Supreme Court limits tribal jurisdiction over non-Indians

Law

Thursday, June 26, 2008

The U.S. Supreme Court on Wednesday limited tribal jurisdiction over non-Indians in a 5-4 decision that was split along conservative and liberal lines.

In the eyes of many in Indian Country, Plains Commerce Bank v. Long was a contract dispute between two members of the Cheyenne River Sioux Tribe and a non-Indian bank. Since Plains Commerce Bank in South Dakota voluntarily entered into an agreement with Ron and Lila Long, tribal advocates believed the case would withstand scrutiny.

But Chief Justice John G. Roberts recast the dispute in a way that precluded tribal jurisdiction. Writing for the majority, he said just everything about the case was non-Indian in nature.

"This case concerns the sale of fee land on a tribal reservation by a non-Indian bank to non-Indian individuals," Roberts wrote in his opening.

By noting that the Longs mortgaged fee land to the bank, Roberts was able to rely on Supreme Court precedents that limit tribal jurisdiction over lands that are not held in trust.

"Our cases have made clear that once tribal land is converted into fee simple, the tribe loses plenary jurisdiction over it," Roberts noted.

Roberts, a nominee of President Bush, was joined in the decision by two of the most conservative members on the court -- Justice Antonin Scalia and Justice Clarence Thomas. Justice Samuel Alito, another conservative Bush nominee, gave Roberts four votes.

Justice Anthony M. Kennedy, often considered a swing vote, joined the majority, tipping the decision to the conservative side of the court.

The more liberal justices sided with the Longs in upholding tribal court jurisdiction. In her dissent, Justice Ruth Bader Ginsburg disagreed with the characterization of the case as one over fee land.

"Resolving this case on a ground neither argued nor addressed below, the court holds that a tribe may not impose any regulation -- not even a nondiscrimination requirement -- on a bank's dealings with tribal members regarding on-reservation fee lands," Ginsburg wrote.

But even if the case were about the sale of fee land, Ginsburg said tribal courts are the proper place to resolve a dispute involving a non-Indian bank that voluntarily entered into a business agreement with tribal members. "Sales of land -- and related conduct -- are surely 'activities' within the ordinary sense of the word," she wrote, citing some of the same precedents that Roberts relied on.

Justice John Paul Stevens, Justice David Souter and Justice Stephen G. Breyer, who often side with tribes in Indian law disputes, joined the dissent.

The decision means the Longs are not entitled to a $750,000 jury verdict awarded by a Cheyenne River Sioux court. With interest, the judgment would have to about $870,000.

The case was Alito's first Indian law case since he joined the court in February 2006. He previously served as a judge for the 3rd Circuit Court of Appeals, where there are no federally recognized tribes.

The court's next big Indian law case is Carcieri v. Kempthorne, which challenges the ability of the Interior Department to acquire land for the Narragansett Tribe of Rhode Island.

A date for oral arguments hasn't been set but the case will be heard after the court reconvenes in October 2008.

The Tribal Supreme Court Project, a joint effort of NCAI and the Native American Rights Fund, is keeping track of five other cases that could be heard in the coming term. One is US v. Navajo Nation, a breach of trust case that previously went before the justices during the 2002 term.

Supreme Court Decision:
Syllabus | Opinion [Roberts] | Dissent [Ginsburg]

Relevant Documents:
Oral Argument Transcript | 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)