Wednesday, June 25, 2008


This case could very well indicate how a Freedmen Case would fair in the Supreme Court, although the 1866 Treaty and subsequent Congressional modifications are not addressed in this case:

certiorari to the united states court of appeals for the eighth circuit
No. 07–411. Argued April 14, 2008—Decided June 25, 2008

(relevant portions of the case to this discussion are included here, for the full opinion:

This case has a clear discussion of Tribal Jurisdiction. The lower court opinion was reversed by the Supreme Court.

"The “fighting issue” in the tribal trial court, the Eighth Circuit underscored, “was whether the bank denied the Longs favorable terms on a deal solely on the basis of their race or tribal affiliation.” 491 F. 3d, at 891. The Longs maintained that the Bank initially offered them more favorable terms, proposing to sell the mortgaged land back to them with a 20-year contract for deed. Thereafter, the Bank sent a letter to Ronnie Long withdrawing its initial offer, “citing ‘possible jurisdictional problems’ posed by the Long Company’s status as an ‘Indian owned entity on the reservation.’ ” Id., at 882 (quoting Letter from Charles Simon, Vice President, Bank of Hoven, to Ronnie Long (Apr. 26, 1996), App. 91). In the final agreement, the Bank promised no long-term financing; instead, it gave the Longs only a two-year lease with an option to purchase that required a large balloon payment within 60 days of the lease’s expiration. When the Longs were unable to make the required payment within the specified deadline, the Bank sold the land to nonmembers on more favorable terms." (after so many years of dealing with this family, although the court cites defaults by the parties, one wonders why, with a BIA loan guarantee program the Bank would only agree to a *purchase that required a large balloon payment within 60 days"? In light of the fact that the Longs had suffered some business set backs with the loss of 500 head of cattle in a SD blizzard, certainly not within their control)

"In their complaint, the Longs alleged that the Bank allowed the non-Indians “ten years to pay for the land, but the bank would not permit [the] Longs even 60 days to pay for their land,” and that “[s]uch unfair discrimination by the bank prevented the Longs and the [Long] Company from buying back their land from the bank.” App. 173. Although the allegations about the Bank’s contracts to sell to nonmembers were central to the Longs’ lawsuit, those transactions with third parties were not the wrong about which the Longs complained. Rather, as the tribal trial court observed, the contracts with nonmembers simply supplied “evidence that the Bank denied the Longs the privilege of contracting for a deed because of their status as tribal members.” App. to Pet. for Cert. A–78 to A–79 (emphasis added)."

Tellingly, the Bank’s principal jurisdictional argument below bore no relationship to the position the Court embraces. The Bank recognized that the Longs were indeed complaining about discriminatory conduct of a familiar sort. Cf. Jones v. Alfred H. Mayer Co., 392 U. S. 409, 413 (1968) ( 42 U. S. C. §1982 “bars all racial discrimination … in the sale or rental of property”). In Hicks, 533 U. S. 353 , this Court held that tribal courts could not exercise jurisdiction over a claim arising under federal law, in that case, 42 U. S. C. §1983. Relying on Hicks, the Bank insisted that the Longs’ discrimination claim could not be heard in tribal court because it arose under well-known federal antidiscrimination law, specifically, 42 U. S. C. §1981 or §2000d. 491 F. 3d, at 882–883. The Tribal Court of Appeals, however, held that the claim arose under Lakota common law, which resembled federal and state antidiscrimination measures. See App. to Pet. for Cert. A–54 to A–55, and n. 5.3

This appears to indicate that this type of action would be better brought in the Federal Courts, although there is no indication the outcome would be any different.

"Such regulation is outside the scope of a tribe’s sovereign authority. Justice Ginsburg asserts that if “[t]he Federal Government and every State, county, and municipality can make nondiscrimination the law governing . . . real property transactions,” tribes should be able to do so as well. Post, at 8. This argument completely overlooks the very reason cases like Montana and this one arise: Tribal jurisdiction, unlike the jurisdiction of the other governmental entities cited by Justice Ginsburg, generally does not extend to nonmembers. See Montana, supra, at 565. The sovereign authority of Indian tribes is limited in ways state and federal authority is not. Contrary to Justice Ginsburg’s suggestion, that bedrock principle does not vary depending on the desirability of a particular regulation."

Although this discussion pertains to Tribal Jurisdiction - it would seem that a discrimination suit in State or Federal Courts would not be precluded - although few Indians believe they will fair well within those jurisdictions and thus often prefer to seek redress in Tribal Courts.

"But again, whether or not we have permitted regulation of nonmember activity on non-Indian fee land in a given case, in no case have we found that Montana authorized a tribe to regulate the sale of such land. Rather, our Montana cases have always concerned nonmember conduct on the land. See, e.g., Hicks, 533 U. S.,at 359 (Montana and Strate concern “tribal authority to regulate nonmembers’ activities on [fee] land” (emphasis added)); Atkinson, 532 U. S., at 647 (“conduct of nonmembers on non-Indian fee land”); id., at 660 (Souter, J., concurring) (“the activities of nonmembers); Bourland, 508 U. S., at 689 (“use of the land”); Brendale, supra, at 430 (“use of fee land”); Montana, supra, at 565 (first exception covers “activities of nonmembers”).1 "

"This general rule restricts tribal authority over nonmember activities taking place on the reservation, and is particularly strong when the nonmember’s activity occurs on land owned in fee simple by non-Indians—what we have called “non-Indian fee land.” Strate v. A–1 Contractors, 520 U. S. 438, 446 (1997) (internal quotation marks omitted). Thanks to the Indian General Allotment Act of 1887, 24 Stat. 388, as amended, 25 U. S. C. §331 et seq., there are millions of acres of non-Indian fee land located within the contiguous borders of Indian tribes. See Atkinson Trading Co. v. Shirley, 532 U. S. 645 , n. 1 (2001). The history of the General Allotment Act and its successor statutes has been well rehearsed in our precedents. See, e.g., Montana, supra, at 558–563; County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251, 254–255 (1992) . Suffice it to say here that the effect of the Act was to convert millions of acres of formerly tribal land into fee simple parcels, “fully alienable,” id., at 264, and “free of all charge or encumbrance whatsoever,” 25 U. S. C. §348 (2000 ed., Supp. V). See F. Cohen, Handbook of Federal Indian Law §16.03[2][b], pp. 1041–1042 (2005 ed.) (hereinafter Cohen)."

"Our cases have made clear that once tribal land is converted into fee simple, the tribe loses plenary jurisdiction over it. See County of Yakima, supra, at 267–268 (General Allotment Act permits Yakima County to impose ad valorem tax on fee land located within the reservation); Goudy v. Meath, 203 U. S. 146, 140–150 (1906) (by rendering allotted lands alienable, General Allotment Act exposed them to state assessment and forced sale for taxes); In re Heff, 197 U. S. 488, 502–503 (1905) (fee land subject to plenary state jurisdiction upon issuance of trust patent (superseded by the Burke Act, 34 Stat. 182, 25 U. S. C. §349) (2000 ed.)). Among the powers lost is the authority to prevent the land’s sale, see County of Yakima, supra, at 263 (General Allotment Act granted fee holders power of voluntary sale)—not surprisingly, as “free alienability” by the holder is a core attribute of the fee simple, C. Moynihan, Introduction to Law of Real Property §3, p. 32 (2d ed. 1988). Moreover, when the tribe or tribal members convey a parcel of fee land “to non-Indians, [the tribe] loses any former right of absolute and exclusive use and occupation of the conveyed lands.” South Dakota v. Bourland, 508 U. S. 679, 689 (1993) (emphasis added). This necessarily entails the “the loss of regulatory jurisdiction over the use of the land by others.” Ibid. As a general rule, then, “the tribe has no authority itself, by way of tribal ordinance or actions in the tribal courts, to regulate the use of fee land.” Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 430 (1989) (opinion of White, J.)."

"The sale of formerly Indian-owned fee land to a third party is quite possibly disappointing to the tribe, but cannot fairly be called “catastrophic” for tribal self-government. See Strate, 520 U. S., at 459. The land in question here has been owned by a non-Indian party for at least 50 years, Brief for Respondents 4, during which time the project of tribal self-government has proceeded without interruption. The land’s resale to another non-Indian hardly “imperil[s] the subsistence or welfare of the tribe.” Montana, supra, at 566. Accordingly, we hold the second Montana exception inapplicable in this case."

*Disappointing*? Ah well, I'll let that one go. It is a well established principle in English land law, that fee simple land is alienable by the owner without restrictions, although there are some exceptions that have been carved out relating to condos and homeowner associations. See Debow, *And Still The Waters Run*, The Betrayal of the Five Civilizes Tribes, on the allotment process and how it was abused and used to defraud Indians out of their allotments.

"Even the courts below recognized that the Longs’ discrimination claim was a “novel” one. 491 F. 3d, at 892. It arose “directly from Lakota tradition as embedded in Cheyenne River Sioux tradition and custom,” including the Lakota “sense of justice, fair play and decency to others.” 440 F. Supp. 2d, at 1082 (internal quotation marks omitted). The upshot was to require the Bank to offer the same terms of sale to a prospective buyer who had defaulted in several previous transactions with the Bank as it offered to a different buyer without such a history of default. This is surely not a typical regulation. But whatever the Bank anticipated, whatever “consensual relationship” may have been established through the Bank’s dealing with the Longs, the jurisdictional consequences of that relationship cannot extend to the Bank’s subsequent sale of its fee land."

This is how the two cultures clash.

Not only is regulation of fee land sale beyond the tribe’s sovereign powers, it runs the risk of subjecting nonmembers to tribal regulatory authority without commensurate consent. Tribal sovereignty, it should be remembered, is “a sovereignty outside the basic structure of the Constitution.” United States v. Lara, 541 U. S. 193, 212 (2004) (Kennedy, J., concurring in judgment). The Bill of Rights does not apply to Indian tribes. See Talton v. Mayes, 163 U. S. 376, 382–385 (1896) (emphasis added) (this would eliminate the Freedmen's 13th Amendment Claim) . Indian courts “differ from traditional American courts in a number of significant respects.” Hicks, 533 U. S., at 383 (Souter, J., concurring). And nonmembers have no part in tribal government—they have no say in the laws and regulations that govern tribal territory. Consequently, those laws and regulations may be fairly imposed on nonmembers only if the nonmember has consented, either expressly or by his actions. Even then, the regulation must stem from the tribe’s inherent sovereign authority to set conditions on entry, preserve tribal self-government, or control internal relations. See Montana, 450 U. S., at 564.

This is where in contract arrangements, the jurisdiction would be better settled in writing by the parties involved in the agreement - of course the Bank carries all the weight, if you don't agree to their terms they don't make the loan - but it does not appear, even though the Bank was fee owner of the land, that they have dealt in a non discriminatory manner with the Longs - at least a $750,000.00 balloon payment within 60 days after a business set back of loosing 500 cows. At the least that appears to be unreasonable and unconscionable.