The questions presented are:
Whether the State of Washington Cigarette Tax laws are federally preempted and inapplicable to an American Indian motor carrier hauling cigarettes between Indian reservations in Interstate and Indian Commerce.
Whether the laws of the State of Washington can regulate an enrolled tribal Indian shipping goods between a federally recognized Indian Reservation in Idaho to his business on the reservation of his membership located in the State of Washington.
A memorandum acknowledging all of the issues federal courts have created regarding tribal jurisdiction on tribal lands, and tribal jurisdiction over non-members. However, in the court’s opinion, the judge demonstrates the fundamental problem with arguing for tribal jurisdiction over non-members in federal courts at this point:
As this court previously explained, at least where tribal authority over non-Indians is concerned, the Supreme Court discarded the elegant simplicity of Cohen’s analysis in favor of an amorphous legal standard that finds its source not in treaty or statute, but in abstract notions of intergovernmental dependency and subservience.
. . .
That plaintiffs counsel fundamentally disagrees with the Supreme Court’s reading of the pertinent treaties and statutes does not deprive the Court’s case law of its binding precedential effect upon the lower federal courts, including the Tenth Circuit and this court. Nor may we overrule or simply ignore what the Supreme Court has said.
. . .
The plaintiffs may well dispute the rule and reasoning of the Supreme Court’s “pathmarking case, Montana v. United States, 450 U.S. 544, 564-65, 101 S. Ct. 1245, 67 L. Ed. 2d 493 (1981),” and the later cases that follow Montana, such as Nevada v. Hicks, 533 U.S. 353, 121 S. Ct. 2304, 150 L. Ed. 2d 398 (2001), and most recently, Plains Commerce Bank. 7 A number of scholars have penned incisive critiques of the Court’s implied diminishment of tribal civil and criminal jurisdiction over non-Indians. 8 In this case, plaintiffs’ counsel has made a credible showing that members of Congress and the Supreme Court may not be on the same page as far as the role and powers of Indian tribal courts are concerned, 9 and counsel appears entirely correct in asserting that “nothing Congress or the Executive have done [has] limited Navajo Court authority over anyone, Indian or non-Indian, [*32] for injurious acts occurring within the Navajo Nation[‘s] exterior borders.” (Pltfs’ Obj. at 22.) Nor have the plaintiffs strayed far afield in arguing the importance of giving effect to Navajo tort law as a vital aspect of tribal self-government. See, e.g., Smith v. Salish Kootenai College, 434 F.3d 1127, 1140 (9th Cir. 2006) (en banc) (“The Tribes’ system of tort is an important means by which the Tribes regulate the domestic and commercial relations of its members.”). And an argument may well be made that whatever its merits in its own context, Montana‘s rule and reasoning should find no application at all to the differing historical and legal context of the Navajo Nation and its reservation. 10
But [emphasis added] having made the strategic choice to pursue enforcement of the Navajo court orders in federal court before the tribal court proceedings had been fully concluded, plaintiffs Singer, Riggs and Dickson raised the “federal question” of the extent of tribal jurisdiction over the non-Indian defendants in a federal forum, short-circuiting the usual exhaustion of Navajo tribal remedies, including review by the Navajo Supreme Court. 11 Having been raised in this forum, the jurisdictional question was ultimately decided by the court of appeals, with an outcome that was adverse to the plaintiffs.
The rest of our MacArthur v. San Juan County materials can be found here. The opinion here indicates some of the frustration on both sides regarding the Supreme Court’s recent legacy of federal Indian law cases. MacArthur v. San Juan County, U.S. District Court
I wanted to avoid posting my thoughts here yesterday, so as to allow myself some time to digest this opinion. The opinion is still as disappointing 24 hours later as when I initially read it.
The Supreme Court has essentially declared Indian tribes to be nothing more than glorified country clubs, with their authority “confined to managing tribal land, protect[ing] tribal self-government, and control[ling] internal relations.” Just like your local country club, tribes can only determine who can come on the property, who can be a member, and who can be in charge. Chief Justice Roberts reached way back to the Marshall trilogy of cases – the seminal cases in U.S. Indian jurisprudence – to support this proposition. Our supposed restrained, originalist Chief Justice managed to turn Worcester v. Georgia into a rule that Tribes are “confined to managing tribal land.” (see citation on page 16 of the Court’s opinion).
In addition to turning Worcester on its head, Roberts and the Majority shamelessly glossed over important facts in the case that were inconvenient to their outcome-based decision, stating: “there is no reason the Bank should have anticipated that its general business dealings with [the Longs] would permit the Tribe to regulate the Bank’s sale of land it owned in fee simple.” This despite the fact that the Bank was a regular litigant in the Tribe’s court, and even availed itself of the Tribal Court in this case! In her dissent, Justice Ginsburg pointed out this fact to the Majority, stating that the Bank “is no unwitting outsider forced to litigate under unfamiliar rules and procedures in tribal court.”
A jury of the trial court of the Tribe ruled that the Bank had unfairly discriminated against the Long family, and awarded damages in their favor. Roberts stated that this somehow acted as an invalid restraint on the Bank’s right to freely sell the land to which it held title. I’m still trying to wrap my head around that one.
In my view, there are several things to take from this ruling:
1.) We have been reassured that the Montana exceptions, while available in theory, will never be applied, and that tribes can forget about exercising any jurisdiction, no matter how great or small, over non-Indians on fee lands;
2.) We have also been reassured that non-Indian litigants are at a significant advantage against tribes and tribal citizens. Non-Indian parties can choose to litigate in tribal court, at a low-cost, and seek a positive outcome. If they get a desired outcome, it’s game over. If not, they get a second bite at a fresh apple, because they can take their claims to state or federal court and argue that the tribal court has no jurisdiction over them.
3.) The Roberts Court is going to be more of the same (which isn’t much of a surprise, given that he is a Rehnquist disciple). Just as his mentor Rehnquist in Oliphant, Roberts deliberately misstates the law (see his Worcester reference) and glosses over inconvenient facts to reach a predetermined outcome; and,
4.) Roberts seems to have endorsed the commonly held belief that “we stole this land fair and square.” See this passage on page 22 of his opinion:
The Cheyenne River Sioux Tribe lost the authority to restrain the sale of fee simple parcels inside their borders when the land was sold as part of the 1908 Allotment Act. Nothing in Montana gives it back.
I will leave it to Matthew, Wenona, and Kate to give a more scholarly review of this ridiculous opinion.
The 40 page opinion is available here:
Plains Commerce Bank v. Long Family Land & Cattle
Additional materials regarding the case can be found at here.
We’ll post the opinion as soon as it’s available.
From SCOTUS blog:
The Court has released the opinion in Plains Commerce v. Long Family Land and Cattle (07-411), on whether Indian tribal courts have authority to decide civil lawsuits involving business dealings between companies owned by members of the tribe and banks that own land on a reservation, but are not themselves owned by a tribal member. The ruling below, which found for the tribal members, is reversed.
Chief Justice Roberts wrote the opinion. Justice Ginsburg dissented, joined by Justices Stevens, Souter and Breyer. We will provide a link to the decision as soon as it is available.
The Longs lost 5-4, opinion by Roberts, dissent by Ginsberg was joined by Stevens, Souter, and Breyer.
Exxon wins. According to Tom Goldstein, the Court found the punitive damages to be excessive, that they should be equal to the compensatory damages.
The opinion is available here, via SCOTUSblog.
The Supreme Court released its opinion in Republic of Philippines v. Pimentel, just a few minutes ago. The case involved a claim under the Foreign Sovereign Immunities Act and FRCP 19 that a human rights claim involving the Philippines should be dismissed for failure to join an indispensable party (a sovereign entity with sovereign immunity). The briefings featured several Indian law cases decided by the lower courts.
The Supreme Court’s opinion highlighted one of these opinions, Wichita and Affiliated Tribes v. Hodel, 788 F.2d 765 (D.C. Cir. 1986). This is one of the strongest pro-tribal sovereign opinions on this question ever decided. Good deal, despite the bad outcome for human rights claimants in general.
Indianz reports that a plethora of lawsuits will be filed against Interior’s decision to take land into trust for the Oneida Indian Nation of New York.
Bear in mind that (in my limited understanding) much of the land in question here is the same land in question in the City of Sherrill v. Oneida Indian Nation case from 2005. Unfortunately (we now know), the Nation sought to avoid state and local taxation and regulation on that land when it was held in fee simple under federal Indian law principles. Those principles supported the OIN, but only as far as the Supreme Court, which reversed.
Now the OIN is pursuing the path they (perhaps, in hindsight) should have pursued all along — asking the Secretary to take the land into trust. So far, they have been successful, which was no easy feat given the mountain of documentation required to convince the Secretary, but several years have passed since this started, and there might be a new legal climate on the constitutionality of the fee to trust statute, 25 U.S.C. 465.
Perhaps as early as next fall, the Supreme Court might rule in Carcieri v. Kempthorne that the Secretary has no authority to take land into trust for tribes not recognized in 1934. After that, the Oneida case is the kind of case that the Supreme Court might be willing to use to decide whether or not the fee to trust statute is unconstitutional on its face. I would be surprised, because a successful challenge to the fee to trust statute likely would require the Court to go in depth into its nondelegation doctrine and/or Tenth Amendment jurisprudence, areas in which the Roberts Court has not expressed much interest.
We’ll see.
Here, the Oklahoma Tax Commission is seeking review of a CA10 decision allowing a suit brought by the Osage Nation to proceed over sovereign immunity objections. Here is our post about the CA10 decision, with briefs and other materials. And here is the cert petition.
Here are the questions presented (from the petition):
1. May federal courts employ the doctrine of Ex parte Young, 209 U.S. 123 (1908), to permit suits by Indian tribes, otherwise barred by state sovereign immunity, that seek to establish sovereignty and jurisdiction over historical reservations, without taking into consideration the substantial impact of the relief on the sovereignty and jurisdiction long-exercised over such lands by states?
2. In view of this Court’s ruling in Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997), and other decisions, may a federal court allow an Indian tribe’s suit – otherwise barred by the Eleventh Amendment – to proceed against state officers under the so-called “straightforward inquiry” used to determine the application of the Ex parte Young exception, when the relief would divest a state of substantial and long-exercised civil and criminal jurisdiction over its largest county?
3. Does a suit by an Indian tribe seeking a judicial determination that its historical reservation “remains” a present-day reservation involve the type of retrospective relief that cannot be pursued against state officers under the Ex parte Young exception to state sovereign immunity?
Turtle Talk 
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