Plains Commerce Bank Redux — Federal Court Orders Exhaustion on Claims Not Decided by Supreme Court

Here are the materials in Plains Commerce Bank v. Long Family Land and Cattle Co. (D. S.D.):

DCT Order Requiring Tribal Court Exhaustion

Long Family Tribal Court Complaint

Plains Commerce Federal Court Complaint [plus tribal court docs]

Plains Commerce Motion for TRO

Plains Commerce Motion for Summary J

Long Family Opposition

Plains Commerce Reply

You may recall from Justice Pommersheim’s opinion from way back in the last decade that Plains Commerce only challenged the discrimination claim against it, not the bad faith or breach of contract claims. And since the money damages verdict was a general verdict, any of the surviving claims may support the verdict.

Case to Watch — Amerind v. Malaterre

The Eighth Circuit will be hearing Amerind v. Malaterre shortly. The appellant’s brief is here (amerind-appellant-brief). Our previous posting, with the district court materials and opinion, and the Turtle Mountain appellate court opinion is here. [Disclosure–I was a sitting appellate judge for the tribal court, but I did not participate in this matter.]

This case is a case to watch because it is a candidate for Supreme Court review under Montana v. United States. Maybe not a great candidate, but anything’s possible in the Roberts Court when it comes to tribal court jurisdiction over nonmembers.

Amerind is an insurance company chartered under federal law (according to my understanding, which could be wrong) that insures tribal housing. This case involves a fire at Turtle Mountain. Plaintiffs sued the Turtle Mountain Housing Authority, which was insured by Amerind. During the tribal court proceedings, the housing authority dropped out as a defendant, leaving Amerind as the insurance company and sole defendant. I suspect there is much confusion on the question of whether an insurance company can be a named defendant as a replacement for the real defendant (or alleged tortfeasor), since it is usually the insurance company that handles the defense and even hires the lawyers. Amerind, like any insurance company, is looking for an out.

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Wisconsin Supreme Court Justice Warns of Constitutional Problems in a Potential “Oliphant Fix”

The Honorable Patience Drake Roggensack has published “Plains Commerce Bank’s Potential Collision with the Expansion of Tribal Court Jurisdiction by Senate Bill 3320” in the University of Baltimore Law Review. She concludes:

Congress should deliberate carefully on Senate Bill 3320. While crime on tribal land is a real problem that must be addressed, increasing the subject matter jurisdiction of tribal courts has the potential to create additional problems of constitutional dimension. Therefore, even though Plains Commerce Bank involves the examination of subject matter jurisdiction in a civil law context, it provides a well-reasoned framework for significant constitutional concerns. Consideration of Plains Commerce Bank will aid the examination of Senate Bill 3320’s proposed changes in the subject matter jurisdiction of tribal courts in criminal cases. It should not be overlooked in Congress’ deliberative process.

ABA Business Journal on Plains Commerce Bank

Here is a short article advising farm lenders on the outcome of Plains Commerce Bank, authored by Greg Taylor — taylor-on-farming-lenders-in-indian-country

Here is the summary:

The Supreme Court’s 5-4 decision last term in Plains Commerce Bank v. Long Family Land and Cattle Co. was controversial in the sense that the Court was called upon to address two highly-charged legal issues: (1) tribal sovereignty and the ability to control matters that affect their lands and the treatment of its citizens, and, (2) the terms and conditions under which non-Indian banks and other businesses may be expected to resolve disputes arising from their dealings on the reservation. The majority opinion, written by Chief Justice Roberts, overturned a decision by the Eighth Circuit that held that a tribal court may entertain a discrimination claim over a non-tribe member who regularly conducts business on the reservation. In reaching its decision, the Court focused on the status of the ownership of the land in question. The Native American community was understandably disappointed by the result; there had been hopes that the case would provide an opportunity for the Supreme Court to reconsider its views on tribal sovereignty.

Wisconsin Supreme Court’s New Rule on Discretionary Transfer to Tribal Courts

Interesting development. Wisconsin, being a PL280 state, has issues with concurrent jurisdiction. Now a state court has discretion to stay a state court proceeding if a tribal court has concurrent jurisdiction, and transfer the case to tribal court, if other factors are met.

There were three dissenters, focusing on Plains Commerce Bank. Not sure why, given that the state court has to find concurrent jurisdiction before transferring anyway. What’s the harm if the state court finds jurisdiction consistent with federal common law?

wisconsin-sct-tribal-court-transfer-rule

Legal Times Coverage of the Plains Commerce Bank Argument

From the Legal Times (H/T Indianz):

The first Supreme Court oral argument Monday morning was all about Native American law and the jurisdiction of tribal courts. But Chief Justice John Roberts Jr. took the debate in an unexpected direction — across the Atlantic to southern Europe.

The issue in Plains Commerce Bank v. Long Family Land & Cattle was whether tribal courts have jurisdiction over a dispute between a nontribal bank and a company that is majority Indian-owned. More than 51 percent of the owners of the South Dakota ranching company in the case are members of the Cheyenne River Sioux Tribe, and, as such, the company was entitled to loan guarantees from the Bureau of Indian Affairs.

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First Impressions of the Plains Commerce Bank Oral Argument

I noticed several themes in the Plains Commerce Bank oral argument. In no particular order, here are my thoughts.

First, the regulatory vs. adjudicatory jurisdiction question. Justice Scalia jumped right out with the first question to the Bank’s counsel (Mr. Banker) about the Bank’s argument that the Montana 1 exception allows for tribal regulatory jurisdiction, but not adjudicatory jurisdiction. After that colloquy, it appeared the Bank’s argument was discarded, since, as Justices Souter, Ginsburg, and Scalia noted, (1) Montana 1 and the subsequent cases did not make that holding, and (2) the distinction does not appear in federal preemption cases where Congress regulates but does not expressly provide for adjudication.

Second, the critical question of how a tribe can have authority to regulate or adjudicate the rights of nonmembers who cannot vote in tribal elections (what Justice Kennedy usually refers to as the consent of the governed question) appears to have been a wash. Mr. Frederick faced these questions from Justices Kennedy and Ginsburg. His answer was that a nonmember can seek review of a tribal court decision in state and federal courts once the tribe/tribal entity/member/other plaintiff seeks enforcement of the tribal court decision in state court (and perhaps in federal courts, too). I thought this was a wash, because in the criminal context (i.e., Duro), the Court seemed to reject (or ignore) the argument that a criminal defendant could get habeas review of a criminal conviction. But in the civil context, the Court might not be so worried.

Third, the Chief Justice repeatedly questioned Mr. Frederick about how to find tribal law, strongly implying that it was unknowable or too difficult to locate. Of course, with the excellent record of the Cheyenne River Sioux’s tribal judiciary (that is, being published in the Indian Law Reporter all the time), that question didn’t have as much impact. Also, as Mr. Frederick noted, the CRST adopted the federal rules of civil procedure, something the Bank should be able to recognize. Justice Scalia and the Chief Justice worried that the tribal court would take the FRCP and interpret the Rules in accordance with tribal law, turning knowable domestic law into unknowable tribal law, but that didn’t seem to go very far.

Fourth, related somewhat to the previous point, the tricky question of whether the tribal jury verdict and award relied upon tribal common law. Here, I thought Mr. Frederick’s responses were nothing short of outstanding. The Bank all along has argued that the tribal jury and courts relied upon a tribal common law cause of action (discrimination, a tort), rather than a simple contract claim. The jury verdict noted that they ruled in favor of the Long Family on both claims, tort and contract. However, clearing away the debris, Mr. Frederick noted that the tribal court actually found that there could be no discrimination claim and that there were facts that supported the verdict on the contract claim alone. Moreover, Mr. Frederick noted that the tribal court made that ruling by relying on the FRCP. And, interestingly enough, the question of whether (under the FRCP) a federal court can find that a verdict supported by one allowable cause of action and one invalid cause of action has the federal circuits split. Naturally, the tribal court (following the FRCP) would have to pick one of the routes followed by the split circuits, and did so. Luckily, the tribal judge (BJ Jones, handling a complex case brilliantly) followed the Ninth Circuit’s rule (propounded by Judge Kozinski) that the entire verdict is allowable so long as the facts support the valid cause of action (that is, the verdict is still good even after kicking out the invalid cause of action).

Of course, all of this presumes that the tribal common law cause of action was invalid as applied to a nonmember, which Mr. Frederick correctly must have predicted the Court would think.

Fifth, at least a few Members of the Court (Souter, for one) thought this fact pattern might be a prototypical example of the Montana 1 exception on commercial consensual relations. That’s a good sign.

Sixth, and finally, it seems pretty clear that the Chief Justice and Justice Alito are not very sympathetic to tribal interests. The Chief Justice in particular pressed Mr. Frederick repeatedly on questions of tribal law, the racial character of Indian-owned corporations, and on the facts. Justice Alito made some half-hearted attempts to resurrect Mr. Banker’s argument, but by the end of Mr. Frederick’s argument, he almost seemed to be conceding to the Long Family, noting that the facts seemed to favor the Longs and asking Mr. Frederick for his recommendation on a general rule.

I’m still skeptical of the Long Family’s chances, given the Court’s composition, but from the transcript it appears the argument went well for the Long Family.

Plains Commerce Bank: US Solicitor General’s Office to Participate in Oral Argument

The Court granted the government’s motion to argue the case as amicus curiae, diving the respondent’s argument time. Here is the docket sheet.

Long Family and Amici Briefs Supporting Respondent Filed

All the bottom side briefs in the Plains Commerce Bank v. Long Family Land & Cattle Co. have been filed and are available at the NARF/NCAI Supreme Court Project website here.

The Bank’s reply brief is due shortly.