Tuesday, April 1, 2008

Tribal Court Jurisdiction over Non members

This will be argued April 14th in the US Supreme Court-this is an important case in which Tribal Courts could help Indian Tribes become less isolated - Most Native Americans have never fared well in *American* courts and as such would prefer to settle tribal matters and business within Tribal Courts.

Always a concern when Tribes relinquish or waive their sovereign immunity when entering agreements or contracts with non tribal members or companies - this type of waiver appears to be a one sided solution to companies outside Indian Country trying to do business with Indian companies or Tribes - usually when such immunity is waived the non tribal company is looking for damages in a failed contract and since most tribes do not have a court system, those actions go to the *American* Courts....Historically this immunity has caused many non Indian companies or businesses to forgo doing business with Indian Tribes.

The solution: (Ms Watson take note - the offer of a solution here - not draconian bills)

First, if a non member company desires to do business with an Indian tribe or it's businesses and seeks such a wavier in a contract or agreement with the tribal or tribal business - then that same non member company or business should also be willing to stipulate that the cause or case will be heard in the tribal court - thus eliminating lengthy litigation over whether or not the tribal courts have jurisdiction. (this eliminates two concerns - one for the non member company - they can have redress for any perceived wrongs under the contract or agreement and one for the tribes which often feel they enter a biased court when their cases are heard in the *American* Courts.) Asking a tribe to waive immunity and then also asking them to stipulate to having any disputes heard in the state courts, is not a level playing field.

Second, if a tribe has a sophisticated tribal court system (as the Cherokee) then that courts decision should be given the same type of comity any other foreign jurisdiction.

If the American Courts continue to have jurisdiction over these important issues of business in Indian Country - this will become a deterrent to eliminating the isolation that many politicians feel Indians have - however, if self-determination is indeed more than just political talk then giving the tribal courts some bite will go a long way in bringing non member and tribal governments onto a fairer playing field when doing business together.

If a non member company or business wanting to do business in Indian country and the tribe has a court system and laws - it would seem to me that it is incumbent upon them to become familiar with their laws, rather than arguing after the fact that they don't understand their laws - although they expect tribes to understand *American* laws. A little due diligence goes a long ways before entering an agreement or contract in Indian Country. When a company does business in another state they check and follow those laws - why should doing business in Indian country be any different?

At the oral arguments: http://indianz.com/News/2008/008185.asp

(applies goverment to goverment) Comity, in law, refers to legal reciprocity—the principle that one jurisdiction will extend certain courtesies to other nations (or other jurisdictions within the same nation), particularly by recognizing the validity and effect of their executive, legislative, and judicial acts. The term refers to the idea that courts should not act in a way that demeans the jurisdiction, laws, or judicial decisions of another jurisdiction. Part of the presumption of comity is that other jurisdictions will reciprocate the courtesy shown to them. Many statutes relating to the enforcement of foreign judgments require that the judgments of a particular jurisdiction will be recognized and enforced by a forum only to the extent that the other jurisdiction would recognize and enforce the judgments rendered by that forum. See reciprocity (international relations).

(applies state to state within U.S.) Full Faith and Credit Clause
Article IV, Section 1 of the United States Constitution, commonly known as the Full Faith and Credit Clause, addresses the duties states within the United States have to respect the "public acts, records, and judicial rulings" of other states. Judges and lawyers agree on the meaning of the clause with respect to the recognition of judgments rendered by one state in the courts of another. Barring exceptional circumstances, one state must enforce a judgment rendered in another, unless that court lacked jurisdiction, even if the enforcing court otherwise disagrees with the result.[1] However, the meaning of the "public acts" requirement as a constitutional guide for "choice of law" is less clear. [2] At present, it is widely agreed that the clause has little impact on that issue.[3] However, at one point, it appeared to be a more significant command.[4]

And now the case:

Plains Commerce Bank v. Long Family Land & Cattle (07-411)

Oral argument: April 14, 2008

Appealed from: United States Court of Appeals, 8th Circuit (June 26, 2007)


In 1999, the Plains Commerce Bank filed an eviction notice in Cheyenne River Sioux Tribal Court against the Long Family Land and Cattle Company. The bank had no tribal affiliation, but the company belonged to members of the Cheyenne River Sioux Tribe and operated on reservation land. The land in question had once belonged to the company’s owners, but it came under the bank’s ownership when the company defaulted on its loans. For two years, the company leased its land from the bank. When the lease expired, the bank attempted to evict the company, which responded by alleging a pattern of predatory lending by the bank. After a jury trial, the tribal court awarded the company $750,000 in damages and the option to buy back its land. The bank then filed a lawsuit in the U.S. District Court for the District of South Dakota, claiming that the tribal court lacked jurisdiction to decide the case. Both the District Court and the Eighth Circuit Court of Appeals, however, held that the tribal court did have jurisdiction. The bank now appeals to the U.S. Supreme Court in a case that will test the jurisdictional power of tribal courts over non-tribal parties.

Question presented

Whether Indian tribal courts have subject-matter jurisdiction to adjudicate civil tort claims as an “other means” of regulating the conduct of a nonmember bank owning fee-land on a reservation that entered into a private commercial agreement with a member-owned corporation?


In Montana v. United States, the Supreme Court held that a Native American tribal government generally lacks authority over nonmembers of its tribe. One exception to this rule allows a tribe to regulate—through taxation, licensing, or “other means”—the activities of nonmembers who engage in consensual business relationships with the tribe or its members. The Supreme Court’s decision in this case will most likely determine whether a tribal court can use this exception to assert jurisdiction over a non-tribal entity that owns land on a tribal reservation.


This case results from a dispute between Plains Commerce Bank and the Long Company over a bank loan. The Long Company is a family-owned farming and ranching business located on the Cheyenne River Sioux Indian Reservation and incorporated as a South Dakota corporation. See Plains Commerce Bank v. Long Family Land and Cattle Co., Inc., 491 F.3d 878, 881 (2007). Members of the Cheyenne River Sioux tribe own over 51% of the Long Company. See id. The Long Company was able to obtain loans partially backed by the Bureau of Indian Affairs from Plains Commerce Bank because of their Native American affiliation, and had been doing so for years. See id. Kenneth Long, a part-owner of the corporation, personally owned 2,230 acres of land which he mortgaged to Plains Commerce Bank in exchange for loans to the Long Company. See id. When Kenneth died in 1995, he and the Long Company owed the bank $750,000. See id.

After Kenneth’s death, the Longs negotiated the terms of a new loan with Plains Commerce Bank. See Plains Commerce Bank v. Long Family Land and Cattle Co., Inc., 491 F.3d at 882.The Longs agreed to give the bank the mortgaged land. In exchange, Plains Commerce Bank agreed to cancel some of the Long Company’s debt and give it additional loans. See id. The Bank also leased the property back to the Longs for two years and gave them the option to purchase the property back from the Bank. See id. The Longs claim that the bank initially offered them more favorable terms but withdrew the offer because the Long Company was an “Indian owned entity on the reservation.” See id. at 881–82. They also claim that the Bank never provided the loan they agreed upon. See id. at 882.

The winter of 1996–1997 was particularly harsh in South Dakota, and the Longs lost hundreds of their livestock animals. See Plains Commerce Bank v. Long Family Land and Cattle Co., Inc., 491 F.3d at 882. As a result, they were unable to purchase their land back after the lease ended, and the Bank sued to evict them. See id. The Bank then sold the land to non-tribal members for a lower interest rate than it had offered the Longs. See id.

The Longs sued the Bank in the Cheyenne River Sioux Tribal Court to prevent the sale from occurring. See Plains Commerce Bank v. Long Family Land and Cattle Co., Inc., 491 F.3d at 882; Brief for Petitioner at 8. They claimed that the Bank breached the contract and that the Bank discriminated against them. See id. Shortly before the trial ended, the Bank asserted that the tribal court did not have jurisdiction over the discrimination claim. See id. The tribal court found it did have jurisdiction, and the jury awarded $750,000 to the Longs. See id. at 882–83. The tribal court of appeals affirmed the decision. See id. The Bank then petitioned the United States District Court for the District of South Dakota to set aside the tribal court decision for lack of jurisdiction and lack of due process. See id. The District Court and the U.S. Court of Appeals for the Eighth Circuit affirmed jurisdiction. See Plains Commerce Bank v. Long Family Land & Cattle Co., Inc., 440 F.Supp.2d 1070 (2006); Plains Commerce Bank v. Long Family Land and Cattle Co., Inc., 491 F.3d. Plains Commerce Bank appeals to the Supreme Court, arguing that the tribal courts lack jurisdiction over non-tribal members.


Native American tribes have had the power to govern themselves since the 1830s. See FAQs Concerning American Indians and Alaska Natives, Office of the Assistant Secretary for Planning and Evaluation, U.S. Department of Health & Human Services. Therefore, they may admit members to the tribe, make and enforce laws on their reservations, tax their members, license and regulate activities, and exclude people from their lands. See id. Tribal self-government also includes tribal courts, which, like American courts, hear and decide cases. See id. According to the Senate Committee on Indian Affairs, tribal courts are critical to ensuring tribal laws are justly enforced. See S. Rep. No. 103-88, 1993 WL 304728, at *3; NAICJA et al. Amicus Brief supporting Respondent at 7.

Over the past few decades, the United States Supreme Court has limited tribal court jurisdiction, or the types of cases which tribal courts can hear. See Judging Civil Liability Using “Values, Mores, and Norms” by William Perry Pendley, March 1, 2008. Tribal courts may no longer hear many criminal cases against non-tribal members. See id. Jurisdiction over non-members in civil cases is limited to instances where non-members have entered into a consensual relationship with tribal members or conduct has affected the tribe’s welfare. See Montana v. U.S., 450 U.S. 544 (1981).

According to Tribal Practice lawyers Julio V.A. Carranza and Anthony Broadman Plains Commerce Bank seeks to further limit tribal court jurisdiction over non-members, if not eliminate it entirely. See Plain and Simple: The Supreme Court Could Foreclose Tribal Court Civil Jurisdiction Over Non-Indians. The Cheyenne River Sioux Tribe asserts that jurisdiction over non-members is critical because many banks discriminate against Native Americans and are not punished. See Brief of Cheyenne River Sioux Tribe as Amicus Supporting Affirmance on Appeal to the 8th Circuit at 5. Editors at Indian Country Today state that Native Americans are often reluctant to use American courts and prefer to use tribal methods of conflict resolution. See Reclaim Justice as Key to Self-Governance, Indian Country Today, November 30, 2006. They explain that tribal members feel powerless in the American system and do not trust that American courts will treat them fairly. See id.

Mountain States Legal Foundation emphasizes the difference between American courts and tribal courts. According to Mountain States Legal Foundation, American courts focus on specific incidents while tribal courts focus on repairing relationships. See Mountain States Legal Foundation Amicus Brief supporting Petitioner at 12–13. Furthermore, they claim that tribal laws are based on the unique customs, traditions and social norms of each tribe and are often passed down orally and may change without notice. See id. at 7, 12–14. Therefore, Mountain States Legal Foundation and the American Bankers Association argue that tribal law is vague and non-members cannot understand it. See id.; Brief for American Bankers Association as Amicus Supporting Petitioner at 8–9. Mountain States Legal Foundation argues further that even Native American scholars have trouble determining tribal law because much tribal culture has been lost. See Mountain States Legal Foundation Amicus Brief supporting Petitioner at 7–8. With 562 self-governing tribes and 250 tribal courts in the United States, each with their own laws, Mountain States Legal Foundation asserts that tribal law can be very unclear. See id. According to tribal attorney Matthew L.M. Fletcher, while tribal law may be less accessible than American law, it is clear and publicly available. He states that non Native Americans simply do not research tribal law and are often disrespectful to tribal judges. See Commentary on the Plains Commerce Bank Cert Grant, Turtle Talk.

The American Bankers Association claims that companies are reluctant to conduct business with Native Americans or on Native American reservations because they do not understand Native American laws. See Brief for American Bankers Association as Amicus Supporting Petitioner. They claim that a decision upholding trial court jurisdiction will increase this reluctance and cause economic problems for reservations which are already suffering economically. See Brief for American Bankers Association as Amicus Supporting Petitioner at 6, 11–12. Similarly, they state that a decision for Plains Commerce Bank that further limits tribal court jurisdiction over non-members will clarify “the rules of the economic game” and encourage economic growth on and around tribal reservations. See id. at 6, 13. Several U.S. counties in Idaho and Minnesota which contain Native American reservations claim that economic development in reservations is critical. See Brief for Clearwater County et al. as Amicus Supporting Petitioner at 3–4. These counties emphasize the high cost of providing services to Native American reservations and point out that there has been little economic development on reservations in the past 40 years. See id.

Carranza and Broadman claim that “Indian country should be worried” about this case, for tribal courts are an important part of tribal self-governance and any limitation on tribal courts is necessarily a limitation on other self-governance authority, such as regulation. See Plain and Simple: The Supreme Court Could Foreclose Tribal Court Civil Jurisdiction Over Non-Indians. The United Southern and Eastern Tribes president asserts that self-government enables economic development within the tribe and improves the health of tribal members, two problems facing Native American tribes. See USET President Gives White House Briefing on Indian Country, Indian Country Today, March 7, 2008.

Finally, the National Network to End Domestic Violence asserts that a decision limiting tribal court jurisdiction will negatively affect Native American crime victims. See The National Network to End Domestic Violence et al. Amicus Brief supporting Respondents. They point to data indicating that Native American females are victimized two and half times more frequently than non-Native American females, and that over 80% of the attackers were non-Native American. See id. at 4, 5. Currently, tribal courts may order protection for victims and hear personal injury civil cases. See id. at 5–6. However, the National Network to End Domestic Violence claims a decision limiting civil jurisdiction will remove these fundamental protections for Native American women. See id.


At issue is the jurisdictional authority of Indian tribal courts over non-tribal parties that deal commercially with members of a tribe. Plains Commerce Bank argues that its private agreements with the tribal-owned Long Company did not give the Cheyenne River Sioux Tribal Court a jurisdictional basis to adjudicate their dispute. See Brief for Petitioner at 13. The Company responds that since the Bank knowingly signed agreements with a tribal business, it should have known that a tribal court would have jurisdiction if the business relationship went awry. See Brief for Respondent at 23. Both sides agree that the Supreme Court’s decision in Montana v. United States governs the jurisdictional dispute. Id.; Brief for Petitioner at 13.
In Montana, the Supreme Court held that a tribal government generally lacks authority over nonmembers of its tribe. See450 U.S. 544, 565 (1981). The Supreme Court did, however, carve out two exceptions to this rule. Id. Under the first exception, a tribe can regulate—“through taxation, licensing, or other means”—nonmembers who voluntary enter into economic arrangements with tribal members. Id. Under the second exception, a tribe can exercise authority over the conduct of nonmembers who own reservation land when their conduct “threatens or has some direct effect” on the tribe’s well-being. Id. at 566.

In ruling for the Company, both the District Court and the Eighth Circuit Court of Appeals agreed that the first Montana exception gave the tribal court jurisdiction over the Bank. Plains Commerce Bank v. Long Family Land and Cattle, Inc., 491 F.3d 878, 889 (8th Cir. 2007), aff’g 440 F. Supp. 2d 1070, 1081 (D.S.D. 2006). While the courts below did not reach the second Montana exception, the Company insists that the second exception applies as well. Brief for Respondent at 53. The Bank argues that neither exception applies and that the general rule of non-jurisdiction should govern. Brief for Petitioner at 13.

Did the First Montana Exception Confer Jurisdiction on the Tribal Court?

The Company argues that the tribal court had jurisdiction to hear the original lawsuit under the first Montana exception. Brief for Respondent at 24. Focusing on the ideas of “consent” and “regulation by other means,” the Company insists that this case falls under the first Montana exception. See id. at 40, 52. First, the Company explains the voluntary nature of the economic relationship: “[The Bank had] knowledge from the inception that it was dealing with an Indian-owned company.” Id. at 42. The Company also stresses the right of tribal governments to regulate economic activity involving their land and people. See id. at 43. In Morris v. Hitchcock, for example, the Supreme Court upheld a tribal government’s tax on non-tribal ranchers who bought grazing rights from tribal owners of reservation land. 194 U.S. 384, 393 (1904).

The Company reasons that if tribal government can impose monetary taxes on nonmembers who sign contracts with tribal parties, then it can also have its courts impose a standard of fairness on the execution of those contracts. See Brief for Respondent at 43. Finally, the Long Company argues that the Bank could have bargained in advance for a contract clause that would have excluded tribal court as a valid judicial forum. Id. at 42. “[The Bank] elected not to include a single forum-selection . . . clause in any of the commercial agreements,” writes the Company, “[and thus its] surprise in being subject to tribal-court jurisdiction rings especially hollow.” Id.
The Bank argues that the first Montana exception does not apply. Brief for Petitioner at 31.

First, the Bank insists that the Long Company does not really represent a “tribe or its members” under the terms of the exception. Id. The Bank argues that far from being a clear-cut tribal entity, the Company was actually registered as a South Dakota corporation. Id. at 32. In addition, the Bank urges the Supreme Court not to ascribe the tribal membership of the Company’s owners to the Company itself: “[The] agreements at issue are between the Bank and a member-owned South Dakota corporation, a business entity not organized under Indian law, but rather under the law of the State of South Dakota.” Id. at 34.

Even if the Company is a tribal entity, the Bank argues that the consensual agreements did not contemplate the kind of litigation filed with the tribal court. Brief for Petitioner at 34. First, the Bank points out that the language of the first Montana exception does not actually mention adjudication by tribal courts. Id. at 35. After acknowledging that the exception allows for “other means” of regulation, the Bank insists that the type of litigation involved in this case cannot be fairly read into the language of “other means.” Id. The Bank argues that instead of representing a standard contract dispute, this case involved allegations of tortious conduct such as predatory lending. Id. at 36. Because tort allegations do not rest on the language of a private contract, the Bank concludes that the adjudication of a tort cannot be fairly construed as an “other means” of regulating “commercial dealing, contracts, [or] leases.” Id.

Did the Second Montana Exception Confer Jurisdiction on the Tribal Court?

Even if the Supreme Court finds the first Montana exception inapplicable, the Company argues that the second exception gave the tribal court a separate basis of jurisdiction. Brief for Respondent at 53. In Atkinson Trading Co. v. Shirley, the Supreme Court adopted a narrow view of the second exception: “[this] exception grants Indian tribes nothing beyond what is necessary to protect tribal self-government or to control international relations.” 532 U.S. 645, 658-59 (2001) (internal quotations omitted). Nevertheless, the Company argues that some actions by non-tribal owners of reservation land “might be so egregious, so extensive, or so extraordinary as to threaten the very integrity of the tribe’s political system . . . economy . . . and welfare of its members.” Id. at 54. “This case involves predatory and discriminatory lending practices directed at tribal members,” writes the Company, and further argues that the land involved was crucial to the ranching economy of the whole tribe. Id. at 24. Given the importance of ranching to the Cheyenne River Sioux Tribe, the Company concludes that the Bank’s inequitable conduct gave the tribal court an independent basis of jurisdiction. Id. at 55.

The Bank argues that the second Montana exception is too narrow to apply in this case. Brief for Petitioner at 29. According to the Bank, this is not a case where someone’s actions threatened the tribe’s basic right to exist and govern itself. See id. at 30. The Bank draws a sharp distinction between the overall tribe and one private party: “This case principally involved two private actors—a nonmember Bank and a South Dakota corporation.” Id. In addition, the Bank quotes from the Supreme Court’s decision in Nevada v. Hicks: “Self-government and internal relations are not directly at issue. . . . the issue is whether [tribal] law will apply, not to [tribal] members, but to a narrow category of outsiders.” Id. at 31; 492 U.S. 353, 371 (2001). The Bank concludes that where a dispute involves two private actors, state and federal courts provide adequate forums without any special need for tribal courts to get involved for the protection of the tribe. See Brief for Petitioner at 30.

Does the Bank Have Standing to Bring this Appeal?

In addition to arguing that the tribal court had jurisdiction under Montana, the Company argues that the Bank lacks standing to bring this appeal. Brief for Respondent at 25. The U.S. Constitution requires that there exist an actual “case” or “controversy” for a federal court to resolve. U.S. Const. art. III, § 2. The Company interprets this requirement to mean that parties cannot appeal from favorable verdicts. See Brief for Respondent at 34. According to the Company, its award of damages from the tribal court rested on the Bank’s contractual obligations, and not on any tort accusation. Id. at 32. The Bank, meanwhile, repeatedly states that its appeal rests on the tribal court’s adjudication of a “civil tort claim.” See, e.g., Brief for Petitioner at 26.

Thus, the Company concludes that the Bank is attempting to base its appeal on a tort claim even though the tribal court did not actually award any damages on that claim. Brief for Respondent at 22. “The [tribal court] jury awarded . . . $750,000 in damages,” writes the Company, “and the jury specifically found that interest should be added.” Id. at 32. Because the jury was instructed that interest could only be added to contractual compensation awards, the Company insists that none of the damages it actually won in tribal court rested on its tort claims against the Bank. See id. The Company thus urges the Supreme Court to dismiss the Bank’s appeal for lack of standing. See id. at 22. Interestingly, the Company did not seem to raise the argument of standing until the case reached the Supreme Court. See, e.g., Appellees’ Brief to the Eighth Circuit Court of Appeals at 12-13. Given the novelty of this argument, the Bank’s response on the issue might come as late as the oral argument itself.


In Plains Commerce Bank v. Long Family Land & Cattle Co., Inc., the Supreme Court will decide whether Native American tribal courts have jurisdiction over non-tribal members who have entered into an agreement with a company owned by Native Americans. Plains Commerce Bank argues that tribal courts do not have jurisdiction, and that any grievances must be heard in American courts. The Longs claim that tribal courts may hear such cases. The decision in this case will impact tribal self-government, economic development on tribal reservations, and the willingness of business to interact with Native Americans and Native American Reservations.

Prepared by: Allison Condon & Michael Litvin
Edited by: Tim Birnbaum

Additional Sources
Tribal Sovereignty in the United States from Wikipedia
National Indian Law Library
Frequently Asked Questions Concerning American Indians and Alaska Natives from the Department of Health & Human Services
National American Indian Court Judges Association
National Center for State Courts Resources Guide on Tribal Courts

For the full story:

The Supreme Court decision in Oliphant v. Suquamish Indian Tribe ruled that tribes have no criminal jurisdiction over non-Indians. Crimes must reach their felony level before the feds step in. States, many times, don’t get involved with offenses on Indian land, even when the offender is non-Indian. Often times with domestic violence cases like this, there are no criminal charges. All the tribe can do is banish the offender, which involves politics.

Joe Martin won third place for Individual Best Editorial Writing at the 2004 Native Media Awards from the Native American Journalists Association at the 2004 UNITY Journalists of Color convention in Washington. He lives on tribal trust lands in Cherokee County.

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