Plains Commerce Bank v. Long Family Land and Cattle Co. - Amicus (Merits)

Docket number: 
No. 07-411
Supreme Court Term: 
2007 Term
Court Level: 
Supreme Court

No. 07-411

 

In the Supreme Court of the United States

PLAINS COMMERCE BANK, PETITIONER

v.

LONG FAMILY LAND AND
CATTLE COMPANY, INC., ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS

PAUL D. CLEMENT
Solicitor General
Counsel of Record
RONALD J. TENPAS
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
CURTIS E. GANNON
Assistant to the Solicitor
General
DAVID C. SHILTON
WILLIAM B. LAZARUS
AMBER B. BLAHA
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether Indian tribal courts have subject-matter jurisdiction to adjudicate civil tort claims arising out of private commercial agreements between a nonmember bank owning fee land on a reservation and a member- owned corporation.

In the Supreme Court of the United States

No. 07-411

PLAINS COMMERCE BANK, PETITIONER

v.

LONG FAMILY LAND AND
CATTLE COMPANY, INC., ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

This Court has "repeatedly recognized the Federal Government's longstanding policy of encouraging tribal self-government" through means including the "develop ment" of "[t]ribal courts." Iowa Mut. Ins. Co. v. La Plante, 480 U.S. 9, 14-15 (1987). Finding that "tribal justice systems are an essential part of tribal govern ments," 25 U.S.C. 3601(5), Congress provided federal support for tribal courts in the Indian Tribal Justice Act, 25 U.S.C. 3601 et seq. The United States has con sistently participated as amicus curiae in cases implicat ing tribal courts' authority. See, e.g., Nevada v. Hicks, 533 U.S. 353 (2001); Strate v. A-1 Contractors, 520 U.S. 438 (1997); Duro v. Reina, 495 U.S. 676 (1990). The United States also has a substantial interest in this case by virtue of its role, under the Indian Financing Act of 1974, 25 U.S.C. 1451 et seq., as guarantor of loans that underlie the dispute.

STATEMENT

1. "Tribal courts play a vital role in tribal self-government, and the Federal Government has consistently encouraged their development." Iowa Mut., 480 U.S. at 14-15 (citation omitted). The Indian Civil Rights Act of 1968, 25 U.S.C. 1301 et seq., "manifest[s] a congressional purpose to protect tribal sovereignty from undue inter ference," Santa Clara Pueblo v. Martinez, 436 U.S. 49, 63 (1978). More recently, in the Indian Tribal Justice Technical and Legal Assistance Act of 2000, 25 U.S.C. 3651 et seq., Congress reiterated that "tribal justice sys tems are an essential part of tribal governments" and that "Congress and the Federal courts have repeatedly recognized tribal justice systems as the most appropri ate forums for the adjudication of disputes affecting per sonal and property rights on Native lands." 25 U.S.C. 3651(5) and (6); see also Santa Clara Pueblo, 436 U.S. at 65. To support the development of tribal courts, Con gress has established special federal programs in the Department of the Interior and the Department of Jus tice. See 25 U.S.C. 3611, 3661, 3662, 3681; see also Bu reau of Justice Assistance, U.S. Dep't of Justice, Fact Sheet: Tribal Courts Assistance Program 1-2, 4 (Winter 2007) <http://www.ojp.usdoj.gov/BJA/grant/TCAP_ Fact_Sheet.pdf> (describing Tribal Courts Assistance Program and identifying recent grant recipients, includ ing the Cheyenne River Sioux Tribe).

In part because of such initiatives, the number of tribal courts and the number of cases on their dockets have increased sharply, and there have been significant advances in the professional qualifications of tribal jud ges and lawyers.1

Congress has recognized tribal courts' jurisdiction to adjudicate important questions of federal law. See, e.g., Santa Clara Pueblo, supra (recognizing authority to enforce Indian Civil Rights Act); 25 U.S.C. 1911(a) (au thorizing exclusive jurisdiction over disputes under the Indian Child Welfare Act); 12 U.S.C. 1715z-13(g)(5) (au thorizing federal government to bring mortgage-foreclo sure actions against reservation homeowners in tribal or federal court). And, although federal law requires full faith and credit for tribal-court judgments only in cer tain areas,2 some States generally afford full faith and credit,3 and others routinely enforce tribal-court judg ments under principles of comity.4

2. This case arises from a series of commercial con tracts between petitioner (a South Dakota banking cor poration), respondents Ronnie and Lila Long (both en rolled members of the Cheyenne River Sioux Tribe (CRST or Tribe)), and respondent Long Family Land and Cattle Company (the Company), a closely held fam ily farming and ranching business incorporated under the laws of South Dakota in 1987. J.A. 14-17, 159. In accordance with its articles of incorporation, J.A. 17, at least 51% of the Company's outstanding shares have at all times been Indian-owned in order to qualify for fed eral loan guarantees. Pet. App. A2.

The Company operated its cattle ranch solely within the boundaries of the CRST Reservation. Pet. App. A2. Its operations were located on 6400 acres of tribal trust land that were leased for grazing, Resp. Br. 4-5, and on 2230 acres of land that were jointly owned by Kenneth and Maxine Long (the parents of respondent Ronnie Long), and then, after tribal member Maxine Long's death in 1992, solely by Kenneth Long (a nonmember), J.A. 159-160.

Beginning in 1989, petitioner made a series of com mercial loans to the Company. Pet. App. A45. As part of the loan agreements, Kenneth and Maxine Long used their home and the 2230 acres of land as collateral, peti tioner received a security interest in the Company's live stock and equipment, and Kenneth, Maxine, Lila, and Ronnie Long each personally guaranteed loans extended to the Company. J.A. 21-38, 42-45.

Petitioner's loans to the Company were also repeat edly guaranteed by the U.S. Department of the Inte rior's Bureau of Indian Affairs (BIA). J.A. 39-40, 70-72, 77-85; Pet. App. A2-A3. Under the Indian Financing Act, Congress has authorized federal "guarantee[s]" of up to 90% of "the unpaid principal and interest due on any loan made to any organization of Indians" or "to individual Indians," "[i]n order to provide access to pri vate money sources which otherwise would not be avail able." 25 U.S.C. 1481. The BIA will thus guarantee a loan made to an "Indian-owned * * * business activity" organized "pursuant to state, federal or tribal law," as long as "Indian ownership" is at least 51%. 25 C.F.R. 103.1, 103.7 (1996).5 The loans to be guaranteed are "for financing economic enterprises which contribute benefi cially to the economy of an Indian reservation." 25 C.F.R. 103.2 (1996). Kenneth Long died in July 1995, and petitioner filed a claim of almost $700,000 against his estate. J.A. 160; Pet. Br. 5; Resp. Br. 6-7. Respondents argue that his land and interest in the Company were inherited by his children, who assigned their interests to Ronnie Long. J.A. 160; Resp. Br. 6-7. Petitioner asserts that its claim against the estate prevented the distribution of assets to Kenneth Long's heirs. Pet. App. A2 & n.2; Pet. Br. 7.

2. In the spring of 1996, petitioner's representatives came onto the Reservation to inspect the Company's op erations and assets. Pet. App. A3. Petitioner and res pondents began discussing revised loan terms. Ibid. Some of their negotiations took place at the Tribe's of fices and were facilitated by tribal officers and BIA em ployees. Ibid. Respondents claim that petitioner of fered to make operating loans to the Company, provided that Kenneth Long's land and house were deeded to pe titioner, which would then sell the land back to the Com pany on a 20 year contract for deed. J.A. 91; Pet. App. A3. Petitioner later changed the terms of the offer, stat ing that on the advice of counsel, it would not sell the land under a contract because of "possible jurisdictional problems if [petitioner] ever had to foreclose on [the] land when it is contracted or leased to an Indian owned entity on the reservation." J.A. 91; Pet. App. A3.

On December 5, 1996, petitioner and the Company entered into two agreements during a meeting at peti tioner's offices, located off the Reservation. J.A. 96-106. The parties entered into a new loan agreement, which stated that petitioner had received a deed for Kenneth Long's land from his estate. J.A. 104. The agreement credited $478,000 for the land and house against the outstanding loan balance. J.A. 104. Petitioner agreed to request BIA loan guarantees for an additional $70,000 operating loan and a $37,500 loan to purchase new calves. J.A. 105. In a second agreement, the Company received a two-year lease of the land, with an option to purchase the land at the end of the lease for $468,000. J.A. 96-100. The estate deeded the 2230 acres to peti tioner on December 10, 1996. J.A. 113-115.

Respondents later alleged that petitioner did not make loans required by the agreement, J.A. 164-165, while petitioner claimed that it did make at least some of the loans, and that the loans were contingent upon BIA loan guarantees, which were not provided.6 Pet. App. A28. Without the money, the Company could not move feed to its livestock on the grazing land, and hun dreds of them died during the harsh winter of 1996-1997. J.A. 165. The Company was thus unable to exercise its option to repurchase the land when the lease expired. J.A. 167. Petitioner later submitted a claim on the fed eral loan guarantees and received $392,968.55 from the BIA.7 Pet. App. A35.

On May 19, 1999, petitioner initiated proceedings in state court to evict respondents from the 2230-acre par cel and asked the tribal court to serve them with a notice to quit. J.A. 144-147. Petitioner then contracted to sell the land to non-Indians, but respondents continued to occupy 960 acres. J.A. 141; Pet. App. A4.

3. a. In July 1999, respondents filed suit against petitioner in the Cheyenne River Sioux Tribal Court, seeking an injunction to prevent their eviction from the ranch land and its sale by petitioner. J.A. 1. Filing an amended complaint in January 2000, they asserted a variety of claims, including breach of contract, bad faith, violation of tribal-law self-help remedies, and discrimi nation. J.A. 158, 163-174. The discrimination claim- the only claim still at issue-alleged that petitioner had sold the land to nonmembers on more favorable terms than those it had offered to respondents. J.A. 172-173.

Petitioner's answer included a general statement that the tribal court lacked subject-matter jurisdiction, and a claim that the court lacked jurisdiction over peti tioner because its main place of business was outside the boundaries of the Reservation. J.A. 181. Petitioner also stated a counterclaim, "in the event the Court finds that it does have jurisdiction," alleging that respondents were in wrongful possession of the 960 acres of land and seeking their eviction. J.A. 184-185.

Before trial, petitioner unsuccessfully moved for summary judgment on its counterclaim, pursuant to Rule 56 of the Rules of Civil Procedure, in which it stated that the tribal court had jurisdiction over respon dents because "the majority ownership of the corpora tion is owned by Ronnie Long and Lila Long, enrolled members of the Cheyenne River Sioux Tribe." J.A. 187- 188. Petitioner also conceded in that motion that "the Court has jurisdiction over the subject matter of this action," without repeating or adverting to the jurisdic tional objection that had appeared in its answer. J.A. 188.

The judge submitted four of respondents' causes of action to the jury: breach of contract, bad faith, discrim ination, and violation of tribal-law self-help remedies. J.A. 190-192; Pet. App. A5. As submitted, the discrimi nation claim was only by Ronnie and Lila Long, not the Company. J.A. 191. Shortly before the jury was charged, petitioner argued that the court lacked juris diction over the discrimination claim because it arose under federal law. Pet. App. A5. The court rejected that argument. Ibid.

The jury found in respondents' favor on three of the four causes of action-breach of contract, bad faith, and discrimination-and awarded damages of $750,000 plus interest. Pet. App. A73; J.A. 190-192. It found, how ever, that petitioner had not engaged in impermissible self-help by selling the land. J.A. 191.

Petitioner filed a post-trial motion for judgment not withstanding the verdict, in which it renewed its chal lenge to the court's jurisdiction over the discrimination claim (but not the other claims). Pet. App. A79-A80. The tribal court denied the motion, finding that it had jurisdiction over a discrimination claim brought under federal law. Id. at A80-A81.

The tribal court entered judgment awarding respon dents $750,000 plus interest. J.A. 194-196. The Com pany then filed a "request to exercise its option to pur chase all of the land conveyed * * * from the estate of Kenneth Long to [petitioner], including the land" that had been purchased by nonmembers. Pet. App. A69. The tribal court issued a supplemental judgment finding that respondents maintained an option to purchase only the 960-acre parcel they still occupied, and not the lands that petitioner had already sold. Id. at A70. The court also ordered that the price for exercising the option could be offset against the damages award if petitioner filed a quitclaim deed. Id. at A71.

b. Petitioner appealed to the Cheyenne River Sioux Tribal Court of Appeals, raising six non-jurisdictional issues and repeating its challenge to tribal-court juris diction over the discrimination cause of action. Pet. App. A49-A50 (listing issues); see also id. at A51 (noting that petitioner "does not challenge (on appeal) the gen eral jurisdiction of the Cheyenne River Sioux Tribal Court over the lawsuit"). The Tribal Court of Appeals affirmed the trial court on all issues. Id. at A68.

In rejecting petitioner's jurisdictional challenge, the court first held that respondents' discrimination claim did not arise under federal law, but rather arose under the traditional common law of the Tribe, which-in what the court called a "direct and laudable convergence of federal, state, and tribal concern"-prohibits discrimi nation on the basis of race or tribal affiliation. Pet. App. A55-A56.

The court then analyzed tribal-court jurisdiction under the standards in Montana v. United States, 450 U.S. 544 (1981). Pet. App. A56-A57. It noted Montana's gen eral rule that "tribal courts generally do not have juris diction over non-Indians involving matters that arise on fee land within the reservation." Id. at A56. But it held jurisdiction over petitioner was appropriate in this case under both of the exceptions to that general rule. With regard to Montana's first exception, the court found the case to be "the prototype for a consensual agreement," because it involves a contract between "a tribal member and a non-Indian bank" that dealt solely with ranching operations located on the Reservation and was negoti ated in part on the Reservation, with the personal in volvement of tribal officials and BIA personnel. Id. at A56-A57. With regard to the second Montana excep tion, the court found that the case "clearly involves the 'economic security' of the Tribe," as evidenced by the "large role" that tribal officials played in the dealings between petitioner and respondents in order to foster the success of a members' "ranching operation on the Reservation." Id. at A57.

4. a. Petitioner then filed this action in the District Court for the District of South Dakota seeking a declar atory judgment that, inter alia, the tribal courts had lacked subject-matter jurisdiction over respondents' discrimination claim (but not their claims for breach of contract or bad faith). Pet. App. A24, A33. The district court granted summary judgment in favor of respon dents. Id. at A24-A44.

Applying the first Montana exception, the district court considered whether petitioner had entered into a contractual agreement with the Tribe or its members. Pet. App. A34-A40. The court concluded that petitioner had entered into a loan agreement with respondent Long Company with "tribal membership in mind," and that the loans likely would not have been possible but for the BIA guarantees that were available only because the Company is a majority-owned Indian business. Id. at A35. The district court considered it important that the case "involves a non-member's direct contractual in volvement with a Native American owned corporate en tity and concerns land located wholly within the bound aries of the CRST reservation." Id. at A35-A36. The court also found that the "claimed tortious conduct of [petitioner] has a clear nexus with the contractual deal ings between [petitioner] and the Long Company," and that in such circumstances, tort law is an appropriate means of tribal regulation under Montana. Id. at A36- A38. Finally, the district court noted that petitioner had conceded the jurisdiction of the tribal court in briefing its counterclaim that respondents were wrongfully hold ing over on the 960-acre parcel. Id. at A39.

b. The court of appeals affirmed. Pet. App. A1-A23. It concluded that petitioner had "engaged in the kind of consensual relationship contemplated by Montana" when it "transacted with a corporation of conspicuous tribal character" and "formed concrete commercial rela tionships with the Indian owners of that corporation." Id. at A12. It also found that there was a sufficient "nexus" between the tribal regulation and "the consen sual relationship," because the Tribe had subjected peti tioner to "liability for violating tribal antidiscrimination law in the course of its business dealings with [respon dents]." Id. at A12, A14.8

The court rejected petitioner's argument that respon dents' discrimination claim was beyond tribal-court ju risdiction because it was actually a federal-law claim,9 as well as the argument that petitioner was denied due pro cess in the tribal court. Pet. App. A15-A23. Petitioner "explicitly" excluded those arguments from its petition for a writ of certiorari. Pet. i n.1.

SUMMARY OF ARGUMENT

I. A. In Montana v. United States, 450 U.S. 544 (1981), this Court recognized that there are exceptions to the general proposition that a Tribe's "inherent sover eign powers * * * do not extend to the activities of nonmembers of the tribe." Id. at 565. In particular, it recognized that "[a] tribe may regulate, through taxa tion, licensing, or other means, the activities of nonmem bers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements." Ibid. That frame work-including the exception for consensual relation ships-governs a tribal court's jurisdiction over non members. See Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997).

B. Petitioner claims that the Montana exceptions can never apply in cases involving non-Indians and non- Indian fee land. That contention, however, is inconsis tent with Montana's own language and with later deci sions that evaluated the availability of jurisdiction under the exceptions even when the conduct in question in volved non-Indian fee land. See, e.g., South Dakota v. Bourland, 508 U.S. 679, 695-696 (1993); Strate, 520 U.S. at 451-453.

C. The Montana exceptions logically include tribal authority to regulate through adjudication in tribal courts, including through the enforcement of common- law tort rules of conduct and liability. That conclusion is supported by this Court's decisions, which have con sistently treated Montana's acknowledgment of tribal authority as encompassing adjudicatory jurisdiction. See Strate, 520 U.S. at 451-453; Nevada v. Hicks, 533 U.S. 353, 359 n.3, 372 (2001); Atkinson Trading Co. v. Shirley, 532 U.S. 645, 654-656 (2001). It is also bolstered by policy considerations, since limiting tribal-court ju risdiction over matters within Tribes' regulatory author ity would greatly impinge upon their powers of self-gov ernment.

II. Petitioner engaged in a series of private commer cial transactions with respondents. In light of the par ties' course of dealing, petitioner was subject to tribal jurisdiction over disputes arising out of those transac tions. The course of dealing was indispensably predi cated on respondents' Indian status, which made it pos sible for the federal government to guarantee the loans under the Indian Financing Act-and ultimately to com pensate petitioner for a sizable portion of respondents' default. The subject-matter of the negotiations involved a single ranching operation on both tribal and private land within the CRST Reservation; some of the negotia tions directly involved tribal officials; and the same course of dealing spawned closely related contract claims that were adjudicated in tribal court without ob jection from petitioner.

For Montana purposes, a member-owned corpora tion should be treated as a tribal member-especially when the corporation is (as here) closely held, doing business on the reservation, and imbued with an Indian identity by virtue of a federal program that is a neces sary part of the underlying commercial dealings.

Nor should the Court impose a heightened standard for establishing a nonmember's consent to tribal juris diction. It would be inconsistent with federal policy sup porting tribal self-determination to create an equiva lence between the level of consent necessary for private individuals to be sued in tribal court and the standard for waiver of a Tribe's immunity to suit in state courts.

ARGUMENT

THE TRIBAL COURTS HAD JURISDICTION OVER RESPON DENTS' DISCRIMINATION CLAIM BECAUSE IT AROSE DIRECTLY OUT OF PETITIONER'S CONSENSUAL CON TRACTUAL DEALINGS WITH TRIBAL MEMBERS AND A MEMBER-OWNED COMPANY

Indian Tribes possess "inherent powers of a limited sovereignty which has never been extinguished." Uni ted States v. Wheeler, 435 U.S. 313, 322 (1978) (emphasis and internal quotation marks omitted). Tribal authority includes "those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of [tribes'] dependent status." Id. at 323. In Montana v. United States, 450 U.S. 544, 565 (1981), the Court ex plained that Tribes retain inherent power to "regulate * * * the activities of nonmembers who enter consen sual relationships" with Tribes or their members, "through commercial dealing, contracts, leases, or other arrangements." Petitioner's categorical attacks on the availability of such jurisdiction are inconsistent with Montana itself, with this Court's subsequent application of Montana, and with the principles on which it is based. This case falls comfortably within Montana's terms be cause petitioner's consensual dealings with respondents were overwhelmingly tribal in character.10

I. Montana v. United States Provides The Proper Framework For Evaluating Tribal-Court Jurisdiction

A. Montana Generally Governs Tribal-Court Jurisdiction Over Nonmembers

"Tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sover eignty." Strate v. A-1 Contractors, 520 U.S. 438, 451 (1997) (quoting Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987)). Accordingly, tribal courts are an "appro priate forum[]"-sometimes the exclusive forum-for the adjudication of "disputes affecting important per sonal and property interests of both Indians and non-Indians." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65 (1978) (emphasis added). This Court has rejected attacks on the institutional competency of tribal courts as contrary to its own precedents, id. at 65-66, and to "congressional policy," Iowa Mut., 480 U.S. at 19.

The Court has upheld tribal courts' exercise of civil adjudicatory jurisdiction in various contexts affecting non-Indians. See, e.g., Williams v. Lee, 358 U.S. 217, 223 (1959) (tribal court has exclusive jurisdiction to adjudi cate on-reservation contract dispute brought by non- Indian against Indian; "[i]t is immaterial that respon dent is not an Indian," because "[h]e was on the Reser vation and the transaction with an Indian took place there"); Santa Clara Pueblo, 436 U.S. at 65-66 (tribal courts have jurisdiction to vindicate rights created by the Indian Civil Rights Act); Kennerly v. District Ct., 400 U.S. 423 (1971) (per curiam).

The Court has also articulated a prudential rule that, in deference to "tribal self-government and self-determi nation," federal courts should generally refrain from considering challenges to a tribal court's exercise of ju risdiction over a case until the challenge has been con sidered by the tribal court itself. See Iowa Mut., 480 U.S. at 15; National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985). Both of those cas es arose out of suits in tribal court against non-Indian defendants based on their conduct within a reservation, and Iowa Mutual recognized that such suits are "pre sumptively" within a tribal court's jurisdiction, "unless affirmatively limited by a specific treaty provision or federal statute." 480 U.S. at 18. Those decisions thus presuppose that tribal courts may exercise jurisdiction over suits against non-Indian defendants in appropriate circumstances.

The circumstances that are appropriate for the exer cise of that jurisdiction are in turn governed by Mon tana, which for more than 25 years has supplied the framework for evaluating tribal civil authority over non members for a variety of purposes. The Court has de scribed Montana as "pathmarking," Strate, 520 U.S. at 445, and as "the most exhaustively reasoned of [the Court's] modern cases addressing" Tribes' "retained or inherent sovereignty." Atkinson Trading Co. v. Shirley, 532 U.S. 645, 650 (2001); see also Nevada v. Hicks, 533 U.S. 353, 358 (2001) ("Indian tribes' regulatory authority over nonmembers is governed by the principles set forth in Montana.").

In Montana, the Court explained that, "through their original incorporation into the United States as well as through specific treaties and statutes," Indian Tribes have been "implicit[ly] divest[ed]" of sovereignty over "relations between an Indian tribe and nonmem bers of the tribe." 450 U.S. at 564 (internal quotation marks and emphasis omitted). The Montana Court thus articulated the "general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." Id. at 565. Nev ertheless, Montana also recognized that there are two exceptions to that general proposition:

To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non- Indian fee lands. A tribe may regulate, through tax ation, licensing, or other means, the activities of non members who enter consensual relationships with the tribe or its members, through commercial deal ing, 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 wel fare of the tribe.

Id. at 565-566 (citations omitted).

In Strate, the Court held that Montana governed its analysis of whether a tribal court had jurisdiction over a car accident between two nonmembers on a state high way that ran through an Indian reservation. Strate con cluded that, in the absence of "congressional direction enlarging tribal-court jurisdiction," Montana's "main rule and exceptions" apply not only to Tribes' general regulatory authority but also to the "adjudicative juris diction" of tribal courts. 520 U.S. at 453; see also Atkin son Trading Co., 532 U.S. at 652; Hicks, 533 U.S. at 359 n.3, 360-361.

Accordingly, Montana's general proposition and its two exceptions provide the proper framework for deter mining the extent of tribal jurisdiction in this case.

B. The Confluence Of A Nonmember And Non-Indian Fee Land Does Not Categorically Foreclose The Applicabil ity Of Montana's Exceptions

Notwithstanding Montana's well-entrenched frame work, petitioner argues (Br. 21) that there is simply no need to "determine whether either [Montana] exception applies" in this case, "because the land at issue is non- Indian-owned fee land." Thus petitioner contends (Br. 25) that the identity of the landowner "alone precludes tribal-court" jurisdiction. Petitioner's broad attack on tribal jurisdiction is squarely refuted by Montana and the cases that have applied it.

Petitioner's categorical assertion that activities per taining to non-Indian fee land cannot be subject to tribal jurisdiction ignores the plain language of Montana it self. The very purpose of the Montana exceptions was to identify when Tribes may exercise "civil jurisdiction over non-Indians on their reservations, even on non-In dian fee lands." 450 U.S. at 565 (emphasis added).11

Petitioner's contention also ignores the Court's sub sequent decision in National Farmers Union, which involved a tort suit by a tribal member against a school district (a political subdivision of the State) arising out of a motorcycle accident on state land within the Crow Reservation. See 471 U.S. at 847. The Court declined to find that tribal-court jurisdiction in such a case is "auto matically foreclosed," id. at 855, and instead held that the tribal court should be given the opportunity to deter mine its own jurisdiction in the first instance. If peti tioner's categorical rule were correct, jurisdiction would have been "automatically foreclosed," and tribal-court exhaustion would have been futile.

Petitioner's argument is further belied by the pri mary case on which it relies, South Dakota v. Bourland, 508 U.S. 679 (1993). Although petitioner contends (Br. 23) that "Bourland controls here" and that it establishes a rule divesting Tribes of all jurisdiction over nonmem ber-owned land within a reservation, that assertion is simply wrong. In Bourland, the Court held that certain statutes had abrogated the CRST's authority to regulate non-Indian hunting and fishing on specific lands that had been taken by the United States for a federal flood- control project. 508 U.S. at 690-691. More importantly, even after concluding that the CRST did not retain in herent authority to exclude persons from the land in question as a general matter, the Court proceeded to acknowledge the two Montana exceptions as "other po tential sources of tribal jurisdiction over non-Indians on these lands." Id. at 694-695 (emphasis added). It then remanded the case for a determination whether the terms of either exception were satisfied. Id. at 696. If petitioner's view were the law, that remand would have been pointless, because it was already clear that the land was owned by the United States.

Petitioner also puts great stock in the Court's state ment in Hicks that, "with one minor exception, [this Court has] never upheld under Montana the extension of tribal civil authority of nonmembers on non-Indian land." Pet. Br. 24 (quoting Hicks, 533 U.S. at 360). But Montana itself contemplates that there are situations in which the exercise of such jurisdiction is proper. See p. 18, supra. And Hicks decided only the narrow proposi tion that "tribal courts lack jurisdiction over state offi cials for causes of action relating to their performance of official duties," regardless of who owns the land on which they act. 533 U.S. at 369; see also id. at 358 n.2 (leaving "open the question of tribal-court jurisdiction over nonmember defendants in general").12

The Court has not yet had occasion to consider the significance of land status in a case where there were extensive contractual relations between Indians and a nonmember that were relevant to the underlying dis pute. In Strate, for example, the dispute arose between "two non-Indians involved in [a] run-of-the-mill [high way] accident," who had no "'consensual relationship' of the qualifying kind." 520 U.S. at 457 (brackets in origi nal). Similarly, in Atkinson Trading Co., the Court found that "a nonmember's actual or potential receipt of tribal police, fire, and medical services" did not form the requisite relationship, and that there was not a sufficient nexus between a hotel operator's federal license to transact business with the Navajo Nation and the occu pancy tax imposed on the hotel's nonmember guests. 532 U.S. at 655-656. Nevertheless, in both cases the Court still applied the first Montana exception-eval uating whether the criteria under that exception were satisfied, but concluding on the merits that they were not-even after it was clear that the relevant property was owned or controlled by non-Indians.

Thus, as it did in National Farmers Union, Strate, and Hicks-as well as Montana, Bourland, and Atkin son Trading-the Court should decline to adopt a cate gorical rule that precludes consideration of the Montana exceptions in cases involving conduct of non-Indians that occurs on land owned by non-Indians. That is especially so here, because the assertedly non-Indian land at issue in this case was itself a principal subject of the contrac tual arrangements, which conferred on respondents an option to purchase the land (and thus restore it to Indian ownership).

C. Montana's Exception For Consensual Relationships Permits Tribal Regulation Through Adjudication Or Tort Law

Petitioner presses (Br. 27) another categorical argu ment: that the first Montana exception recognizes only Tribes' regulatory or legislative jurisdiction, and never encompasses the adjudicatory jurisdiction of tribal courts. But that alleged exclusion is inconsistent with Montana and other decisions of this Court, and is not supported by the principles underlying those decisions.

1. Montana's first exception recognizes tribal au thority to "regulate" nonmembers "through taxation, lic ensing, or other means," and cites four illustrative cases. 450 U.S. at 565-566. In Strate, the Court emphasized that those cases "indicate[] the type of activities the Court had in mind" for the first exception. 520 U.S. at 457. Three of the cases dealt with the authority of a Tribe to impose taxes on nonmembers. See Washington v. Confederated Tribes of the Colville Indian Reserva tion, 447 U.S. 134 (1980); Morris v. Hitchcock, 194 U.S. 384 (1904); Buster v. Wright, 135 F. 947 (8th Cir. 1905). The fourth, however, addressed the authority of tribal courts over suits brought by nonmembers. See Wil liams v. Lee, 358 U.S. 217 (1959). In Williams, a non- Indian who operated a general store on the Navajo res ervation brought suit in state court to collect for goods sold to two Navajo Indians. The Court held that the state courts had no jurisdiction. Rather, the suit fell within the jurisdiction of the Navajo tribal courts, since the storeowner was "on the Reservation and the trans action with an Indian took place there." Id. at 223. Thus, Montana's first exception clearly contemplates that civil adjudications are one "other means" of exercis ing tribal jurisdiction over nonmember conduct. Accord ingly, when a non-Indian enters into a consensual rela tionship with a Tribe or its members, that relationship is brought within the legitimate reach of tribal govern mental authority, as this Court held in Colville, Morris, Buster, and Williams, and that authority may be exer cised through tribal courts as well as other organs of government.

In cases following Montana, the Court has consis tently confirmed that the first exception may encompass tribal-court authority. Strate even called "unremark able" the proposition that "where tribes possess author ity to regulate the activities of nonmembers, civil juris diction over disputes arising out of such activities pre sumptively lies in the tribal courts." 520 U.S. at 453 (brackets and internal quotation marks omitted). That statement directly contradicts petitioner's assertion that a Tribe may have regulatory jurisdiction under Mon tana's first exception yet could never possess adjudi catory jurisdiction over the same conduct. Strate also held that Montana governs the scope of tribal-court jurisdiction over nonmembers, without making any dis tinction between the first and second exceptions, id. at 451-452, and it specifically evaluated the availability of tribal-court jurisdiction under Montana's first excep tion, id. at 456-457, as well as the second, id. at 457- 459-thus defeating petitioner's attempt (Br. 36-39) to associate adjudicatory jurisdiction exclusively with the second exception. Later cases also show that the first Montana exception is relevant to the scope of tribal- court jurisdiction. See Hicks, 533 U.S. at 359 n.3, 372; Atkinson Trading Co., 532 U.S. at 654-656.

2. The Court's consistent approach is supported by sound policy, for it would make no sense to read civil adjudicatory authority out of the first Montana excep tion. If a Tribe has the authority to impose "regulatory" restrictions on nonmembers who enter consensual rela tionships with the Tribe or its members (which peti tioner does not dispute), it ought to have its own means of enforcing those requirements. See Cohen's Handbook of Federal Indian Law 598 (Nell Jessup Newton et al. eds., 2005) ("If a tribe has power to apply its law to gov ern a dispute involving a nonmember, then its courts likely can hear the claim.").

"Tribal courts play a vital role in tribal self-govern ment." Iowa Mut., 480 U.S. at 14; accord 25 U.S.C. 3651(5). They are therefore appropriate forums for ad judications arising out of law that a Tribe adopts in the exercise of self-government and permissibly applies to non-Indians under Montana. While their jurisdiction may not be exclusive, a sovereign Tribe should be enti tled to interpret and enforce its own law in the first in stance.13 Tribal authority over nonmembers on non-In dian land is already limited to those instances that fall under one of Montana's two exceptions; but when those criteria are met, tribal courts should be entitled to con sider claims of noncompliance with legitimate tribal re quirements.

Under petitioner's theory, however, Tribes and tribal members would be forced to seek out state courts to enforce tribal laws governing a nonmember's contrac tual relationships with them. In most cases, federal courts will not have jurisdiction over a contract or regu latory dispute between a Tribe or its members and a nonmember, because no statute generally provides for such jurisdiction. Even assuming that state courts would be available for such suits, see, e.g., Three Affili ated Tribes v. Wold Eng'g, P.C., 467 U.S. 138, 148 (1984), that would make one sovereign's law subject to the in terpretation of and enforcement by other sovereigns' courts, which would seriously undermine federal policies recognizing the centrality of tribal courts to tribal self- governance. See Iowa Mut., 480 U.S. at 16 ("Adjudica tion of [reservation affairs] by any nontribal court also infringes upon tribal law-making authority, because tribal courts are best qualified to interpret and apply tribal law."); see also pp. 2-3, supra. Indeed, because certain areas of the law-such as those governing con tracts and torts-are typically developed in a common- law manner by courts, rather than through legislative enactment, petitioner's position would deprive Indian Tribes of an essential means of lawmaking.

3. Petitioner and its amici offer no sound reason to distinguish tribal "regulation" via taxes, licensing, or statutory requirements from "regulation" via tort law.14 For that matter, neither petitioner nor its amici proffer a rationale that would explain why the tribal courts had jurisdiction over respondents' breach-of-contract and bad-faith claims, which petitioner appears to have con ceded in the tribal trial court and has not since chal lenged, but lacked jurisdiction over respondents' dis crimination claim, which arose out of the same contrac tual relationship. Cf. Hicks, 533 U.S. at 402 (Stevens, J., concurring in judgment) (noting that Strate "discusses the question whether a tribal court can exercise jurisdic tion over nonmembers, irrespective of the type of claim being raised").

As a general matter, tort law is a well-recognized means of governmental regulation of conduct. See, e.g., Riegel v. Medtronic, Inc., 128 S. Ct. 999, 1008 (2008) (ex plaining that "a liability award [for a state common-law tort] can be, indeed is designed to be, a potent method of governing conduct and controlling policy") (internal quo tation marks omitted). Here, as the federal court of ap peals recognized, "[b]y subjecting [petitioner] to liability for violating tribal antidiscrimination law in the course of its business dealings with [respondents], the Tribe was setting limits on how nonmembers may engage in commercial transactions with members inside the reser vation." Pet. App. A14. Indeed, the arbitrariness of dis tinguishing tort law from statutory or regulatory law is underscored by the fact that the tort-law norm here was found essentially indistinguishable from non-discrimina tion obligations imposed by federal statutes.

Nor is there any basis in statute, treaty, or this Court's decisions on the "implied divestiture" of tribal sovereignty to distinguish between a Tribe's authority to control nonmember conduct through legislative regu lation as opposed to common-law rules. Tribes have his torically regulated conduct among their people and on their reservations through customs and informal dispute resolution, and codification of those standards has been a comparatively recent phenomenon. It would be per verse to conclude that the Tribes have been divested of their historic common-law authority and retained only the authority to regulate through newfound means.

Petitioner and some of its amici suggest that tribal common-law claims may present a trap for unwary non members. See Pet. Br. 41-44. But this Court has previ ously "rejected * * * attacks on tribal court jurisdic tion" predicated on allegations of "local bias and incom petence," Iowa Mut., 480 U.S. at 18-19, and the facts do not bear out petitioner's concerns. Tribal courts take different forms and draw from varied traditions, but, like the CRST's own courts (Pet. App. A55 n.5, A80), many of them look to federal or state law to govern dis putes where no established tribal law applies.15 Indeed, when the Cheyenne River Sioux Tribal Court of Appeals recognized the principle of judicial review, it relied not only on Lakota tradition but also on this Court's opinion in Marbury v. Madison. See Cohen's Handbook of Fed eral Indian Law 274 n.545 (citing Clemente v. Le Compte, 22 Indian L. Rep. 6111 (Chy. R. Sx. Ct. App. 1994)).

In this case, petitioner cannot plausibly claim it was unfairly exposed to an unusual and unknowable claim. In the tribal court, petitioner had the option of request ing a jury that included nonmembers, and the judge who presided over the trial was a non-Indian law professor. Resp. Br. 13-14, 16. The Chief Justice of the Tribal Court of Appeals was also a non-Indian law professor (and a second member of the three-member panel was a non-Indian). Id. at 17. The only "uncertainty" (Pet. Br. 43) about the discrimination claim was the source of the obligation not to discriminate; its content so closely par alleled federal antidiscrimination law that petitioner repeatedly argued it was in fact a federal cause of ac tion. See Pet. App. A7, A51, A79. Both federal courts rejected petitioner's suggestion that it had somehow been prejudiced by asserted indeterminacy of tribal law, id. at A21-A22, A41-A44, and petitioner has abandoned any claim that the tribal-court proceedings violated due process, Pet. i & n.1.

II. Tribal-Court Jurisdiction Over Respondent's Discrimination Claim Was Appropriate Under Montana's Exception For Consensual Relationships With Tribal Members

In the absence of any categorical basis for precluding jurisdiction, the tribal courts' jurisdiction turns on appli cation of the Montana exceptions. Here, the tribal courts properly exercised jurisdiction in this case over the tort claim arising out of the parties' commercial transactions, because there is a clear nexus between the Indian status of all three respondents and the underly ing transactions that gave rise to the tort claim, and other factors demonstrate the "overwhelmingly tribal" nature of the parties' interactions. Pet. App. A11.

1. The first Montana exception applies when a non member has consented to commercial dealings with the Tribe or its members, thereby submitting to tribal juris diction over matters tied to that relationship. See, e.g., Hicks, 533 U.S. at 371-372. The dealings between the parties in this case reflect exactly the sort of "consen sual relationship" contemplated by Montana, and they developed in the "private commercial" context associ ated with that exception. Id. at 372. The course of com mercial dealings between the parties was also the basis for the dispute to which tribal antidiscrimination law applied. There was thus a close nexus between the con sensual relationship and the Tribe's assertion of juris diction. Cf. Atkinson Trading Co., 532 U.S. at 656 ("A nonmember's consensual relationship in one area thus does not trigger tribal civil authority in another.").

Petitioner took advantage of the fact that the tribal members possessed majority ownership of the respon dent Company to obtain BIA loan guarantees and inter est subsidies. J.A. 118-119. When respondents de faulted, the BIA paid off the guarantees. See pp. 6-7 & note 7, supra. In addition to the critical Indian status of respondents, a host of other facts about the parties' course of dealing makes the assertion of tribal jurisdic tion appropriate. The subject-matter of the negotiations and resulting contractual arrangements involved a sin gle ranching operation on both tribal and private land within the CRST Reservation; the collateral included cattle and equipment on both tribal and private lands; petitioner had entered the reservation to inspect the Long Company's operations and collateral, and some of the negotiations between the parties took place at tribal offices on the reservation, with the direct assistance of tribal and BIA officials; and the same course of dealing spawned closely related contract claims that were adju dicated in tribal court without objection. See pp. 4-6, supra.

Furthermore, petitioner's activities are precisely the type of nonmember conduct that Tribes have a sovereign interest in regulating. See, e.g., Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137 (1982) (recognizing Tribe's "general authority, as sovereign, to control eco nomic activity within its jurisdiction").

2. Petitioner argues (Br. 31-32) that the particular contract in the overall arrangement most directly tied to the discrimination claim-the lease of the 2230-acre par cel with an option to purchase that land-was with the Company, which is a South Dakota corporation and thus, in petitioner's view, not a Tribe "member" under Mon tana. But the Montana rule and its exceptions come from "an opinion, bear in mind, not a statute," Hicks, 533 U.S. at 372, and there is no reason to conclude that a member-owned corporation should be a nonmember for Montana purposes-especially when the corporation is (as here) closely held, doing business on the reserva tion, and imbued with an Indian identity by virtue of a federal program that is a necessary part of the underly ing commercial dealings.

It is not unusual for a corporation to assume an iden tifying attribute from its owners-especially where the government has a policy interest in treating the com pany differently in light of its owner's identity. See, e.g., 28 U.S.C. 1603(b)(2) (an entity is an instrumentality of a foreign state for sovereign-immunity purposes when a majority of its shares are "owned by a foreign state or political subdivision thereof"). In fact, in Pourier v. South Dakota Department of Revenue, 658 N.W.2d 395, 404 (S.D. 2003), vacated in part on other grounds, 674 N.W.2d 314 (S.D. 2004), cert. denied, 541 U.S. 1064 (2005), the Supreme Court of South Dakota held that "a corporation owned by * * * an enrolled tribal member * * * and doing business on the Indian reservation for the benefit of reservation Indians is an enrolled mem ber" for purposes of determining whether "the legal incidence of an excise tax rests on a tribe or on tribal members" under the approach described in Oklahoma Tax Commission v. Chickasaw Nation, 515 U.S. 450, 459 (1995).

Identifying the corporate respondent in this case as the functional equivalent of a tribal member is strongly supported by the terms and purposes of the Indian Fi nancing Act and its implementing regulations. The BIA loan guarantees were, legally and factually, a sine qua non for the repeated loan transactions between the par ties here. As described above, see pp. 4-5, supra, an "or ganization of Indians" must have majority-Indian own ership to qualify for federal loan guarantees, which the BIA could have denied had it appeared that respondents could "obtain the loan without a guaranty," 25 C.F.R. 103.16 (1996), since the program is intended to "provide access to private money sources which otherwise would not be available," 25 U.S.C. 1481. The Indian Financing Act's policy of encouraging economic development on reservations, including the development of Indian- owned businesses, would be undermined if such busi nesses were treated as nonmembers with a limited abil ity to resolve their disputes in tribal forums.

Petitioner's assertion-that member-owned, state- chartered corporations are always "nonmembers"- would also lead to absurd results inconsistent with the logic of Montana itself. For example, a Tribe would obviously have a strong interest in regulating a transac tion between two businesses owned by tribal members that operate on the reservation and enter into a contract with each other. See Merrion, 455 U.S. at 137. Yet, under petitioner's view, if those businesses happen to be corporations organized under state law, their transac tion would be considered one between two nonmembers and thus fall beyond the Tribe's jurisdiction in many instances. As the Eighth Circuit recognized, "[t]he Tribe's interest in regulating commercial transactions between its members and nonmembers does not disap pear just because a corporation is also a party to those transactions." Pet. App. A12.

3. Some of petitioner's amici (States Amicus Br. 20- 22; Association of Am. R.R. Amicus Br. 17-24) suggest that this Court should adopt a heightened standard for establishing tribal-court jurisdiction over nonmembers under the first Montana exception, alleging that there is a need for "[s]ymmetry" (States Amicus Br. 21) with the standard used to determine when a Tribe has waived its sovereign immunity from suits in state court. See C&L Enters., Inc. v. Citizen Band Potawatomi Tribe, 532 U.S. 411, 418 (2001). But there is, of course, no un derlying parity between the status of a sovereign and a private party, and declaring symmetry between unequals would vitiate clear federal policy about tribal self-government. See, e.g., 25 U.S.C. 3651(5) and (6).

Amici's suggestion is also inconsistent with the deci sions on which the first Montana exception is based. In Morris, Buster, and Colville, the non-Indians did not expressly consent to the exercise of tribal jurisdiction (in those cases, jurisdiction to tax). In those cases (as in Merrion), the voluntary commercial relationship was itself sufficient to warrant the exercise of tribal author ity. Similarly, in Williams, the Court held that the on- reservation commercial dealings with a tribal member were sufficient to require the nonmember to submit its contract dispute to tribal court. The same principle ap plies to petitioner's contractual dealings here.

That conclusion is supported by the established rule that no express consent to jurisdiction is required to subject a private party to suit in state courts. Fair warning of the prospect of such jurisdiction arises from the requisite purposeful contacts with a forum and its citizens, as long as the dispute arises out of those con tacts. See generally Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985). In the absence of, for example, a forum-selection clause to the contrary in the contract itself, the same should be true for suits in tribal courts in the limited circumstances where Montana's excep tions apply.

CONCLUSION

If the Court is ultimately satisfied that petitioner has standing to bring this suit (see note 10, supra), the judg ment of the court of appeals should be affirmed.

Respectfully submitted.

 

 

PAUL D. CLEMENT
Solicitor General
RONALD J. TENPAS
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
CURTIS E. GANNON
Assistant to the Solicitor
General
DAVID C. SHILTON
WILLIAM B. LAZARUS
AMBER B. BLAHA
Attorneys

 

 

MARCH 2008

1 See Honorable Sandra Day O'Connor, Lessons from the Third Sovereign: Indian Tribal Courts, 33 Tulsa L.J. 1, 2 (1997) ("The tribal courts, while relatively young, are developing in leaps and bounds.").

2 See, e.g., 18 U.S.C. 2265 (2000 & Supp. V 2005) (domestic violence orders); 25 U.S.C. 1911(d) (child custody orders); 25 U.S.C. 3106(c) (National Indian Forest Resources Management Act); 25 U.S.C. 3713(c) (American Indian Agricultural Resource Management Act).

3 See Halwood v. Cowboy Auto Sales, Inc., 946 P.2d 1088, 1089 (N.M. Ct. App. 1997); Sheppard v. Sheppard, 655 P.2d 895 (Idaho 1982).

4 See, e.g., Day v. State Dep't of Soc. & Rehab. Servs., 900 P.2d 296, 301 (Mont. 1995); Barrett v. Barrett, 878 P.2d 1051 (Okla. 1994); Gesin ger v. Gesinger, 531 N.W.2d 17 (S.D. 1995); Teague v. Bad River Band of Lake Superior Tribe of Chippewa Indians, 665 N.W.2d 899, 918-920 (Wis. 2003); N.D. Rules of Court 7.2.

5 The regulations cited in the text were effective at the time the dis pute arose. The BIA revised Part 103 in 2001, and the majority-owner ship requirement now appears at 25 C.F.R. 103.25 (2007).

6 In response to petitioner's application for another loan guaranty, the BIA requested additional information, which petitioner never pro vided. J.A. 118-119.

7 In return for its payment to petitioner, the BIA obtained assign ments of two loans in 2000. See 05-CV-3002 Docket Entry No. 38, Attach. 22 (D.S.D. Dec. 9, 2005). This Office has been informed by the BIA that the Company made some payments in November 2002, but the outstanding balance on the two loans is more than $350,000 (includ ing interest).

8 Finding jurisdiction appropriate under the first Montana excep tion, the court of appeals declined to address the second. Pet. App. A14 n.7. Thus, petitioner errs in stating (Br. 30) that "the Circuit Court properly concluded this was not a second Montana exception case."

9 Although petitioner argued in the tribal courts and in the federal district court that the discrimination claim arose under 42 U.S.C. 1981, it argued in the Eighth Circuit that it arose under 42 U.S.C. 2000d. Pet. App. A8, A15.

10 Respondents argue (Br. 25-37) that petitioner lacks standing to challenge the tribal courts' jurisdiction over their discrimination claim because petitioner suffered no injury from the adjudication of that claim. Although this point is raised for the first time in respondents' brief on the merits, the Court has "an obligation to assure [itself] of litigants' standing under Article III." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340 (2006) (internal quotation marks omitted). Petitioner, as the plaintiff, would have had the burden of presenting evidence of in jury, causation, and redressibility sufficient to survive summary judg ment if its standing had been challenged by respondents through ade quate averments or clear evidence. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Here, however, respondents' challenge is not of that character. To the extent an evidentiary basis for standing is none theless required, this Court may examine the record before it to deter mine whether standing exists. See, e.g., Department of Commerce v. United States House of Representatives, 525 U.S. 316, 330 (1999).

At this point, the principal question appears to be whether, on the ba sis of tribal-court documents in the record, petitioner would receive any concrete benefit from a declaration that the tribal courts lacked juris diction over the discrimination claim. Respondents present (Br. 25-37) a plausible argument that the legal and equitable relief they received is entirely attributable to their other claims. That argument appears to be based primarily on legal conclusions regarding the course of pro ceedings in the tribal courts, not the absence of any further factual sub mission by petitioner in federal district court. Because petitioner has not yet had a chance to answer respondents' arguments concerning the proceedings in the tribal courts and the resulting absence of injury and standing -and because that response may shed further light on the na ture and proper legal characterization of the particular proceedings and judgment in the tribal courts-the United States does not take a posi tion on the standing question at this juncture.

11 In describing the second exception, Montana again stated that a Tribe's civil authority can extend to "the conduct of non-Indians on fee lands within its reservation." 450 U.S. at 566.

12 While Hicks did not address the question of adjudicatory jurisdic tion over non-Indians in general, it did observe that "there was little doubt that the tribal court had jurisdiction over [the] tort claims" in El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (1999), which were brought by tribal members against non-Indian corporations. Hicks, 533 U.S. at 368 (citing 526 U.S. at 482 n.4). While the claims in Neztsosie arose on Indian land, the statement in Hicks, like the other decisions discussed above, refutes any notion that tribal courts can never enter tain tort suits against non-Indians.

13 Cf. Pernell v. Southall Realty, 416 U.S. 363, 368-369 (1974) (dis cussing deference to state court's interpretation of state laws).

14 In finding that Tribes had been implicitly divested of adjudicatory jurisdiction in criminal matters, the Court relied in substantial part on the fact that Congress had established federal jurisdiction over crimes committed by non-Indians against Indians on a reservation. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 201-204 (1978). By contrast, Congress has never granted federal courts general jurisdic tion over civil disputes between Indians and non-Indians, and a seminal 1855 opinion of the Attorney General noted the significant difference between civil and criminal jurisdiction. National Farmers Union, 471 U.S. at 853-855; 7 Op. Att'y Gen. 175 (1855). Thus, because there are no distinct principles of implied divestiture of jurisdiction in civil cases, whether tribal courts have jurisdiction over a particular suit against non-Indians is properly governed by the general standards of Montana.

15 See, e.g., Matthew L.M. Fletcher, Toward a Theory of Intertribal and Intratribal Common Law, 43 Hous. L. Rev. 701, 739 (2006) (noting tribal law "tends to mirror American laws" because Tribes "must be ab le to function in the American political system in a seamless manner"); id. at 734-735 (discussing tribal-court use of Anglo-American legal constructs and state and federal common law; concluding there is little evidence that tribal courts are unfair to nonmembers); Bethany R. Berger, Justice and the Outsider: Jurisdiction Over Nonmembers in Tribal Legal Systems, 37 Ariz. St. L.J. 1047, 1085 (2005) (finding Navajo common law has been used to provide protections comparable "to those in state courts" even when tribal codes do not).

Type: 
Merits Stage Amicus Brief
Updated October 21, 2014