tribal court jurisdiction

Federal Court Dismisses Gustafson v. Poitra Dispute (Again)

Matthew L.M. Fletcher

Here are the materials in Gustafson v. Poitra (D. N.D.):

19 Motion to Dismiss

23 Response

34 DCT Order

An excerpt:

The Court notes the equities clearly favor the Gustafsons, and the Court is sympathetic to the jurisdictional dilemma they find themselves in. The juvenile behavior and attitude of the Poitras that triggered the need for the issuance of the TRO in October 2012 is difficult for any reasonable person to understand. However, the plaintiffs cannot use the Declaratory Judgment Act as a vehicle to resolve a multitude of long-standing disputes which neither raise a federal question nor bear any relationship to a lawsuit over which the Court would have jurisdiction.

We have posted on the multiple suits in this long-running dispute here, here, and here.

En Banc Petition in Jackson v. Payday Financial LLC

Matthew L.M. Fletcher

Here:

En banc Petition

Clarkson Amicus Brief

Panel materials here.

Tribal Court Materials in Competing State/Tribal Court Actions in North Dakota Oil Transport Contract Controversies

Matthew L.M. Fletcher

Here are the materials in the Fort Berthold Tribal Court action, TJMD LLP v. Dakota Petroleum Transport Solutions LLC:

DOCS-#390943-v1-defendants__motion_to_dismiss

DOCS-#390944-v1-defendants__brief_-_motion_to_dismiss

DOCS-#390945-v1-defendants__appendix_-_motion_to_dismiss

Plaintiff’s Brief in Opposition to Defendants Motion to Dismiss for Lack of Non-Trail Member Jur

Affidavit of Virgil White Owl

DOCS-#407079-v1-PDF_2013_02_06_2nd_Aff_Claypool

DOCS-#407080-v1-PDF_2013_02_06_Def_Reply_Brief_Support_Motion_Dismiss

DOCS-#440826-v1-PDF_interim_order_on_jurisdiction

Prior post here.

Materials in Competing State/Tribal Court Actions in North Dakota Oil Transport Contract Controversies

Matthew L.M. Fletcher1 Comment

In the most recent Bench & Bar (Minnesota State Bar Journal) article “Boomtown: Risks and Rewards in the Peace Garden State,” Kristin Rowell writes about her experiences in litigating contract claims in both Fort Berthold Tribal Court and North Dakota’s Montrail County District Court where the courts reach opposition conclusions on the same legal question. An excerpt:

In October 2012, I commenced litigation on behalf of my client against four defendants companies.  Two of the companies were organized under the laws of the state of Minnesota, one of the companies was organized under the laws of Nevada, and the other company was organized under the laws of Florida.  All of these out-of-state residents were conducting business with my client on the Fort Berthold Indian Reservation in New Town, North Dakota, as a part of the booming oil industry.  (Another fascinating aspect of North Dakota’s judicial landscape is that there are several independent tribal courts separate from the state and federal court systems.  An in-depth look at North Dakota tribal courts will have to be saved for another article.)  My client is a member of the federally recognized Mandan, Hidatsa, and Arikara Native American Nations, also known collectively as the “MHA Nation” or the “Three Affiliated Tribes.”  For a variety of reasons, my client chose to commence its case in Fort Berthold District (Tribal) Court.

In response to the complaint, the four defendants moved to dismiss my client’s case for “lack of nonmember tribal court jurisdiction.”  We opposed the motion and explained to the tribal court judge that it could and should retain jurisdiction under Montana v. United States, 450 U.S. 544 (1981), the Supreme Court case that gave tribal courts the authority to regulate the activities of nonmembers on reservation land owned in fee by non-Indians.  Under Montana, tribal courts can regulate the activities of nonmembers (and in turn, assert jurisdiction over nonmembers in tribal court) where: (1) the nonmembers “enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements,” or (2) the nonmembers’ “conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”15  If the circumstances of a case fit either exception, then the tribal court has jurisdiction over the dispute.16

We argued that the court had jurisdiction over the key non-Indian defendant because we met both Montana exceptions with respect to that defendant.  The focus of our analysis was that the defendant contracted with my client so the first Montana exception was easily met.  Defendants argued that because my client is a company and not a human, it could not be a “member” of the tribe for jurisdictional purposes.  We argued that my client, a limited liability partnership, was owned by an Indian, which meant that it was a “member” of the tribe for jurisdictional purposes.

The Fort Berthold Tribal Court agreed with us.  The court’s decision turned on the novel and narrow legal issue of whether a limited liability partnership was more akin to a limited liability company or a corporation for jurisdictional purposes.  We argued that the United States Supreme Court has held that the citizenship of a limited partnership for purposes of diversity jurisdiction is determined according to the citizenship of its limited and general partners, citing Carden v. Arkoma Associates, 494 U.S. 185, 195-96 (1990).  Several courts have held that this holds true for limited liability partnerships too.17  Defendants argued that the limited liability partnership was more analogous to a corporation, should be treated as a separate legal “person,” and cited cases in which the courts held that a corporate person could not be a “member” of an Indian tribe.

We have been proceeding in the tribal court ever since and we will eventually have a trial.  But there is a conundrum.  While the other side’s motion to dismiss was under advisement in tribal court, the contracting party defendant in the tribal court action started an action against my client in North Dakota state court related to alleged oil spills at the exact property they are fighting about in tribal court.  My client moved to dismiss or transfer the state court case, and the same issues were argued to the state court judge that had just been decided in tribal court.  The short story is that the state court judge disagreed with the tribal court judge and retained jurisdiction over the second case.  In other words, we now have two cases pending in two courts involving the same two parties and the same contract.  Suffice it to say that we are working hard to resolve both.

The materials in the Montrail County matter (Dakota Petroleum Transport Solutions LLC v. TJMD LLP are here:

DOCS-#424808-v1-PDF_notice_of_motion_&_motion_to_dismiss_or_transfer

DOCS-#424809-v1-PDF_Mem_Supp_Motion_Transfer_Venue_and_Dismiss

DOCS-#424810-v1-pdf_KBR_Affidavit_motion_to_dismiss_or_transfer

DOCS-#424811-v1-PDF_proposed_order_motion_to_dismiss_or_transfer

DOCS-#430259-v1-pdf_Dak_Pet_response_brief_to_motion_to_dismiss

DOCS-#430260-v1-PDF_exs_to_Dak_Pet_response_brief

DOCS-#430276-v1-PDF_authorities_cited_DP_response_motion_to_dismiss

DOCS-#431865-v1-PDF_Reply_Mem_Supp_Motion_to_Dismiss_or_Transfer

DOCS-#431866-v1-PDF_Supp_Aff_KBR_motion_to_dismiss_or_transfer

DOCS-#449184-v1-Order_denying_motion_to_dismiss_transfer_(mountrail)

Materials in the parallel tribal court litigation TJMD LLP v. Dakota Petroleum Transport Solutions LLC are included as exhibits to these pleadings. We will post those materials in a separate post.

Seventh Circuit Rules against Western Sky in Jackson v. Payday Financial LLC — A Warning to Indian Country

Matthew L.M. Fletcher5 Comments

Here is the opinion:

CA7 Opinion

Based on these findings, we now conclude that the Plaintiffs’ action should not have been dismissed because the arbitral mechanism specified in the agreement is illusory. We also cannot accept the Loan Entities’ alternative argument for upholding the district court’s dismissal: that the loan documents require that any litigation be conducted by a tribal court on the Cheyenne River Sioux Tribe Reservation. As the Supreme Court has explained, most recently in Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008), tribal courts have a unique, limited jurisdiction that does not extend generally to the regulation of nontribal members whose actions do not implicate the sovereignty of the tribe or the regulation of tribal lands. The Loan Entities have not established a colorable claim of tribal jurisdiction, and, therefore, exhaustion in tribal courts is not required. Accordingly, we cannot uphold the district court’s dismissal on this alternative basis.

Primary briefs here. Supplemental briefs here.

As should be expected by this time, payday lending in Indian country is creating bad law for tribal interests. This case involved a privately owned payday lending operation. Tribally-owned operations will be scrambling to distinguish themselves from this case. Particularly troublesome is the holding and (hopefully) dicta from the opinion that suggests tribal courts have no jurisdiction involving off-reservation lending operations, even though the operation is based in Indian country and even though the lending instrument includes a forum selection clause naming a tribal forum.

My initial recommendations to tribal leaders and counsel — shut down on-reservation-based payday lending operations operated privately immediately. My second recommendation is to ensure that tribal regulations of tribally owned payday lending operations are independent and robust. In other words, tribes must be able to withstand the kind of searching inquiry into their regulatory scheme that the federal court did in this case. Can tribal sovereign lenders say that?

Navajo SCT Rules that Navajo Courts Retain Jurisdiction over Navajo Children Residing Off-Reservation

Matthew L.M. Fletcher

Here is the opinion in Nouri v. Crownpoint Family Court. The court’s syllabus:

The Supreme Court issues its Opinion and Order Denying Writ of Prohibition regarding competing child custody actions filed by parents in Navajo and state courts. Jurisdiction of the Navajo court over the child was challenged because the child who formerly resided in Fort Defiance now resides with her mother in Albuquerque. The Court affirms that the Nation has jurisdiction over Navajo children wherever they may reside, which arises from inherent sovereignty as acknowledged at 7 N.N.C. 253(B). The Court further affirms that the Álchíní Bi Beehaz’áannii Act is not the basis for jurisdiction over privately filed family actions in which parents are legally capable of making decisions for their children.

Federal Court Finds No Jurisdiction for Itself in Tribal Guardianship Proceeding

Kate Fort2 Comments

Here.

Section 1914 does not confer jurisdiction upon this court because the guardianship action at issue here was not decided under State law. Rather, Plaintiff is challenging an Indian tribal court’s decision to place an Indian child in foster care. Plaintiff does not allege that the tribal court lacked jurisdiction to make a custody determination or otherwise violated his due process or equal protection rights; rather, he merely alleges that its decision violated the Indian Child Welfare Act. However, the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963, gives Indian tribes jurisdiction to determine custody of Indian children. See DeMent v. Oglala Sioux Tribal Court, 874 F.2d 510, 514 (8th Cir. 1989). The Indian Child Welfare Act does not confer jurisdiction upon this court to review the propriety of the tribal court’s guardianship decision in this case.

North Dakota Supreme Court Decides Child Support Jurisdiction Case

Kate Fort

Here.

[¶15] B.B. argues that because custody has already been determined in the tribal court, the tribe has continuing and exclusive jurisdiction over paternity and support.

[¶16] We specifically held in Kelly, 2009 ND 20, ¶ 22, 759 N.W.2d 721, that custody can be bifurcated from other proceedings in marriage. “Thus, even if the district court determines that the reservation is the child’s home state and that the tribal court therefore has jurisdiction over child custody, the district court retains concurrent jurisdiction over the remaining incidents of the marriage and may choose to exercise that jurisdiction . . . .” Id. Although B.B. and A.T.H. never married, the bifurcation principle of Kelly nevertheless applies in this case because multiple parties and jurisdictions are involved and each has an interest in the outcome of the proceedings. We conclude that under Kelly, the paternity and support claims brought against B.B. in state court can be bifurcated from the custody action brought in Standing Rock Sioux Tribal Court.

[¶17] Recognizing that paternity and support claims are divisible from custody determinations, and in view of the factual similarities between this case and Doe, we conclude the state court has subject matter jurisdiction in this case.

Fletcher: “A Unifying Theory of Tribal Civil Jurisdiction”

Matthew L.M. Fletcher

Please see “A Unifying Theory of Tribal Civil Jurisdiction” on SSRN. Here is the abstract:

This paper addresses one of the most dynamic and useful areas of American Indian law. I situate my arguments between two competing and intractable theories dominating the field – the consent theory, which limits tribal jurisdiction to those who expressly consent to tribal governance; and the territory theory, which expands tribal jurisdiction to anyone in Indian country. The consent theory unnecessarily undercuts tribal authority on Indian lands, assuming without evidence that nonconsenters will not receive a fair shake in tribal forums. Meanwhile, the territory theory unnecessarily exposes nonconsenters to Indian authority on non-Indian owned land, where tribal power is weakest and least justified.

I propose a simpler solution that unites the two theories and brings realism to the discussion. Where activities occur on Indian lands, tribal jurisdiction should be presumed subject to a simple fairness test any court could conduct, but that is currently (and ironically) barred by the Supreme Court. The reality is that tribal governments are already successfully exercising this power, but the common law is lax in its recognition of tribal governance, generating unpredictability and confusion.

Substantive comments welcome.

Katherine Florey on Tribal Court Jurisdiction

Matthew L.M. Fletcher

Katherine Florey has published “Beyond Uniqueness: Reimagining Tribal Courts’ Jurisdiction” (PDF) in the California Law Review. The abstract:

If there is one point about tribal status that the Supreme Court has stressed for decades, if not centuries, it is the notion that tribes as political entities are utterly one of a kind. This is to some extent reasonable; tribes, unlike other governments, have suffered the painful history of colonial conquest, making some distinctive treatment eminently justifiable. But recent developments have demonstrated that, for many tribes, uniqueness has its disadvantages. In the past few decades, the Supreme Court has undertaken a near-complete dismantling of tribal civil jurisdiction over nonmembers. Under current law, tribes have virtually no authority to permit nonmembers to be haled into tribal courts-even when nonmembers have significant ties to the tribe and have come onto the reservation for personal gain. Tribal uniqueness has thus come to include tribes’ singular inability to exercise jurisdiction over nonmembers, despite the reality that people and commerce move freely across tribal and nontribal land. 

This is a mistake. Tribal court jurisdiction has much in common with broader notions of personal jurisdiction, and the Court’s failure to recognize this commonality limits and distorts its analysis. Indeed, no good reason exists why current personal jurisdiction doctrines could not be adapted to encompass the issues that tribal court jurisdiction presents; that is true even if one concedes various premises of the Court’s opinions, such as the idea that it is inherently burdensome in most cases for nonmembers to defend in tribal court. Personal jurisdiction doctrine is perfectly suited to addressing the often-complex fact patterns that characterize modern disputes involving Indian country because minimum contacts analysis allows courts to take a nuanced, flexible view of the degree of connection between the defendant and the forum. For these reasons, this Article argues that limitations on tribal court jurisdiction over nonmembers should be recharacterized as limits on personal jurisdiction. This would both harmonize tribal courts’ jurisdiction with that of federal and state courts, and do a better job than current doctrine in balancing the legitimate interests of both tribes and nonmember defendants.