Commentary on the Plains Commerce Bank Cert Grant

The Supreme Court’s decision to grant certiorari in Plains Commerce Bank v. Long Family Land & Cattle Co. surprised me a great deal. It proves, I think, that Indian law scholars and practitioners cannot claim to predict how the Supreme Court is going to act (no big surprise there, given how few Indians or Indian lawyers have clerked for the Court), but I also think it shows that the so-called Supreme Court bar can miss one every now and then [SCOTUSBlog’s Petitions to Watch seemed to miss this one].

First, as Indian law advocates must, expect the Supreme Court to reverse the CA8 decision finding a Montana 1 consensual relationship in this case. More than 70 percent of cases reaching the Supreme Court are reversed. Often, as we know, the Court grants cert. to correct the lower court.

Second, expect the Supreme Court to come close to or finally adopt the Oliphant bright line rule that Indian tribes, tribal courts, tribal regulatory agencies, whatever cannot ever have civil jurisdiction over nonmembers. This case does not require the Court to come to that conclusion because its review will be limited to the application of a federal common law test (the Montana 1 exception), but as my comments below suggest, eliminating the Montana exceptions may be the only way for the Court to reverse the CA8. [If you want to read an overview of the Montana rule and its exceptions, check out my paper here.]

Third, the cert grant surprises me for a couple reasons. The main one is that this is perhaps a bad vehicle for the Court (and a decent one for the tribes). The Court has long been looking for a vehicle to finally make a determination on whether or not tribal institutions can take civil jurisdiction over nonmembers. The non-Indian bank argued, as it must in accordance with National Farmers Union, before the tribal court that the tribe did not have jurisdiction over it. But on appeal (the Bank must exhaust tribal court remedies in accordance with Iowa Mutual) to the tribal court of appeals, the Bank waived the jurisdiction question by not raising it.

Fourth, another reason I am surprised by the cert grant was that there was no subtlety to the Bank’s cert petition. No circuit split was alleged, not surprisingly in Indian Country. But petition reads like this: “An Indian tribal court took jurisdiction over a non-Indian business. That can never happen.” The Bank is asking the Court to rule that there can never be a Montana 1 exception and to effectively overrule that portion of the Montana decision.

However, in the parlance of the cert pool, this case is a fact-bound, splitless application of settled law — the mere application of the Montana 1 exception. That the Court has never upheld the application of the Montana 1 exception (in just a few tries — Atkinson Trading, Strate) does not create a conflict with the Court’s precedents.

Fifth, another reason I am surprised is that the petitioner’s counsel is not a part of the so-called Supreme Court bar, drawing upon Richard Lazarus‘s theory that a small group of Supreme Court practitioners dominates contemporary Supreme Court adjudication. Of course, maybe this is exception that proves the rule, whatever that means. 🙂

Sixth, another reason I am surprised is that private non-Indian petitioners fare almost as badly as Indians and Indian tribes in Supreme Court cert grants involving Indian law. My ongoing study of Indian law certiorari decisions demonstrates that Indians and Indian tribes, since 1997, are successful in petitioning the Court to grant cert only four percent of the time. States, by contrast, are enormously successful; about one-third of their petitions are granted in Indian law cases.

Seventh, this might be a good vehicle favoring tribal court jurisdiction because of the factual circumstances in this case. Importantly, because the Court has often complained that tribal jurisdiction over nonmembers appears to be inconsistent with the Lockean consent of the governed theory, the Cheyenne River Sioux tribal court actually empowers non-Indians to seek a jury of their peers, i.e., other non-Indians are qualified to serve on tribal court juries. The Bank declined to exercise this option.

However, the response to the jury question (as well as the waiver question raised in the third paragraph above) is that, as the Court noted in previous cases, one of the exceptions to the tribal court exhaustion doctrine is futility. So, it appears the Court will allow the Bank to get away with these offenses.

Eighth, and I believe the respondents and tribal amici would be better leaving this one alone, the Bank’s counsel made obnoxious comments to the tribal court of appeals panel, which features Prof. Frank Pommersheim as its chief judge. The character of the obnoxious comments to the court is described in the final paragraphs of the appellate decision:

Unfortunately, a final concern must be addressed. In his concluding summation to this Court, counsel for the Bank stated that a lot of banks and lenders were watching this case. While it seemed jarring and inappropriate at the time, it is even more so upon reflection. It is difficult to see the statement as merely some form of artless advocacy, but rather more as some kind of threat impugning the integrity of the Cheyenne River Sioux Tribe’s judicial system, which this Court finds most offensive and unprofessional. Such statements must not be made again. Though it hardly needs repeating, this Court restates its commitment to fair play, the rule of law, and cultural respect for all parties who appear in the courts of the Cheyenne River Sioux Tribe.

Order at 18-19.

In my experience as a tribal attorney, I have seen time and again counsel for non-Indians behave in odd and unprofessional ways before tribal court judges, whether they are non-law-trained tribal elders or experienced law professors. I wrote about one aspect of this horrid phenomenon in my paper on tribal court common law:

Few take the time to learn the law of Indian tribes. And, while it may be true that tribal common law is not as simple to discover as state or federal common law, “much of the information is acquired in the same way other legal education is acquired.” Tribal common law often is available online and in published reporters. But, as any tribal court judge can attest, lawyers appearing in tribal courts every working day often refuse to learn tribal court rules or to seek out substantive tribal court decisions and tribal statutes.

43 Houston L. Rev. 701, 715-16 (2006).

It’s worth noting that advocates who behave in this manner in Indian Country, as opposed to most areas of law, are rewarded by the Supreme Court that usually finds that tribes should not have jurisdiction over nonmembers.

Ninth, drawing upon the Bank’s counsel to the tribal appellate court that banks and lenders are watching this case, it is worth noting that many, many banks (ones likely far more solvent than the Plains Commerce Bank) lend millions and millions to Indian tribes and Indian people all the time. The Bank’s counsel’s assertions are not empirically verifiable because they are not true.

Tenth, and finally, this case is creates a strong possibility that the Court will eliminate the Montana exceptions because the case favors the tribal respondents. The key factors for the Court in applying these exceptions (especially Montana 1) have been a commercial relationship, a lack of tribal procedural and political safeguards for the nonmembers, and some sort of impact on tribal sovereignty. Well, all three are present here: (1) the bank doing business with tribal members; (2) the bank having the opportunity to select non-Indians on its jury; and (3) the fact that land (more than 2200 acres) owned by tribal members on an Indian reservation could revert under a mortgage agreement to a non-Indian-owned bank.

However, the saving grace for this case might be simply this — nonmembers should be able to choose for themselves the civil law that applies to them and that legal factor alone might save Montana 1 (forget Montana 2). There is still hope for my proposal that Indian tribes adopt immigration rules under their power of exclusion.