The following commentary was written by Gavin Clarkson
(Choctaw), an assistant professor at the University of Michigan. He attended yesterday's oral arguments on behalf of Indianz.Com.
As I walked into the U.S.
chambers for the oral argument of Plains
Commerce Bank v. Long Family Land & Cattle Company
, I was filled with a
sense of foreboding. The last time I attended oral argument was in 2001
for Nevada v. Hicks
After that awful experience, I was not hopeful that this time would be different.
Given the clear facts in this case and a string of victories for tribal court jurisdiction in four lower court proceedings, many in the Indian law community feared that the only reason the justices took the case was to wreak havoc upon tribal court jurisdiction.
So I was immediately surprised when the justices unleashed a barrage of tough questions for Paul A. Banker
, the aptly named attorney for Plains Commerce Bank
South Dakota. He seemed unprepared for the onslaught and was backed into a corner on several occasions.
As one example, Banker suggested a tribe could impose a tax on a non-Indian at a tribal gas station. But he said the tribe could not enforce the tax in tribal court -- even under
, which sets out two exceptions in which a tribal can exercise civil jurisdiction over non-Indians -- without explicit consent by the non-Indian.
"The question really is how far does that ability go and how far does it stretch. I don't think that it stretches to adjudication," Banker said of tribal court authority.
Among the Supreme Court, Justice Antonin Scalia
has been quite hostile towards tribal courts. So it was equally surprising when Scalia got Banker to admit that his client could have avoided the dispute by inserting a clause in its loan documentation to require resolution in the state court system.
"In the absence of that, why should we bend over backwards to give something that has the smell of dealing with the Indians any other name?" Scalia asked.
Plains Commerce extended loans to Ronnie and Lila Long, members of the Cheyenne River Sioux Tribe
of South Dakota who ran a cattle operation on the reservation. The Bureau of Indian Affairs
guaranteed the loans through a federal program created by Congress.
In contrast to Banker, David C. Frederick
and Curtis Gannon, attorneys for the Longs and the United States respectively, seemed far better prepared. The highlight of the morning came in response to a pointed question from Justice Ruth Bader Ginsburg
regarding the lack of state or federal court review of tribal court decisions.
Frederick, a Washington, D.C., attorney, argued that while such decisions are not subject to state or federal court review, off-reservation enforcement is a function of comity, which means that a state or federal court would only enforce a tribal court judgment that was fair.
"It's not full faith and credit; it's comity," Fredericks said of the standard followed in South Dakota. "And that comity provides for a substantive review while enforcing the judgment."
And while Plains Commerce Bank asked the court to eviscerate tribal jurisdiction by eliminating the Montana exceptions altogether absent explicit consent, both Frederick and Gannon, of the
Department of Justice
, avoided overreaching. They instead presented the case as a straightforward one in which the first Montana exception -- relating to "nonmembers who enter consensual relationships with the tribe or its members,
through commercial dealing, contracts, leases, or other arrangements" -- should apply.
"This court's Montana framework confirms that Indian tribes can, in some circumstances, exercise legitimate authority over nonmembers and nonmember land on their reservations," Gannon said.
Through their joint Tribal Supreme Court Project
, the National Congress of American Indians
and the Native American Rights Fund
submitted an amicus brief in the case. NCAI general counsel John Dossett, who helped write the brief, seemed quite pleased with the direction of the oral arguments.
Tribes across the nation are also watching the case closely. Steve McSloy, who helped write an amicus brief on behalf of the Navajo Nation and tribal court organizations, commented that the argument went better than expected.
McSloy noted, however, that the court's "hypothetical about a bank making a home equity loan on a reservation just points out the justices' unfortunate lack of understanding of how things really work in Indian Country, where mortgages, much less home equity lines, are rare."
NARF attorney Richard Guest, who works on the Tribal Supreme Court Project, echoed my own
sentiments, stating that he felt more hopeful after the argument than before. "But we've had that feeling before and been completely wrong," he cautioned.
First Impressions of the Plains Commerce Bank Oral Argument
(Turtle Talk Blog 4/14)
| Docket Sheet:
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)
v. Salish Kootenai College
(January 10, 2006)
Related Stories:Supreme Court to hear
(4/14) DOJ to join
argument in tribal court jurisdiction case
(4/3) Bush brief backs tribal court jurisdiction
(3/24) Opinion: No tribal jurisdiction
agrees to hear tribal jurisdiction case
(1/8)Appeals court upholds tribal verdict in bank loan
(6/28)9th Circuit vacates tribal
non-Indian bank to tribal laws
(7/20) Appeals court upholds tribal jurisdiction after