There are two active cases out there involving Florida tribes that raise interesting questions relating to tribal courts and tribal immunity in federal and state courts. The two cases, Miccosukee Tribe v. Kraus-Anderson Constr. (which is currently pending before the Supreme Court — an invitation brief from the OSG may be forthcoming soon), and last week’s district court decision in Contour Spa at Hard Rock v. Seminole Tribe (see today’s post here).

It is our understanding that both tribes have unusual government structures (unusual by federal and state standards, and to most but not all tribes) in which the tribal legislature serves as the appellate court of final resort for the tribal judiciary. This is less common, we think, than it once was in Indian country, but a goodly number of tribes retain this structure. Many tribes in Michigan, by contrast, have very clear constitutional boundaries between the tribal political branches and the tribal courts, and the Harvard Project strongly recommends an independent judiciary as part of its prescription for solid economic growth in Indian country.

Tribes can and should establish whatever governmental structure they believe fits best for their communities, but there may be consequences to the tribal council-as-appellate court structure for tribes that have large commercial operations. Miccosukee, for example, is trying to enforce a tribal court judgment in federal court, and their tribal court judgment creditor is vehemently arguing that tribal jurisdiction is not viable because the tribal appellate court — the tribal council — is an interested party in the underlying suit. [That case likely will turn on whether the federal court had subject matter jurisdiction over the contract claim, however.] But if the Miccosukee Tribe or other tribes try to enforce tribal court judgments in state or federal courts, it could be very difficult to persuade a foreign court to enforce a judgment ultimately controlled by the tribal council.

Such bad government structure “facts” almost made terrible law in the Contour Spa case, where the district court gave a great deal of credence to the Tenth Circuit’s maligned Dry Creek Lodge exception (this exception allows federal courts to review tribal government action under the Indian Civil Rights Act under certain circumstances, such as the lack of a tribal court forum). Other than the actual Dry Creek Lodge case (which was “bad facts make bad law” exemplified), no other court has adopted it. And outside of the Tenth Circuit, few (if any) courts have even invoked it to see if it was worth adopting. But last week, in large part because the tribal legislature sits as the tribal court at Seminole (according to the opinion), the district court invoked Dry Creek Lodge and applied the facts of the Contour Spa contract breach claim to it. While the court did not, in the end, apply the “exception,” likely because the non-tribal party didn’t attempt to resolve the dispute in “tribal court,” the mere fact that it was willing to take the Dry Creek Lodge exception seriously is worth contemplating.

Two commercially successful tribes with no independent tribal judiciary. While nothing disastrous has occurred yet, there are commercial costs associated with this government structure. Maybe for these tribes, those costs are worth paying. But they should be taken seriously.