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Attorneys: Richard
Guest, Melody McCoy
Case Update
In a disappointing outcome, on June 25,
2008 a sharply divided United States
Supreme Court (5-4) held in Plains
Commerce Bank v. Long Family Land &
Cattle Company, that the Cheyenne River
Sioux Tribal Court does not have
jurisdiction over a claim by tribal
members Ronnie and Lila Long that
Plains Commerce Bank tortiously
discriminated against them by selling fee
lands (privately owned pursuant to acts
of Congress) within the Cheyenne River
Sioux Reservation to non-Indians on
terms more favorable than the Bank
offered to the Longs. The Native
American Rights Fund was part of the
Longs' co-counsel team in the Supreme
Court.
In a hyper-technical distinction which the
dissent found unpersuasive, Chief
Justice Roberts, joined by Justices,
Scalia, Kennedy, Thomas and Alito,
distinguished between sales of fee land
by non-Indians on the Reservation, over
which the majority opined that Tribes
have no regulatory authority, and
activities by non-Indians on fee lands
which may implicate a Tribe's sovereign
interests and be subject to tribal
regulation. According to the majority,
since the discrimination claim "is tied
specifically to the sale of the fee land" –
land alienated from tribal trust land and
removed from tribal control – the Tribe
has no authority to regulate the terms
upon which the land can be sold, even if
those terms are discriminatory and favor
non-Indians over Indians. Lacking
authority to regulate fee land sales, the
Tribe has no adjudicatory authority over
claims based on such sales since a
Tribe's adjudicatory authority cannot
exceed its regulatory authority.
Interestingly, however, because the
majority expressly made clear that it was
not addressing whether the Tribal Court
had jurisdiction over the Longs' breach of
contract and bad faith claims (the Bank
had not appealed those claims), that
leaves the Tribal Court jury award of
$750,000 to the Longs possibly open to
further proceedings.
Justice Ginsberg, joined by Justices
Stevens, Souter and Breyer, dissented,
finding the majority's position
"perplexing." If the tribal court has
jurisdiction over the Longs' breach of
contract and bad faith claims –"that the
Bank has broken its promise or acted
deceptively in the land-financing
transactions at issue" – the dissent was
hard pressed to understand why the Tribe
could not likewise enforce its laws
prohibiting discrimination arising out of
those same transactions. In the view of
the dissent, "the Longs case, at heart, is
not about ‘the sale of fee land to non-
Indian individuals,' ‘[r]ather, this case is
about the power of the Tribe to hold
nonmembers like the Bank to a minimum
standard of fairness when they voluntarily
deal with tribal members.'"
Plains Commerce Bank is the first Indian
law case since the addition of Chief
Justice Roberts and Justice Alito to the
Court. Although it is only one case, the
opinion is disturbing in its resort to
technicalities to chip away at tribal
sovereignty and its willingness to ignore
the Bank's lengthy and extensive
dealings on the Reservation, including its
successful use of the Tribal Court as a
plaintiff in numerous other cases against
tribe members. It is unclear what the
long-term effects of the decision will be,
but it is not a promising beginning to the
Robert's era.
Case materials at the Tribal
Supreme Court Project.
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