Argument Preview

Since the nineteenth century, courts have held that Native American tribes lack full sovereignty, and thus that tribal courts generally lack jurisdiction over claims arising between members and nonmembers. In its watershed decision in Montana v. United States, the Supreme Court identified two exceptions to this rule: first, "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 deals, contracts, leases, or other arrangements"; second, "[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 he health or welfare of the tribe." Today in No. 07-411, Plains Commerce Bank v. Long Family Cattle Company, the court will consider whether tribal courts "have subject-matter jurisdiction to adjudicate civil tort claims as an "other means' of regulating the conduct" between members and non-members.

[edit] Background

Respondents Ronnie and Lila Long are husband and wife as well as majority shareholders in the Long Family Land & Cattle Company (also a respondent in the case) and registered members of the Cheyenne River Sioux Tribe. The Long Company is a South Dakota corporation whose terms of incorporation require it to be at least fifty-one-percent Indian-owned to qualify for Bureau of Indian Affairs (BIA) loan guarantees.

Before his death, Kenneth Long "“ Ronnie Long's father "“ mortgaged 2300 acres of fee land on the Cheyenne River Sioux Reservation to secure Long Company operational loans, totaling some $750,000. Following his death in July 1995, the Longs and the Indian Bureau negotiated a deal with petitioner Plains Commerce Bank, which is not affiliated with the Tribe, pursuant to which the land was deeded over to the bank in exchange for the cancellation of some debt and the further guarantee of additional loans for the Long Company. The original agreement, according to the Longs, included the provision that the Bank would immediately sell the Longs' land back to them with a twenty-year contract. However, the Bank later revoked this offer, citing potential "jurisdiction problems" arising from the Longs' membership in the Tribe. Instead, they signed a two-year lease with an option to buy.

When the Longs did not receive additional loans from the Bank, they lost much of their livestock and, as a result, were unable to repurchase the land. The Bank initiated eviction proceedings in the tribal court system and sold a portion of the land to another, non-tribal affiliated party, at an interest rate lower than that which was offered to the Longs in their option to buy.

The Longs and the Long Company filed a lawsuit in the tribal court in which they alleged that the Bank had engaged in "self help measures and discriminatory behavior" by selling the land to nonmembers on more favorable terms. They used the letter from the bank withdrawing their twenty-year contract as evidence and moved for a restraining order.

A jury ruled in the Longs' favor and awarded them $750,000 in damages. In a post-trial supplemental judgment, however, the tribal court ruled in the Bank's favor on the discrimination claim.

The Bank then filed a suit in the U.S. District Court for the District of [fill in], seeking a declaration that the tribal judgment was null and void, because the tribal court lacked jurisdiction over it as a non-member. The district court rejected this argument, however, citing the consensual commercial relationship between the Longs and the Bank.

The Bank appealed to the Eighth Circuit appeal, arguing that the first Montana exception did not apply to its case because the Bank's business relationship was with a South Dakota corporation with no tribal identity. The court of appeals rejected this argument, explaining that the bank's focus on its relationship with the corporation ignored "the broader context of its interaction" with the Long Company. The Long Company's incorporation, the court emphasized, required it to be majority-owned by Native Americans to qualify for BIA insured loans, and the bank itself profited from the ensuing BIA incentives and guaranteed loans. Moreover, tribal members Ronnie and Lila personally guaranteed Long Company debt. The court thus concluded that the tribal court's decision was akin to regulating conduct, as the first Montana exception required, by "setting limits on how nonmembers may engage in commercial transactions with members inside the reservation."

[edit] Petition for Certiorari

Plains Commerce Bank filed a petition for certiorari, which the Court granted on January 4, 2008. The Bank asked the Court to consider only the question whether the first Montana exception included civil-adjudicatory jurisdiction over a nonmember defendant. It argued that under that exception, tribal governments may only regulate non-members; other kinds of civil authority are included only in the second exception, which allows regulation of non-members when those members' actions threaten the livelihood or existence of the Tribe).

Opposing certiorari, the Longs argued that the case at hand requires only a "straightforward application of the first Montana exception." They also argued that the Bank was attempting to create a false dichotomy between the first and second Montana exceptions. Citing Montana and the decision in Williams v. Lee, the Longs deemed it "well settled that Indian tribal courts may adjudicate common law causes of actionas an appropriate means of regulating the activities of nonmembers" entering into consensual relationships with tribal members. The Montana exceptions, they continued, differentiate not between the types of authority tribes may exercise, but between the "categories of nonmember conduct" over which all forms of civil authority may apply.

[edit] Merits Briefing

In its brief on the merits, Plains Commerce Bank contends that its lending relationship with The Long Company cannot "support trial adjudicatory jurisdiction over members' tort claims," and that the general rule in Montana controls. The first exception requires , the relationship between the tribe and the non-member to be consensual "“ which, the Bank argues, it was not. In the second exception, the conduct must threaten or affect the "political integrity, economic security or the health and welfare of the tribe," which the Bank's actions did not.

While the Tribe's dependent sovereign status allows it internal authority, the Bank explained, it still lacks the broad authority over nonmembers. Recounting the legal history of the tribes in America, the Bank highlights two important historical threads: first, that Indian self-government is neither based in nor constrained by the U.S. Constitution; and, second, that tribes are no longer independent nations. As part of their reduction in status to a dependent nation, the tribes' jurisdiction no longer extends to nonmembers who own fee land on a reservation. The Bank contends that its ownership of the land is virtually dispositive of the tribal court's lack of jurisdiction. Quoting one Supreme Court decision on tribal authority, the Bank argues that "since Montana was decided, "the absence of tribal ownership has been virtually conclusive of the absence of tribal civil jurisdiction.'"

Even if its ownership of the land does not preclude tribal jurisdiction, the Bank argued, the Supreme Court should still hold that civil tort claims are not an "other means" of regulating conduct for purposes of the first Montana exception. According to the Bank, the Eighth Circuit's decision "would elevate tribal courts to the status of courts of general jurisdiction."

The Bank concluded that allowing nonmembers to be subject to tribal law is a dangerous proposition, given that there is "legal uncertainty" about what exactly tribal law is, and that practically speaking, there "are no compelling reasons requiring a nonmember defendant to defend itself in tribal court."

In their brief on the merits, the Longs' primary argument is that the Bank lacks standing to challenge the decision below. Specifically, the Longs explain, although the only issue before the Court is the Tribe's right "to adjudicate civil tort claims," the Bank actually prevailed on the Longs' discrimination claim in the tribal court's. The only relief granted by the tribal court "“ for damages for the loss of the Longs' cattle "“ stemmed not from a tort claim, but instead from a breach of contract claim.

Addressing the merits of the Bank's claims, the Longs counter that the case requires only a simple application of the first Montana exception. And in any event, the Longs argue, the Tribal Court properly exercised jurisdiction under the second exception, as the "predatory and discriminatory lending practices directed at tribal members" amounts to conduct that threatens the security of the Tribe.

Posted in Plains Commerce Bank v. Long Family Land & Cattle, Everything Else