Later today, I will be speaking at UNM’s “Montana v. United States: Pathmarking the Field of Indian Law for Three Decades and Counting” conference (agenda here; conference website here).
As many readers know, the Montana test limits tribal civil jurisdiction over nonmembers absent two pretty narrow exceptions. It’s fairly clear now (with the benefit of hindsight) that the Supreme Court’s concern over tribal jurisdiction over nonmembers is largely based on property rights. The Court repeatedly has implied a concern that nonmembers could somehow be subject to a loss of their private property. The Montana case, involving tribal hunting and fishing regulations aimed at members and nonmembers on privately-owned land, seemed to be about regulatory takings. Later cases, such as National Farmers Union, the case that established a federal common law right (and a cause of action) to be free of tribal court jurisdiction, came to the court amidst fears that tribes would literally confiscate nonmember property without review at all.
Consider Justice Rehnquist’s separate opinion in National Farmers Union issued prior to the granting of certiorari, where he expressly notes his concern that nonmember property could be seized without due process by tribes:
After the issuance of the mandate of the [Ninth Circuit] Court of Appeals, tribal officials, at the behest of respondent Sage, seized 12 computer terminals, other computer equipment, and a truck from the school district. The basis for this seizure was said to be the Tribal Court judgment, and no state process was invoked.
If the Court of Appeals is correct in the conclusions which it drew in its opinion, the state of the law respecting review of jurisdictional excesses on the part of Indian tribal courts is indeed anomalous. The Court of Appeals may well be correct that tribal courts are not constrained by the Due Process or Equal Protection Clauses of the Fourteenth Amendment[.]
This excerpt is available on pages 1187-1188 here.
Ironically, very ironically, the Court’s aggressive limitation on tribal court jurisdiction (even where the tribal court provided admirable due process, as in Plains Commerce Bank) under the Montana test, coupled with the Court’s steadfast recognition of tribal immunity, encourages Indian tribes to confiscate tribal property first, and then litigate. Consider the Tenth Circuit’s decision in Miner Electric, where the tribe used a civil forfeiture ordinance to confiscate the property of a nonmember that had likely committed a crime, defend the confiscation in tribal court on the merits, but then raise sovereign immunity in federal courts (successfully). As a direct result of the Court’s very cramped view of tribal jurisdiction over nonmembers, more and more tribes are resorting to civil offense and civil forfeiture statutes as a solution to their inability to regulate offensive and illegal nonmember conduct.
My talk today arises in this recent context. I wish to address additional means of resisting the Supreme Court’s holdings on tribal civil jurisdiction. My recent article in the Colorado Law Review identifies a few possible ways Indian tribes might resist federal courts on civil jurisdiction, including refusal to appear to defend the jurisdictional claims of nonmembers in federal court,and even open refusal to comply with federal court orders mandating the dismissal of a tribal court action involving a nonmember defendant.
I will begin with a scenario that could potentially occur in many areas of Indian country. A few years back, the Seneca tribal courts began adjudicating a case involving the eviction of a nonmember business from Seneca fee land (in fact, the fee land arguably was off-reservation). Under Montana and its progeny, tribal court jurisdiction probably would depend on meeting one of the exceptions, perhaps the consensual relations test. But the Seneca courts refused to entertain any discussion of Montana. Why? Tribal constitutional and statutory law required conclusively that the tribal court take jurisdiction over the case because all claims arising on lands owned by the Seneca Nation, wherever they may be, were under the jurisdiction of the tribal court. Federal law, under Seneca law, simply did not and could not apply.
What would have happened if the nonmember business acquired a federal court order enjoining the tribal court proceedings? Likely, the Seneca courts would have been mandated by their own laws to ignore the federal court order. Would the federal court have held the judges in contempt if they continued, and perhaps even ordered the Seneca Nation to take possession of the nonmember property? Could the federal court jail the Seneca judges?
That’s just a taste of today’s talk. Enjoy the day!
Turtle Talk 