Turtle Talk

Here:

The panel decision in Tix v. Tix is (1) almost certainly wrong, (2) almost certainly will not be reheard en banc, (3) almost certainly will not be reviewed by SCOTUS (assuming a cert petition is filed), and (4) almost certainly inconsistent with the realities on the ground at Prairie Island.

First, the panel decision denying tribal jurisdiction over a divorce case involving tribal member and nonmember spouses where the children are tribal citizens, the large majority of the community property derives from the tribal government, and the nonmember spouse benefitted from the tribal member spouse’s eligibility for tribal governmental services (the tribe’s amicus brief makes this clear) for many years makes little common sense. There are no meaningful cases to the contrary on this issue, certainly no on-point Supreme Court precedents, so for the panel to claim to be bound by precedent is not persuasive. Moreover, the “precedents” cited are truly federal common law precedents, derivatives of the so-called Montana test that had no basis then or now in Constitutional text, Congressional Acts, or treaty law. Montana and its progeny are perhaps best understood as a bulwark against a tribe using its sovereignty to assume control over nonmember property or liberty without guaranteeing meaningful procedural protections (if Montana makes much sense at all). A textualist judge should be very concerned that Montana, at bottom, a judge-made rule rooted in factual assumptions (not facts) and policy preferences (in line with Justice Scalia’s admission that the Court just makes up Indian law based in its own policy preferences/political commitments), is a guiding principle for much of anything. And any judge should appreciate that Montana and its progeny are all absolutely distinguishable — none of those cases involved Prairie Band and improperly essentialize tribal nations.

Fundamentally, this is a tribal property rights case, where the typical roles in older tribal jurisdiction cases like Brendale (partly) and Plains Commerce are reversed. Prairie Band is a truly remarkable tribal nation, on the vanguard of outstanding modern tribal governance. There’s no hint of unfairness in the tribe’s laws and policies, no hint of tribal court procedural error, and a long history of hospitality toward the nonmember spouse in this matter. Maybe the nonmember has community property entitlements under state law, but the property at issue is inescapably tribal.

Second, the Eighth Circuit has become an outlier with the rest of the courts that have decided tribal civil jurisdiction cases over the last two decades, most of which were decided by the CA9. Most of the recent wave of cases finding tribal jurisdiction over nonmembers involve tribal or Indian property. The Ninth Circuit’s insurance cases involved tribal property. The Ninth Circuit’s nonmember trespass cases involved tribal property. The Ninth Circuit’s nonmember regulation cases involve individual or tribal Indian property. A recent South Dakota Supreme Court decision also involved a tribe’s property interest in a contract. The Court’s decision in US v Cooley even stepped over into tribal jurisdiction over nonmember liberty, although certainly in a narrow manner. The Court has had several opportunities to review most these cases and has declined all of them.

Third, more generally the Eighth Circuit has shown an extraordinary willingness to more or less summarily eradicate impact litigation victories by tribal interests in the lower courts. The circuit’s brief and simplistic dismissal of the Oglala and Rosebud Sioux Tribe’s civil rights suit against Rapid City judges, involving years of fact-finding and careful decisions of the district court finding outrageous human rights violations by local judges against Lakota families, was outright shocking, at least in part because a federal statute established federal policy favoring such suits. The circuit’s unnecessary vacature of a hard-fought and reasoned district court opinion in the Mille Lacs reservation boundary case was another shock. Same with the vacature of HCI’s injunction against Nebraska taxes. Most impactful given the lengthy and well-established history of racial bias by both Dakotas in seeking to limit Indian voting, the circuit has similarly shot down Indian country voting rights cases.

In fairness, the circuit has been faithful to the Court’s tribal exhaustion doctrine (though that is a far cry from affirming actual tribal jurisdiction over nonmembers). The circuit’s recent rejection of civil rights suits against a BIA cop who killed an innocent tribal member and Standing Rock protesters’ claims of police abuse is not inconsistent with other courts’ deference to the police (not that such deference to police violence is a good thing). One wonders if the circuit was stung by the reversal of its decision in Plains Commerce, but that was nearly 20 years ago. Time to move on.