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.