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Bush brief backs tribal court jurisdiction
Monday, March 24, 2008
Filed Under: Law

The Bush administration is standing up for tribal court jurisdiction in a U.S. Supreme Court case that is drawing a high level of attention.

In a brief filed last week, the Department of Justice heralded tribal courts as playing a "vital role" in tribal self-governance. Citing long-standing federal policy and acts of Congress, government attorneys urged the high court to respect the decisions of tribal judicial systems.

"While their jurisdiction may not be exclusive, a sovereign tribe should be entitled to interpret and enforce its own law in the first instance," Solicitor General Paul D. Clement wrote in the 41-page filing. "Tribal authority over nonmembers on non-Indian land is already limited ... but when those criteria are met, tribal courts should be entitled to consider claims of noncompliance with legitimate tribal requirements."

The brief is just one of several placed before the justices as they prepare for oral arguments. The case, Plains Commerce Bank v. Long, will be heard April 14 and is one of two Indian law cases on the docket this term.

The Cheyenne River Sioux Tribe of South Dakota, where the dispute originated, the National Congress of American Indians, the Navajo Nation and advocates for Native women are joining the administration in supporting tribal court jurisdiction.

But the opposing side -- a non-Indian bank that is challenging a nearly $900,000 tribal court verdict -- is being backed by nine states, four counties, a conservative legal group, the Association of American Railroads and the American Bankers Association.

"The banking lobby is very, very strong," NCAI executive director Jackie Johnson told tribal leaders in Washington, D.C., earlier this month.

The case began when Ronnie and Lila Long, members of the Cheyenne River Sioux Tribe who own a cattle operation on the reservation, filed suit in tribal court against Plains Commerce Bank. The Longs accused the bank of breach of contract and discrimination.

A tribal jury sided with the Longs but the bank went to federal court to challenge the award on the grounds that the tribe lacks jurisdiction over non-Indian entities. A federal judge and the 8th Circuit Court of Appeals, however, rejected the challenge.

Plains Commerce now has one last shot at avoiding tribal jurisdiction. The bank is citing a Supreme Court case from 1981 that limited tribal authority over non-Indians.

But the decision in Montana v. U.S. set out two exceptions to the general rule. The ruling stated:
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 dealing, contracts, leases, or other arrangements. A tribe may also 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.

The 8th Circuit said both conditions were met in the Plains Commerce case. The bank established a consensual relationship with the Longs and the tribe has a sovereign interest in regulating how businesses interact with its members, the court ruled.

Despite the favorable ruling, Indian law practitioners say the Montana exceptions are very hard to meet. "In a series of decisions issued over the last thirty years, the Supreme Court has largely limited the jurisdiction of tribal courts to disputes involving Indians, not outsiders," said Steven J. Gunn, an associate professor of law at Washington University in St. Louis, which has provided legal assistance to the Cheyenne River Sioux Tribe in the case.

But the tide might be turning as more case law develops. The 9th Circuit Court of Appeals in 2006 upheld tribal jurisdiction in a decision that has opened the doors for at least one other tribal plaintiff to pursue claims against a non-Indian entity.

Relevant Documents:
Docket Sheet: No. 07-411 | Briefs on the Merits

Appeals Court Decision:
Plains Commerce Bank v. Long Family Land and Cattle Company (June 26, 2007)

Lower Court Decision:
Plains Commerce Bank v. Long Family Land and Cattle Company (July 18, 2006)

Related Decision:
Smith v. Salish Kootenai College (January 10, 2006)

Related Stories:
Opinion: No tribal jurisdiction over non-Indians (3/3)
Supreme Court agrees to hear tribal jurisdiction case (1/8)
Appeals court upholds tribal verdict in bank loan case (6/28)
9th Circuit vacates tribal jurisdiction ruling (2/2)
Court subjects non-Indian bank to tribal laws (7/20)
Appeals court upholds tribal jurisdiction after rehearing (01/11)

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