmem-
tions, even on non-Indian fee lands.” Id. The ber and the tribe or a tribe member, the Court
Court set out two instances in which tribes noted that the event at issue was a com-
could exercise such sovereignty: (1) “A tribe monplace state highway accident between
may regulate, through taxation, licensing, or two non-Indians. Therefore, even though
other means, the activities of nonmembers it occurred on a stretch of highway run-
who enter consensual relationships with the ning through the reservation, it was “dis-
tribe or its members, through commercial tinctly non-tribal in nature.” (Cf. Franklin
dealings, contracts, leases, or other arrange- Motor Credit Co. v. Funmaker (15th Cir.
ments”; and (2) “A tribe may also retain 2005), also finding no consensual relation-
inherent power to exercise civil authority ship under Montana because there was no
over the conduct of non-Indians on fee lands “direct nexus” between the lease entered
within its reservation when that conduct into by Franklin Motor Credit and the tribe
threatens or has some direct effect on the and the subsequent products liability claim
political integrity, the economic security, or against Franklin Motor Credit by a tribe
the health and welfare of the tribe.” Id. member injured while driving one of the
leased vehicles.)
In Strate v. A-1 Contractors (U.S. 1997),
the Court held that a tribal court had no Turning to the second Montana exception
jurisdiction to hear a personal injury lawsuit for activities that directly affect the tribe’s
between non-tribal members arising from a political integrity, economic security, or
car accident that occurred on a state high- health and welfare, the Court in Strate also
way running through a reservation. The road concluded that the facts did not establish
upon which the accident took place, although tribal civil jurisdiction. The Court recognized
on tribal land, was subject to a right-of-way that careless driving on public highways run-
held by the State of North Dakota. The Court ning through the reservation would threaten
determined that this right-of-way rendered the safety of tribal members. However, if
the stretch of road “equivalent, for nonmem- the assertion of such broad public safety
ber governance purposes, to alienated, non- interests were all that Montana required for

11
jurisdiction, the exception would swallow purpose other than delay. See Strate. In the
the rule. Instead, the exception must be inter- present case, tribe members allege that there
preted with its purpose in mind, which was has been no exhaustion of tribal remedies
to protect tribal self-government and control because AO Architects commenced this fed-
of internal relations. “Neither regulatory nor eral action without affording the tribal court
adjudicatory authority over the state highway the opportunity to consider the jurisdictional
accident at issue is needed to preserve ‘the issues.
right of reservation Indians to make their
own laws and be ruled by them.’” Strate Disposition
(quoting Montana). Here, the accident occurred on nonmem-
ber fee land, and AO Architects is not a
Exhaustion of Tribal Remedies member of the tribe. This would suggest
In National Farmers, the Supreme Court under Montana’s main rule that the tribal
applied a tribal exhaustion doctrine requir- court would lack jurisdiction. Moreover,
ing that a party exhaust its remedies in tribal on the record before us, it appears that AO
court before seeking relief in federal court. Architects did not perform any services on
This doctrine is based on a “policy of sup- the reservation, and that its contract was
porting tribal self-government and self-deter- with a nonmember of the tribe, the Church
mination,” and thus a federal court should of Good Hope.
ordinarily stay its hand “until after the tribal
court has had a full opportunity to determine Yet AO Architects must have known that
its own jurisdiction.” Id. In other words, the it was designing a building for use of large
tribal court should be given the first oppor- gatherings on the reservation, and it may
tunity to address its jurisdiction and explain well have known that the facility would be
the basis (or lack thereof) to the parties. In used by the tribe for general meetings involv-
such cases, the proceedings in federal court ing governance functions. The consequences
are stayed (or dismissed without prejudice) of AO Architects’ actions in designing the
while the tribal court determines whether it building would certainly be felt on the reser-
has jurisdiction over the matter. vation. We are mindful of the two exceptions
to Montana’s general rule against extending a
The Supreme Court has emphasized that the tribe’s civil jurisdiction to nonmembers of the
exhaustion doctrine is based on comity. The tribe in the absence of express Congressional
comity doctrine reflects a practice of defer- authorization or any treaty provision grant-
ence to another court and is not a jurisdic- ing a tribe jurisdiction.2 As discussed above,
tional prerequisite. Thus, where it is clear that those exceptions are that a tribe may have
a tribal court lacks jurisdiction, the exhaus-
tion doctrine gives way for it would serve no 2. The parties concede that no federal statute or
treaty bears on the question before us.

12
jurisdiction over (1) nonmembers who enter
into consensual relationships with the tribe
or its members, or (2) activities that directly
affect the tribe’s political integrity, economic
security, or health and welfare. Either or
both of the exceptions may have application
here.

The record comes to us on appeal from
a preliminary injunction. The proceedings
were abbreviated, and we are uncertain
on the record before us whether the tribal
court would have jurisdiction under either
of the Montana exceptions and whether AO
Architects must first exhaust its tribal court
remedies before seeking relief in federal
court.

Therefore, we vacate the preliminary injunc-
tion and remand to the district court to
develop a record and reach a reasoned con-
clusion on these issues of jurisdiction and
exhaustion. We express no opinion on these
questions.

Vacated and remanded.

13