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Appeals court upholds tribal jurisdiction after rehearing

A federal appeals court reversed course on Tuesday and upheld tribal jurisdiction over an accident that occurred on the Flathead Reservation in Montana.

By an 8 to 3 vote, the 9th Circuit Court of Appeals said the case can be heard in tribal court even though it was not brought by a member of the Confederated Salish and Kootenai Tribes. The majority held that the lawsuit implicated tribal interests because the tribe's college and two tribal members were being sued over the fatal accident.

"The tribes have a strong interest in regulating the conduct of their members; it is part of what it means to be a tribal member," Judge Jay S. Bybee, a nominee of President George W. Bush, wrote in the 24-page opinion.

The court also noted that James Smith, a former student at the Salish Kootenai College, voluntarily brought his lawsuit in tribal court. It was only until he lost the case that he decided to question the tribe's authority.

"If Smith has confidence in the tribal courts, we see no reason to forbid him from seeking compensation through the tribes' judicial system," the decision stated.

Previously, a three-judge panel of the 9th Circuit had sided with Smith, a member of the Confederated Umatilla Tribes of Oregon. In an August 2004 decision, the court said the lawsuit didn't affect tribal rights, citing the U.S. Supreme Court's precedent in Montana v. US, a 1981 case that presumes tribes lack jurisdiction over non-tribal members.

After rehearing the case last June, the en banc panel of 11 judges changed course. But since three of the judges disagreed with the majority, the case could be ripe for review by the Supreme Court, whose decisions have consistently gone against tribal interests since the 1981 Montana case.

"The court has changed the rules on us," C. Bryant Rogers, an tribal attorney, said at an Indian law conference last year "They're going to keep changing the rules on us."

In the dissent, Judge Ronald M. Gould, an appointee of former president Bill Clinton, accused the majority of ignoring the Supreme Court's rules by focusing on Smith's status as a plaintiff -- rather than a defendant -- in tribal court. He said Smith is a non-Indian in the eyes of the Montana decision, which lays out two exceptions in which tribes can exercise jurisdiction over non-members.

The first exception requires a "consensual relationship" between the tribe and the non-member. "Smith does not have any of the attributes of a 'private commercial actor' and the filing of a cross-claim is not a 'private consensual relationship' as the Supreme Court has interpreted the first exception," Gould argued in the seven-page dissent that was joined by Judge Pamela Ann Rymer, a Reagan appointee, and Judge Consuelo M. Callahan, a Bush appointee.

The second exception allows tribal jurisdiction if the tribe's political integrity, economic security, health, or welfare are at issue. "Neither of the Montana exceptions, as construed by binding Supreme Court precedent, applies to the situation here and, therefore, the exercise of tribal jurisdiction over nonmember Smith was not correct," Gould wrote.

The case stemmed from a 1997 incident on the reservation in which every party involved was Indian or tribal-related. Smith was driving a vehicle owned by Salish Kootenai College when it apparently malfunctioned, causing it to roll over.

One passenger, Shad Eugene Burland, was killed and a second passenger, James Finley, was seriously injured, as was Smith. Burland and Finley were Salish and Kootenai tribal members.

Smith later filed a lawsuit that claimed SKC was negligent in its maintenance of the vehicle. The tribal court found in favor of the college.

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

Earlier Decision:
Smith v. Salish Kootenai College (August 6, 2004)

Case Documents:
Smith v. Salish Kootenai (NCAI-NARF Tribal Supreme Court Project)

Relevant Links:
Salish Kootenai College -
Confederated Salish and Kootenai Tribes -