Thursday, June 26, 2008

Plains Commerce comes down

This actually happened yesterday, but I was offline.

The most important Indian Law case of the year came down yesterday, and it was disappointingly but unsurprisingly ugly. In Plains Commerce Bank v Long, a 5-4 majority further restricted tribal court jurisdiction over non-Indians and non-Indian businesses on reservations. The supposed exception to the non-jurisdiction rule that jurisdiction can apply when the non-Indians enter into consensual commercial relations with the tribe or its members appears to be a dead letter.

As I discuss in this paper, the court has been narrowing tribal jurisdiction over non-members on reservation lands for some thirty years, and in counterproductive, destructive ways.

The decision was written by Roberts for the five conservatives. Ginsburg wrote for the dissent. (It's a "concurrence in part," but the part is not the important part.)

Bad news. More commentary to come.

In the meantime, see this post at Turtletalk.
In my view, there are several things to take from this ruling:

1.) We have been reassured that the Montana exceptions, while available in theory, will never be applied, and that tribes can forget about exercising any jurisdiction, no matter how great or small, over non-Indians on fee lands;

2.) We have also been reassured that non-Indian litigants are at a significant advantage against tribes and tribal citizens. Non-Indian parties can choose to litigate in tribal court, at a low-cost, and seek a positive outcome. If they get a desired outcome, it’s game over. If not, they get a second bite at a fresh apple, because they can take their claims to state or federal court and argue that the tribal court has no jurisdiction over them.

There's more. As I put it in the "Perversities" article linked to above:

After twenty years of Montana progeny, the exceptions appear vanishingly small. No unified Supreme Court majority has ever agreed that any regulation fell into either one. Circuit courts have followed the same general rule. The second exception has never been found to be satisfied in a court of appeals. Besides the Tenth Circuit’s finding in favor of the Navajos in Atkinson, later reversed, the consent exception has been triggered twice at the circuit court level, both times on the Ninth Circuit. A non-Indian filing a cross-claim against a fellow defendant in a reservation court does consent to that court’s jurisdiction in that case, and so falls under the first Montana exception —a seemingly minimal proposition that had nonetheless not been accepted by a panel of the court two years before —and a non-Indian contracting to carry out tribally-licensed bingo operations on a reservation is subject to the tribe’s bingo regulations. And the second exception is interpreted without any “aggregation analysis;” that is, the particular non-Indian’s particular activity must imperil the tribe, and it will not suffice to show that many non-Indians engaged in the activity many times over would do so. As one District Court judge asked rhetorically,

What does it mean to have the "ability to enact and be governed by its own laws" if the Navajo Nation cannot extend the scope of its own laws to protect the very lives of its own police officers on its own lands, and in its own courts? When does the exception for "conduct [that] threatens or has some direct effect on the political integrity, the economic security, or the health and welfare of the tribe" apply?

Yesterday "vanisingly small" got yet another step closer to "vanished."