Tribal Court Jurisdiction (III)

Over the last two days, I’ve been arguing that the Supreme Court’s decision in Plains Commerce Bank was fundamentally misguided and arises out of the assumption that all tribal courts are identical and are biased against non-members.


If you see the doctrine as primarily about the question of fairness to non-members, you are naturally led to the factual question: is there anything in tribal court practice that is fundamentally unfair for non-tribal litigants? A very nice general background of modern tribal court practice with a specific focus on the Navajo Nation is outlined in one of the amicus briefs, so I won’t repeat it here. Focusing in on what happened in this case, though, you see a procedure very similar to what you might see in state or federal court. The Cheyenne River Sioux Tribe has incorporated both the Federal Rules of Civil and Appellate Procedure by statute. The bank had the option (although it declined to exercise it) to request non-tribal members to serve on the jury. After the trial court issued a decision, the case was reviewed by an independent appellate body. Moreover, the bank had a history of successful prior litigation in the tribal court against tribal members.

The Chief Justice’s opinion relies on the fact that the lower courts viewed the claim as “novel” and arising from “Lakota tradition as embedded in Cheyenne River Sioux tradition.” This statement is clearly designed to make the tribal law appear foreign and incomprehensible. In fact, the tribal court of appeals was making a conscious effort to apply classic common law techniques to develop tribal law and have it mirror and draw on principles of federal and state law. Here’s the language about tradition in its original context.

While there is no express tribal ordinance creating a civil cause of action based on discrimination, there are nevertheless at least two other sources of tribal law that do recognize such a cause of action. They are tribal common law and the Cheyenne River Sioux Law and Ordcr Code § 1-4-3 which confers jurisdiction on

the trial court over claims arising out of “tortious conduct.” Since it is well understood that a claim based on

discrimination essentially sounds in tort, jurisdiction over “tortious conduct” necessarily includes jurisdiction over

Plaintiffs’ discrimination claim. In addition, there is basis for a discrimination claim that arises directly from Lakota

tradition as embedded in Cheyenne River Sioux tradition and custom. Such a potential claim arises from the existence of Lakota customs and norms such as the traditional Lakota sense of justice, fair play and decency to others,” Miner v. Banley, Chy. R. Sx. Tr. Ct. App., No. 94-003 A, Mem. Op. and Order at 6 (Feb. 3, 1995); and “the Lakota custom of fairness and respect for individual dignity.” Thompson v. Cheyenne River Sioux Thbal Board (~lPolice Commissioners, 23 ILR 6045, 6048 Chey. R. Sx. Tr. Ct. App. (1996). Such notions of fair play are core ingredients in federal and state definitions of discrimination. Therefore a tribal based cause of action grounded in an assertion of discrimination may proceed as a “tort” claim as defìned in the Cheyenne River Sioux Tribal Code, as derived fì’om Tribal tradition and custom, or even from the federal ingredients defined at 42 U.S.C. § 2000-2001.

The court follows this text with a footnote reading “Note this last theory is not the pursuit of a federal cause of action in tribal court like the 42 U.S.C. § 1983 claim in Nevada v. Hicks, but that of a “borrowing” of federal law to

stand in or amplify tribal law where it is necessary. See, e.g.. Cheyenne River Sioux Tribal Law and Order Code, Title VII Rule 1 (d).” (The tribal court opinions in the case can be found here. If you haven’t read tribal court opinions and are interested in these issues, they are worth a look.). Because the tribal court was trying to align tribal law with federal and state law, the Supreme Court’s analysis is here is quite flawed.

None of these factors shoudl decide the case standing alone, but in combination, the bank seems to have no reason to complain about the fairness of the process here. Of course, a case by case fairness analysis is far more complicated than drawing lines based on land ownership, but it is worth the effort. If fairness is the central concern, it hardly makes sense to treat all tribes as identical to each other but different from all other courts.

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1 Response

  1. Mark Seecof says:

    Professor Minzner,

    I’ve been reading your series of posts about tribal courts, etc. with interest. I realize that you wish to discuss the law as it stands, but I’m not sure you can discern the policy motives behind the Supreme Court’s decisions without taking note of the strange context of “dependent sovereignty.” See, e.g., a partial summary in Souter, J.’s dissent in U.S. v. Lara, 541 U.S. 193 (2004).

    Dependent sovereignty is an ad-hoc political compromise of dubious Constitutionality and many of the political actors and judges who cooperate to maintain it recognize that if it is extended too far it may collapse. Since the Indian Citizenship Act of 1924 Congress has likely had no Constitutional authority to delegate (or to recognize) any power over non-members (or former members) to (or “of”) “tribal courts” or “governments.” There simply are no sovereign bands of non-citizen Indians left to deal with. With respect to courts the whole existing scheme for tribal courts affronts the appointments clause and most of Article III, arguably contravenes the Titles of Nobility clause (Article I, Section 9, Clause 8) since tribal membership is a heritable privilege, and undoubtedly produces many violations of the Bill of Rights (which as Heller v. D.C. just reminded us, applies to inferior “governments” established by Congress).

    It might be fine for Congress to permit Indians to maintain voluntary tribal courts (say, the way Roman Catholics maintain canon-law courts) and to authorize State and Federal courts to enforce tribal decisions (within Constitutional limits) as with commercial arbitration, but there is no principle of American law which would permit Congress to force anyone, tribal member or not, to submit to such organs.

    On the other hand, as you have been explaining so clearly, Congress has (ultra-vires, to be sure) delegated power to tribal courts and the Supreme Court has largely tolerated this. Why? Because it seems to many people to be the best way to provide for local affairs of reservation Indians. However, the Supreme Court resists Congress’ moves to extend the baseless jurisdiction of tribal courts to non-members because non-members aggrieved by the obvious partiality of tribal courts would likely raise the equally obvious Constitutional arguments against such jurisdiction before the Supreme Court. The Supreme Court would find it uncongenial either to enforce a clearly improper tribal court scheme against non-Indians or to strike down the tribal court scheme for everyone including Indians.

    I suspect that the Supreme Court’s tendency to assume all tribal courts are alike (even though, as you have shown, they really are not) stems from a desire to see-no-evil. The practical differences among tribal courts are irrelevant from a Federal Constitutional point of view: to the extent that tribal courts exercise improperly delegated Federal power, they are all the same.

    (Could Congress properly delegate any mandatory power to Indian “tribal” courts? I think it could! Congress could authorize local governments and courts on Indian reservations which were truly Federal territory. However, such governments would be subject to the Bill of Rights, to the Privileges and Immunities clause, to the Titles of Nobility clause, to the supervisory power of Article III courts, and to the 15th Amendment– so reservation governments would have to permit equal voting participation by non-tribal-members living in such territories. Even more trouble, from the point of view of many, would be the “forts and magazines” clause (Article I, Section 8, Clause 17) requiring the consent of the legislature of any affected State to expand Federal territory. If Congress obeyed that, it could not so easily give Indians “extraterritoriality” to set up casino gambling.)

    You suggested that tribal courts and the laws they apply could be as just as any and that non-member litigants might do as well in a tribal courts as non-residents in State courts. While I accept your analysis, Caesar’s wife must be above suspicion. A court established by a small, insular tribe applying recondite customary law does not appear fair to non-member litigants. If the Supreme Court could take notice of the difference between, say, the courts of the Navajo Nation and those of some one-busload-of-casino-owners tribe, perhaps it could then manage a fair system of tribal courts. However, the Supreme Court could only divest inadequate tribal courts of jurisdiction on grounds which would necessarily apply to fully-capable tribal courts– grounds which I have touched upon– the various ways today’s tribal courts offend the Constitution. If Congress were to create legitimate reservation governments and courts (that is, based on territory rather than tribal membership) then we could ask the Supreme Court to supervise them properly.