tribal court jurisdiction over nonmembers

Cherokee Nation Briefs Asserting Tribal Court Jurisdiction Over Drug Makers

Sarah M Donnelly

Here are the materials in the matter of McKesson Corp. et al. v. Hembree et al., 17-cv-00323 (D. Okla.):

Doc. 86 – Memorandum of Defendant Attorney General Todd Hembree in Opposition to Plaintiffs’ Motion for a Preliminary Injunction

Doc. 95 – Response of Judicial Officers to Motion for Preliminary Injunction

Complaint and motion previously posted here.

Tribal court complaint previously posted here.

Ninth Circuit Affirms Dismissal of Tort Claim against Rocky Boy’s

Matthew L.M. Fletcher

Here is the unpublished opinion in Eagleman v. Rocky Boy’s Chippewa-Cree Business Committee or Council.

Briefs here.

Lower court materials here.

Oral argument video here.

Tenth Circuit Dismisses Nonmember Challenge to Tribal Court Jurisdiction for Lack of Article III Standing (Nonmember Won on the Merits in Tribal Court)

Matthew L.M. Fletcher

Here is the unpublished opinion in Board of Education for Gallup-McKinley Schools v. Henderson.

Briefs and lower court materials here.

Drug Companies Challenge Cherokee Tribal Court Jurisdiction in Federal Court

Matthew L.M. Fletcher18 Comments

Here are the materials in McKesson Corp. v. Hembree (N.D. Okla.):

2 Complaint

13 Motion for Injunction

The tribal court complaint in Cherokee Nation of Oklahoma v. McKesson Corp. is here.

 

Ninth Circuit Affirms French v. Starr

Matthew L.M. Fletcher

Here is the unpublished order.

Prior posts here.

Federal Court Dismisses Dispute over Nonmember Property Boundary Line Dispute on Ute Reservation

Matthew L.M. Fletcher

Here are the materials in Austin v. Dietz (D. Utah):

12 Motion to Dismiss

12-2 Motion to Dismiss First Tribal Court Suit

12-3 Motion to Dismiss Second Tribal Court Suit

12-4 Tribal Court Panel Decision

13 Response

15 Reply

28 DCT Order

 

Impact of Dollar General Affirmance

Matthew L.M. Fletcher3 Comments

Huge win for the Mississippi Band of Choctaw Indians tribal court and most especially for the family of John Doe. The case must now return to the tribal court for a hearing on the merits. Presumably, DG will settle and we won’t hear any more about this case. One guesses, however, that if DG loses in a merits battle, it could AGAIN try the federal courts to see if they will hear another challenge to the tribe’s jurisdiction, perhaps more closely tied to something like punitive damages. Highly unlikely I would guess.

The battle waged at oral argument may be repeated again and again throughout Indian country. The constitutional issues are highly salient to the conservatives remaining on the Court. At least one thing we can thank DG for is making the best case for nonmembers on those constitutional issues.

The next Supreme Court Justice will decide whether tribes can assert civil jurisdiction over nonconsenting nonmembers. Meanwhile, tribal court plaintiffs will continue to cite to the Fifth Circuit’s opinion in DG, the Ninth Circuit’s opinion in Water Wheel, Merrion, and related cases. 

On a more speculative note, hopefully historians will figure out what was going on for the past six and a half months for all of this to end up in a 4-4 tie. One would have to guess that one or more Justices switched votes in the very recent past. Perhaps the Chief Justice assigned himself the majority after oral argument (he did write Plains Commerce and so has a track record), and struggled mightily to hold a majority for the past several months. Or perhaps Samantha Bee’s satire swayed someone at the last minute. 🙂

Noah Feldman on the Impact of Western Sky-Inspired Litigation on Tribal Sovereignty

Matthew L.M. Fletcher

Noah Feldman has posted “Tribes Don’t Get a Pass on Federal Law” on Bloomberg. HT How Appealing.

Despite the title (oh those editors!), tribal sovereignty isn’t mentioned until the last two paragraphs:

[Judge] Wilkinson tried to duck the deepest question in the case: Would it be all right to take federal law out of the picture altogether if Indian law applied instead? In this case, in practice, the recourse to tribal law would’ve been empty. But what if the Cheyenne River Sioux did have a robust arbitration mechanism in place or rules to guide an arbitration?

Under the decision, that shouldn’t matter: The court held that any agreement that rejects the application of federal law can’t be enforced. At the margin, this decision may actually reduce Indian tribes’ sovereignty. Whether it will help protect consumers from predatory lenders will depend on how other courts cite it.

These are good points. They could be tempered with a couple minor quibbles, mostly that the Cheyenne River Sioux Tribe, as I understand it, had nothing to do with Western Sky’s dispute resolution strategies. Perhaps anything the court said about that’s tribes sovereignty has to be dicta, and my reading of the opinion didn’t see anything like that (unlike the Seventh Circuit’s decision in Jackson).

This will be good fodder for consideration at the ASU e-Commerce meeting later this week….

 

Ed Gehres Dollar General Post-Argument Analysis

Matthew L.M. Fletcher

Here is “Argument analysis: Is tribal court civil jurisdiction over non-Indians truly a constitutional issue, or one of settled precedent?”

The best line (from a very good analysis):

The outcome of this case is tough to call after the argument. It looks to be a case that may be decided on a tight vote. But one thing is absolutely certain. Regardless of the outcome, sophisticated tribes and businesses will spend increasing amounts of energy at the bargaining table fashioning partnerships where consents to applicable law and forum are clear and express.

Ed Gehres Preview of the Dollar General Argument

Matthew L.M. Fletcher

Here is “Argument preview: The future of tribal courts — the power to adjudicate civil torts involving non-Indians,” on SCOTUSblog.

Dollar General briefs and other materials are here.