Blog Mirror: Traveling With the Ninth Cavalry

Traveling With the Ninth Cavalry

Monday at the Bar: Courthouses of the West: A New Wind River Tribal Judicial Center?

Courthouses of the West: A New Wind River Tribal Judicial Center?:

A New Wind River Tribal Judicial Center?

 The current Wind River Tribal Court.

We wrote about this courthouse quite some time ago, here:

Courthouses of the West: Wind River Indian Reservation Tribal Court: This is the Wind River Indian Reservation Tribal Court, which also houses various other law related facilities. The court is located in F...

An interesting article in the Star Tribune reports that  representatives of the Tribal judicial system appeared in front of a committee of the Wyoming legislature this past week to seek support, which they received, for a new judicial center.  The Federal government will have to provide the funding, but state support can't hurt.



The jail is grossly overcrowded and apparently the new three judge panel for the Court is enforcing the criminal law much more rigorously than in the past.  The deficiencies of the courthouse, which includes the jail and the headquarters for the police department, are showing themselves.  About three times as many prisoners are housed there on a daily basis than it was built for.



I can attest personally that the courtroom is quite inadequate.  I hope they receive the funding they're seeking, and soon.

Railhead: Burlington Northern, Wind River Canyon, Wyoming.

From our companion blog; Railhead: Burlington Northern, Wind River Canyon, Wyoming.:

These are photographs of the Burlington Northern as it runs through the Wind River Canyon, or rather at the head of the canyon.   The canyon is fairly long and the rail line, and the State highway, run throughout its length.

 

Why is this reposted here?  

Well, because of the juxtaposition of the old means of transportation (once new), now limited around here to carrying freight, and the new one. 

Missing and Murdered Indigenous Women and Girls Awareness Day. May 5, 2018.

From the Governor's office:

Missing and Murdered Indigenous Women and Girls Awareness Day

CHEYENNE, Wyo. –A proclamation recognizing May 5, 2018 as Missing and Murdered Indigenous Women and Girls Awareness Day was signed by Chairman Clint Wagon of the Eastern Shoshone Business Council and Roy Brown of the Northern Arapaho Business Council. The proclamation was distributed across the State. Governor Matt Mead joins the Chairmen of the Tribes recognizing the importance of raising public awareness of this critical issue.

Railhead: Transportation juxtaposition

I recently posted this on our companion blog, Railhead: Transportation juxtaposition:

I noted in the text for that;

BNSF rail tunnels on left, Wyoming Highway Department tunnels on the right.

Wind River Canyon, Wyoming.

What I didn't note is how emblematic of modern local transportation this is.  The rail line on the left, running from Thermopolis to Riverton Wyoming, is spectacular in this stretch, but it carries only freight, like every other Wyoming rail line. At one time, that wasn't true.  It carried passengers as well. But that was decades ago.

The highway on the right is also spectacular, one of Wyoming's best in my views.  The replacement for the means of conveyance on the left, although in fairness I'm sure the road is quite old.  I don't know when the highway tunnels were put in.

Movies In History: Wind River

I often dread watching modern movies set in Wyoming (I tend to give the older ones a pass) as they get things so wrong.  And, of course, as a local, let alone being a native at that, I no doubt look at anything set in Wyoming with a highly critical eye.

 

This is the Wind River Indian Reservation Tribal Court in Ft. Washakie which also houses various other law related facilities including the police department and the jail. 

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And that would be all the more the case here as, while I rarely mention it here, the Reservation is one of the places where I'm licensed to practice law.  I've accordingly spent a fair amount of time on the Reservation, although not in the Reservation's back country.

 War memorial at Ft. Washakie to residents of the Reservation who lost their lives in the service during World War Two.  This memorial is on what was once the parade ground when Ft. Washakie, the seat of the Tribal governments* was an army post.

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So, when a movie is set there, I"m prepared, I'm afraid, to eye it pretty closely.  And that means I'm sort of set up to dislike it.
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That didn't happen here at all.
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Indeed, not only do I like the movie, but I'm amazed by how much about the state and the Reservation they got right.  This is, indeed, a really rare film about modern Wyoming as it is mostly correct in all sorts of details.

 

Post office on St. Stephen's Mission, Wind River Reservation.

Okay, to just summarize the film a tad, this movie is a murder mystery.  It starts off when Animal Damage Control agent Cory Lambert is called to the Reservation to track mountain lions that have killed a steer belonging to his (ex) father in law, who is an Indian living on the Reservation.  In tracking the cats, he finds the body of an Indian girl he knows is the high country. The Tribal Police respond and a female FBI agent responds.  The development of the plot and the clash of cultures, a three way clash, ensues.

There's a lot that could go wrong with a plot like this from a local's prospective.  Most of those things didn't go wrong on the other hand, but actually went quite right.

From the prospective of our reviews, we tend to look at the history of a thing, the culture of the setting and material details.  We know that this is a contemporary movie, not a historical drama, but we're taking the same approach here and this film does really well.

Let's start with the "history" of the story, if you will.

 Former Army stable, now BIA structure, on Ft. Washakie.

Crime, particularly crime associated with alcohol and drugs, is a huge problem on the Reservation, as Reservation authorities themselves will freely admit.  In fact, the Wind River Reservation is "dry" in that alcohol sales are banned on the Reservation, an act that the Tribal Council took quite a few years ago   Drugs are also a big problem on the Reservation and just a few years ago a fairly large DCI bust occurred there.  And some big occasional acts of violence occur there as well.

The film mentions at one point how many Indian women simply go missing in the United States and that no statistics on this are kept.  I was unaware of that, but I am aware of one case here locally in which an Indian woman's body was found by a sheep rancher I knew and it took years, and a very interested coroner, to identify the poor woman's body. She'd been murdered and left out in the prairie.  So much of this feels very familiar.

One thing, and not a good thing, that feels very familiar in the film, which is associated with that, is the haphazard fashion in which so many young people in this state are left to live their lives.  There's a comment early on about the appropriateness of an 18 year old girl being left to her own devices, but that's not so much an Indian thing here as it is a cultural thing.  That too sounds all too familiar.

 Former Army structure on Ft. Washakie, now used by the BIA.

The regional occupations, which might surprise some people, are spot on. There are Animal Damage Control agents in the state.  Not many, but a few, as well as county trappers.  To see one made the main protagonist and indeed the hero of the film is refreshing.  The Reservation really does have a Tribal Police force (it has for over a century).  I don't know how thickly staffed it is right now, and during the Obama Administration the Reservation was flooded with Federal police that were sent on some sort of anti terror funding effort, meaning that it was heavily policed for awhile.  But the normal state of affairs puts the entire Reservation, which is indeed as big as Rhode Island, in the hands of just a few policemen.  Again, I don't know how many, but I think a good example of what they face is provided by an advertisement I saw years ago for the Reservation game warden. There was only one (and there might still be only one) and the advertisement provided that the applicant had "to be able to ride into remote areas on horseback and bring out a a suspect alone".

Think about that.  2,000,000 acres to patrol, and you have to be able to do it. . . .alone.
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That scene in the film in which the FBI agent asks if they should wait for backup and the Tribal Police chief responds "This isn’t the land of backup, Jane. This is the land of 'you’re on your own'." is spot on.

As an aside, I once stopped in the Haines General Store in Fort Washakie and saw that the truck of the Tribal Game warden, a single cab Dodge, was in the parking lot.  A Ruger Mini 30 was prominently mounted to the dash.  Not exactly the AR of current police fame, but I bet that guy, self equipped, knew how to use it.

 

St. Edward's Catholic Church, just north of Riverton Wyoming, on the Wind River Reservation.

In terms of the physical portrayal of the region they also did a very good job.  I know that much of the high country scenes were filmed in Idaho, and I've never been in the high country of the Reservation, but there is high country on it and I'll give it a pass.  The scenes of towns and dwellings, including a certain horrifying trailer, look pretty familiar.  The unusual habitation pattern of the Reservation, as opposed to the rest of Wyoming, in which there are a lot of dwellings here and there, is correctly portrayed.   I had to debate in my mind if a scene showing Fort Washakie was shot there or not (I'm sure it wasn't) but the fact that I had to ponder that about a place I've been to many times says something. The prairie scenes are correct.  And there is oil and gas development on the Reservation.  There's one short shot of Lander which is actually of Lander.

Old elevator in Lander.  You can see this in the film, from a much different direction.

The cultural portrayal is also very good.  

The Wind River Reservation is the home to two Indian Tribes, the Shoshone and the Arapaho.  That doesn't directly come up in the film but it's hinted at by those who know what to look for.  For those familiar with the Tribes, European names are more common in one than the other, with Anglicized Indian names being more common in that other.  Both show up in the film.

 

St. Stephen's Catholic Church on the Wind River Reservation.

The tension between the Indians and the non Indians is subtle in the film, and its subtle in reality as well.  Likewise the strong identification of a resident non Indian with Indians is something that occurs in reality as well.  The highly rural and blue collar nature of nearly all the work depicted is also spot on for the state.  The possible relocation of Lambert's ex wife to Jackson for a "better" job, working in hotels in Jackson, is the sort of thing that would really be regarded as a better economic move for many in the state.

The survival of the endangered Indian languages, not in daily primary use but still hanging on, is depicted in one scene and likely to the surprise of most people who live elsewhere.  Indeed, the context in which it is shown, to deliver an insult to an outsider, is something I'm actually aware of occurring in a slightly different fashion.  Likewise, the survival of some distinct Indian cultural practices is correctly portrayed.

Very unusually, the regional accent is correctly delivered, which it almost never is.

The main protagonist speaks with the correct Rocky Mountain region accent, the first time I've ever seen this portrayed in film.  A subtle accent which is somewhat like the flat Midwestern accent, it is different and tends to have a muttering quality to it.  For some really odd reason, most films set in modern Wyoming tend to use a weird exaggerated drawling accident that doesn't exist here at all, and which sound amazingly bizarre to our local ears.  Speech as portrayed in accent form by something like The Laramie Project just don't occur here at all, but the speech delivered by Corey Lambert in the film is spot on.  Even some of the phrases that show up in the film, such as a dissing of Jackson, are actually used here.

 

Blessed Sacrament Mission Church in Ft. Washakie, Wyoming.

In terms of material details, the film is also amazingly accurate.  The vehicles, a minor detail I suppose but an important one none the less, are correct for the region and the conditions. . . pickup trucks and snowmobiles.  Clothing details are correct, including headgear for the region and outdoor clothing.

Firearms, which figure prominently in this film, are also correct for what we'd expect to find.  The law enforcement officers in the film are all equipped with the current 9mms popular with law enforcement officers with one exception, that being the Tribal Police chief who is equipped with a M1911, something we'd find to be appropriate for that character.  The Federal hunter was surprisingly accurately equipped.  In the beginning of the film he's shown using a bolt action rifle which is somebody in that role in this region would be equipped with.  Something that appeared in the trailers which I was prepared to criticize was that the same character was shown using a Marlin Model 1895, but in the film its revealed that this is a scabbard rifle for carrying on a snowmobile, in which case it does in fact make sense.  A surprising moment for me was when he was shown to carry a large caliber revolver in a holster slipped on to a broad leather belt, as the evening I saw it I was just back from antelope hunting and I myself carry a large caliber revolver in a holster slipped on to a broad leather belt.  I'm surprised by them getting a regional detail like that right.  About the only firearms item I'd criticize is the appearance of a selective fire M4 in one scene but the use of M4 type carbines in the role that they're shown in would be correct.

So the film is perfect, correct?

No, I'm not saying that. But I am saying that they got most things right.

So what did they get wrong?

Well one thing is that drilling rigs operate year around in this region and do not shut down for the winter.  That just doesn't happen.  I understand why that was portrayed that way in this film, but that doesn't occur.  And drilling rigs don't have security either, which is in part because they wouldn't need it as they don't shut down.

The sense of distance is off in the film as well.  What are portrayed as long distances for the film would be short ones here.  And one geographic feature that's shown to be reached inside of a day just simply could not be, although again I understand why that was incorporated into the film.  Somewhere in the film there's a joke about going 50 miles to travel 5, which is true enough, but in reality its more like 150 miles to travel 15.

A  minor matter is that a scene of what is supposed to bet he courthouse in Lander is most definitely not of the courthouse in lander. But that's not really so much of a complaint here, as simply something I'm noting.  I know why they chose the building they did, perhaps.  In movies they like their courthouses to look like courthouses, and the one in Lander really doesn't that much.  But that, as noted, is not a big deal.

The actual Fremont County Courthouse.

Another minor matter is that the name "Washakie" is mispronounced in the film and by an actual Indian actor, Graham Greene.  In his defense, he's neither Arapaho or Shoshone but Oneida from Canada.  And I sort of wonder if the pronunciation that's common here might actually be in error and I just don't know it (we use a lot of distinct pronunciations for things and people here that aren't pronounced the same way in their original languages).  Still, it was surprising and somebody should have caught that.

A somewhat larger deal is that, as seems so typical, very view of t he Indian characters in the film are portrayed by Indians.  That grates on the nerves of Indians and I can see why. There are Indian actors around, plenty of them, but its rare for all the Indian parts in a film to be portrayed by Indians.  Whether or not its politically correct to say so, Indians do not look like people of European decent and simply assigning Indian roles and perhaps applying some makeup, no matter how effectively, to European American actors doesn't really change that.

And finally, people familiar with police procedures and regulation will have to note that there's at least a couple of instances in the story of this investigation in which its likely that special affairs would have had to be called in.

None the less, it's well worth seeing.

On a note, for those who may be inclined to see it, this film is violent.  Very violent.  Some scenes approach a Sam Peckinpah level of violence.  There's a place for violence in a film, and then there's films that are simply violent. This film is sort of both.  Potential viewers should be aware of that.

The Cheyenne State Leader for April 26, 1917: 30,000 Acres "Offered" on the Reservation

I've pretty much halted the daily newspaper updates from a century ago, while still posting some directly to the 100 Years Ago Today Subreddit.  This one is one I ran across that I'm posting here, as some thing linger and linger and linger.

The story, of course, to which I refer is the one noting that 30,000 acres were being opened up on the Reservation. 

Things like this happened all the time, and into the mid 20th Century, but the problems this has created have been endless.  It's shocking to read about now, but at the time, wasn't thought of as a problem by most.

Monday at the Bar and other things: Troubled Lawyers, Troubled Tribal Court, Deluded Law Students and Troubled Trials.

A veritable Monday morning cornucopia of legal stuff.

None of it particularly cheery, however.

And none of it having anything to do with tomorrow's election.  So maybe it's not as bad as it could be.  Indeed, all of the election stuff on this site today (which has been frankly over posting recently) pertains to the election of 1916.

At least that is one which we know how the story unfolds.

The November issue of the Wyoming Lawyer, or maybe it was the October issue (I don't tend to read them right away) recently arrived and I finally got around to perusing it.   It often takes me awhile, as I frequently do not find the articles to be terribly interesting, other than the new case synopsis. I can usually read anything it that I find interesting in about five minutes, which perhaps I should be embarrassed to admit.  This time, however, I was surprised by a couple of items.

The Wyoming State Bar has been really trying to draw attention to its Lawyers Assistance program.  It goes by an acronym I ought to remember, but I don't.  Anyhow, it has been doing this.  I guess a lot of states now have these.  These are all designed to try to aid lawyers that are having troubles in one fashion or another.  And by trouble I mean addictions or depression, and things of that type. 

As has been noted here before, lawyers are far more prone to these things than other professions.  Perhaps we always have been, but I doubt it.  I think the profession has evolved in that direction and frankly I think the forces that have created the conditions that give rise to these things are not going away soon.

Indeed, it's a bit disturbing to realize that the profession is basically running what amounts to field hospitals for its wounded.

 Medics in training, World War Two. . . analogy for the State Bar?

So once again, maybe, we have the unfortunate analogy between practicing law, and fighting in wars.  I know that seems a stretch, but when we start seeing an institution that is setting up crisis entities to deal with its own psychologically wounded. . .. hmm.

Anyway, the issue had articles by two lawyers I've worked in cases with.  I don't know either of them very well, but I do know them,.  In their articles they noted they had problems in the past and detailed them a bit.  One had problems years ago, and related taking them on when there was no help available.  I was, frankly, shocked as he's in the category of people I'd regard as a "big success". This fellow wasn't specific, but it sounds like he was struggling with anxiety issues or depression and ultimately sought help from his physician for it, who didn't really know what to do and sent him to a counselor.  Apparently that helped him out of that swamp.  He was recently, it was reported, an expert in a case and donated the fees for that to the State Bar's program. Pretty darned admirable. . . both to do that and to be willing to write about it.

The other article was by a lawyer younger than me who spoke of his battle with alcohol.  He related that this problem predated his entry into law school, so the law I suppose can't be blamed for that, but the program did help him in overcoming it.  He was apparently the first graduate of the Bar's program on that, and apparently it helped him where other programs hadn't.  Having worked with him, I was frankly shocked to learn that he had a problem. I'd never have guessed it.  Of course, maybe his story diverts a bit here as he didn't become an alcoholic, it should be noted, due to the practice of law, but entered it as one.  I sure have to say that I never realized that, but maybe being a lawyer sort of saved his life I guess, in a way.

Pretty brave of those guys to write those articles.

But, I think we have to confess that if even the big guns in the law, whom have what seem to be hugely successful practices, are driven into periods of despair there's something at work here and its not just the individuals.  Something bad.  And whatever it is, probably requires fundamental reform of a deep nature.  A line of work shouldn't be destructive to its practitioners.  Something here seems to be.  We lawyers like to claim that we have the best justice system in the world (something I frankly do not believe is true), but a system that destroys its own in surprising numbers isn't the "best".

Shortly after I read the article noted above, I was spending a tired morning working on something outside the office when a lawyer I know suddenly went off on the profession.  It shocked me as he's always seemed to be one of the happiest practitioners I've ever known, although recently he has seemed troubled and not himself.  Anyhow, in a totally unsolicited outburst, he really came down hard on the practice.  I'll not be able to think of him the same way again.

This is the second time I've had this happen in recent weeks. The first time was during a deposition in front of a subpoenaed office.  Here too, I was really surprised as I didn't expect this from these quarters. In that case, I only know the lawyer as an opponent in cases and I don't even really know him personally at all, although he's extremely gregarious. Again he seems a super happy

And that oddly led me to consider Law School. 

Before I note that, I'll also note, fwiw, even though its completely unrelated, that the same lawyer mentioned last related a story about a really well known lawyer that was truly foul.  I don't think he thought of that way, but I note this as we've been hearing a lot about the comments Donald Trump made (let's set aside the accusations of conduct) that shocked many people. Well, I was shocked about these as they were vile and also involved comments of a vulgar nature, although not about acts of any kind against other people, other than they sounded downright abusive to the lawyer relating the story, which was from when he was a young lawyer.

I note this, as I wonder how common such vulgar comments are in some context.  Probably a lot more than I care to know.

Anyhow, law school and delusion.

I read yesterday, in the Casper Star Tribune, an article about a Vietnam veteran who returned home and briefly went to law school before returning to work on his family's ranch in LaGrange.  It was an interesting article.  Just two days ago I was working cattle, when an old rancher I know mentioned to me "it seems like you are busier and busier (with the law) all the time".  I said yes, and then he said "well, I guess that's okay if you enjoy it."

That might be right.  

But I think almost every rancher enjoys his work. Statistically, in the US, a lot of people do not.  According to what state bars and the ABA puts out, a fairly high percentage of lawyers don't, but then I have seen the reliability of those statistics questioned as well.  Maybe we really don't know the answer.  But it's interesting to hear work put in the context of being worthwhile if, but only if, "you enjoy it."

And that gets me back to law school.

Law schools teaches people nothing at all about the actual practice of law.  Nothing.  Most law professors at this time don't know anything about the practice of law themselves.  As Judge Posner recently noted, law schools tend to be refuges from the actual practice of law and populated by people who fled it. And yet law schools put out propaganda about  how nifty the practice of law is, and how nifty a law degree is.  They still even occasionally put out the complete crap that "you can do anything with a law degree", which is bull.

That relates to the above, quite frankly, as I think that we now have an environment where a lot of people enter a field that they don't, to put it in the rancher's frame of reference, "enjoy".  Its apparently making a lot of lawyers miserable, if the statistics are to be believed.  Law schools are culpable in that in that they're doing nothing to educate their young charges in that fact.  Indeed, law schools, being populated by professors that are only dimly connected, quite often, with real work, are complicit in creating an illusion for the young that law is a happy, exciting, morally upstanding, profession.  Maybe that's inevitable, as who would emphasize that it's really hard work with a high dissatisfaction and psychological problem rate, with lots of substance abuse problems (apparently, if we believe the stats).  But I think law professors are largely clueless, or worse yet, they're early refugees from the profession and aren't clueless, but complicit.

Maybe some firms are, however, educating their young charges on these topics, even if accidentally.  One of the firms I know of had a young woman who graduated high school with my son. She was a valedictorian for her class last year.  She seemed very nice and pleasant and apparently had a life long dream, I'm told, of becoming a lawyer.  And she planned her future education that way.  Well, according to what I heard, the members of her firm slowly came to her before she departed the state to further her education and mostly warned her not to become a lawyer.  Again, I was amazed.  I guess that's to their credit, but what an indictment of the profession. Rather than encourage her they set out to crush her plans, one by one, but in the apparent hope of saving her from what they worried would be a mistake. Apparently it worked and she's abandoned that career plan, even if she doesn't, I'm told have a replacement.  That's remarkable, and disturbing.

But, back to the rancher's comment, if it seems a high percentage of lawyers don't "enjoy" their profession, but are seeming to endure (a scary thought, really), maybe that's the American norm?  Some time ago I ran an article from one of the statistics outfits that revealed a majority of Americans actually dislike their jobs, and it was a high percentage.  According to news outfits, which may be somewhat exaggerating the way the poll put it, "70%" of Americans "hate" their jobs.  Even if that's not quite right, that's a sad statistic.  And perhaps, therefore, lawyers aren't that unusual.

Which takes me back to Saturday's public lands rally.

 

One of the speakers at that rally was Chris Madson, formerly the editor of Wyoming Wildlife.

I think Madson, fwiw, was a good editor, but his writings tended to be very gloomy, more I thought than deserved.  Reading him tended to be a bit like watching The Seventh Seal and The Last Emperor in a double feature.  But, he served a purpose.

Well, at the rally he was predictably gloomy, but had this interesting observation, which he repeated in an article (as he mentioned) on his website:

These days, Americans are dispossessed, confined in our apartments, on our quarter-acre lots, estranged from the land that, in large part, has defined our character as a people and a nation. We are held prisoner by economics. One of the few physical expressions of freedom we have left is the public domain. Together, we can use it without destroying it; we can enjoy it without dividing it.

I don't know that we're dispossessed, but could be, for the reasons that he noted.  And I think, frankly, that the wholesale adoption of the modern global, everything is about consumption, we must have ever more crowded cities and every more cubicles economy, is causing a lot of the dissatisfaction in work mentioned above, legal or otherwise. We weren't made for four walls and big cities. But increasingly, we are left with fewer choices but to adopt those conditions.  One more reason, as Madson noted, to preserve public lands as public.

On the "best justice system in the world" and on public lands, that justice system, let the Bundy wildlife refuge occupiers off the hook. This has to be a case of jury nullification, and the jury should be ashamed.

I almost always ask for juries, but I have to wonder in a thing like this if a jury serves justice.  I suppose there will always be guys who drop the ball on juries, but this is an OJ jury like fumble.  They should be ashamed of themselves and I hope they come to be.  As another speaker noted at the rally, the local ranchers hadn't wanted them there and it wasn't the occupiers who missed duck season on that refuge that year, members of the public that they were, but rather local duck hunters.  People like the Bundys are a threat to local agriculture and a threat to public land use.  The sooner they bear the just implications of their actions the better, so perhaps in their upcoming trial they'll actually get justice from the best justice system in the world.

Among lawyers having a miserable time right now we'd have to include Tribal Court . . . well now Arapaho Tribal Court, Judge St. Clair.  Apparently the CFR court that will take over for the Shoshones has told him to get out of the court he's occupying, as it belongs to the BIA.  My goodness, what a horrible mess.  Where will they go?

 

 Poor photograph of the Wind River Indian Reservation Tribal Court.  The BIA has told the (now Arapaho) Tribal Court to get out.

I think there was a building on the Reservation that was an Army court.  And I think it's over by the parade ground on Ft. Washakie.  I don't know what its used for now, but if that building contained a court (and I only vaguely believe that it did) it hasn't been used that way for decades.  And how can one geographic space contain two courts based not on territorial jurisdiction, but on a combination of territory and race?

Addendum

As an addendum to this less that cheery entry, we note that Janet Reno, who was the first female Attorney General of the United States, died today at age 78. She had been suffering from Parkinson's Disease.

Her death, coming as it does, on the even of the 2016 General Election is likely to pass less noticed than it otherwise would.  I'll simply note it here. She was appointed AG by Bill Clinton and held the post for a longer period than anyone in the prior 150 years had. Her occupancy of the position was not without controversy, if for no other reason than the Clinton era seems to be the commencement of the modern political period we are in which has featured controversy about everything.

Of some note, however, her first may have seemed to be a really significant first to a greater extent than the first which we're likely so see tomorrow, that being the first woman President.  I still hear that first touted on the weekend news shows but I really think, at this point, nobody cares.  What seems to have been missed on that  is that by this point the acceptance of women and minorities in every walk of life is so general that a first woman President is truly an irrelevant statistic to most people.  The election of Elizabeth Rankin to Congress a century ago was actually truly much more of a milestone.

Today In Wyoming's History: November 3

Today In Wyoming's History: November 3:

2016 Buffalo (Bison) were returned to the Wind River Reservation by the Eastern Shoshone tribe. The introduced buffalo were ten in number.

Lex Anteinternet: The Shoshone - Arapaho Disagreement comes to a head...

I reported on this event back on October 10, when it first hit the news:

Lex Anteinternet: The Shoshone - Arapaho Disagreement comes to a hea...: There's a truly odd spectacle playing out in Fremont County, Wyoming, but it's getting little attention. As has been noted her...

There's been no news on it since, and I wondered what was going on.

Well, today the Tribune has a followup article, and there's been no resolution of the crisis.  Indeed, it's even odder than originally reported.

In terms of news, this matter is actually going before the Tribal Court this Wednesday.  The issue will be whether the court can be dissolved by the Joint Business Council if only the Shoshones are recognizing the council.  The Court has already issued a preliminary order that it cannot, and in fact has held the sitting Shoshone members of the JBC in contempt at the rate of $150 a day for attempting to dissolve it and cease funding it. The Arapahos, who had asked the BIA to fund separate institutions including a court, as they no longer participate in the JBC, are ironically now funding the Tribal Court.   The JBC has asked for the BIA to restore a BIA court, which it threatened to do, but which it has not.

It's hard to see a resolution to this occurring, or at least one that doesn't involve the Federal courts.   And indeed there's a case in Federal court right now about whether or not the Arapahos can demand separate treatment from the Federal government in light of its independent sovereignty.  Those who argue against it, at least on practical grounds, note that its tough to have two separate bodies of law in the same geographic area, including two separate courts and two separate game and fish codes.

The Shoshone - Arapaho Disagreement comes to a head in Tribal Court

There's a truly odd spectacle playing out in Fremont County, Wyoming, but it's getting little attention.

As has been noted here before, the Arapahos have pulled out of the Joint Business Council, the body that has administered the Reservation for quite some time.  Outnumbering the Shoshones, they have become discontent with the council and have been moving towards separate administration for quite awhile.

Now this has expressed itself, of all places, in the jointly administered Tribal Court.  It has the appearance of a real disaster in the making.

Apparently the Bureau of Indian Affairs has quit funding the court (and perhaps other things as well).  Indeed, the BIA has apparently announced that it will recreate a Bureau of Indian Affairs Court, which the Wind River Reservation  has not had since taking over the administration of its legal system in the 1970s.  BIA courts administer according to "traditional" concepts, so its unclear if the Law & Order Code of the Wind River Reservation will apply in the BIA Court, should it be restored.  The Law & Order Code, for its part, is a joint code, and in recent years the Arapahos have crated their own legal code that applies to some things, but not all.

Following this, the Joint Business Council, which now seats only Shoshone members, the Arapahos, in the style of Irish Nationalist of the teens, aren't taking seats, determined to lay off all the Court's employees, which would effectively shout it down and require the BIA to step in. The Tribal Court judge, however, who right now has the unqualified worst legal job in the State of Wyoming, issued a ruling vacating that order, although its not clear how the employees of the court will be paid.  The Court ruled that the Eastern Shoshone Tribe could not act in vacuum without the Arapahos, which makes some sense, but which is ironic in light of the threat of the Arapahos just a couple of years ago to form their own court.

What a mess.

All of this, of course, is illustrative of preserving a dicey decision.  The Shoshones had not really wanted the Arapahos on their reservation in the first place, they were enemies.  The allowance for them to be there was temporary, in the 1870s, but its obviously permanent now.  In human terms, that's not very long ago.  And now a problem that's been brewing has really come to ahead.

One Reservation, two tribes, and two courts

I've written several times recently about the breakdown over the Tribal Court at Ft. Washakie.  This past week, things seemed to move along towards where they were seemingly headed.

The BIA determined to set up a new CFR Court for the Shoshone nation. Therefore the Wind River Reservation Tribal Court will no longer have jurisdiction over members of the Shoshone nation.  The Court will retain, however, jurisdiction over Shoshone tribal members who had cases pending in the court prior to the establishment of the CFR Court, which has now been established.  Otherwise, the Tribal Court will have jurisdiction only over members of the Arapaho nation.

The Court, it should be noted, has under advisement penalties for members of the Joint Business Council, all Shoshone right now, who were recently found in contempt due to trying to dissolve the court.  A hearing was recently held and, according to the Casper Star Tribune, those individuals did not appear but lawyers for the Arapaho tribe did and they urged jail sentences for those found in contempt.

All of this, while it may be a temporary resolution, is hardly a satisfactory one.  Two tribes, one shared reservation, two courts.  This seems to be guaranteed to be problematic.

Strife over the Tribal Court

 

 Poor photograph of the Wind River Indian Reservation Tribal Court.

I'm a member of the Wind River Reservation's bar so it pains me to see some strife over the future of the Court.

For a very long time, indeed since I think it became an independent tribal court after no longer being a BIA court, the Tribal court has been just that.  The court for both of the Tribes, the Shoshone and the Arapaho, on the  Wind River Reservation.  Both tribes managed their affairs jointly through a Joint Business Council.

But the Arapahos withdrew from the council within the last couple of years and now a suit has been filed in which it argues that the BIA must deal separately with it.  It also seeks to establish its own courts.  Basically, it wants complete administrative separation and for the Federal government to treat the Arapaho tribe separately.

Making the situation worse, the Arapahos constitute 70% of the Wind River's population, but the Joint Business Council, which is now all Shoshone, has kept on keeping on as the recognized tribal government nonetheless.  And they haven't been shy about it.  They simply are treating the Arapaho absence as temporary.

This dredges up old problems on the Reservation.  I noted a little of the history on the page I have on this blog on Tribal Court jurisdiction when I noted that the Reservation was created in 1863 for the Shoshones, at their request, and didn't become the home for the Arapahos until 1878, something that was supposed to be temporary.  At that time the Northern Arapahos were a very small tribe, and actually an enemy of the Shoshones, but now they outnumber them.

I have to admit that they have a point.  The official policy of the US is to encourage Tribal sovereignty and therefore they are a sovereign nation.  If they don't want to participate in a joint administration, I guess they don't have to.  But how there can be two separate bodies administering the same lands, let alone two separate courts, is difficult to grasp.

Sunday Morning Scence: Churches of the West: St. Edward's Catholic Church, Wind River Reservation

Churches of the West: St. Edward's Catholic Church, Wind River Reservation.


These are photographs of St. Edward's Catholic Church, north of Riverton, Wyoming and near Kinnear. This church was moved to this location in 1977. It had originally been located in Pavillion, some miles away, and was built in 1924.

Tribal Court Jurisdiction

 Delivered at the Wyoming State Bar Convention, September 2010.

And just published here as a separate page.  Most of the rest of the separate pages here originally were articles on the blog, so I'll publish this one here as well.

 Note, this is out of date.  I wouldn't rely on it anymore, if I ever would have.  Law evolves, and since 2010, it's sure evolved in Wyoming on this.  We even have a new Wyoming Supreme Court opinion addressing this topic, which is really phenominal.

Tribal Court Civil Jurisdiction

            Most practicing attorneys in Wyoming think of there being two complimentary court systems offering civil jurisdiction over civil litigation.  The courts most frequently resorted to for civil cases are Wyoming’s State Courts, divided, as we all know into State District Courts and Circuit Courts.  In addition we have the Federal Courts, in instances of diversity of citizenship or in instances in which the Federal government has provided for original jurisdiction.

            In addition to this, however, there is a third court system, that of the Wind River Indian Reservation.  Determining the presence or absence of Tribal Court jurisdiction involves a somewhat unique set of questions, and the procedure for determining the presence or absence of Tribal Court jurisdiction differs from the same consideration in other courts.

            A.  The origin of Tribal Court Jurisdiction.

            While the long history of European American expansion into Indian lands and the resulting conflict is well known and well studied, providing a reader with everything from scholarly treatises to cheap novels, the resulting legal history of the same historical episode is rarely serious addressed in popular histories.  According to at least some, there are more books on George Armstrong Custer on the Western Frontier than there are about any other character in American history, and books on the history of the Indian Wars continue to be written and read.  In the last few years, popular histories have been published on everything from King Philips War[1], to the Indian Wars of the American Southwest[2], to yet another book on the Battle of the Little Big Horn[3].  And yet a person would have a difficult time finding any common text dealing with the legal aspects of the United State’s relationship with the country’s native peoples.  This is a significant omission in the story as there was never a moment in that story during which the United States was not operating under a theory of a legal relationship to the native peoples.

The history of tribal jurisdiction is an instructive and illuminating aspect of that story. After the American Revolution, the various states at least theoretically held all governmental power.[4]  By virtue of the Constitutional Convention of 1787 that power was temporarily held by Congress until the ratification of the Constitution, and exercised by the representatives empowered by the States for drafting the Constitution.  The Constitution permanently set out how power within the federal system would be held, setting out for Congress certain powers superior to all other sovereigns, including exclusive jurisdiction for certain legal actions.  Through the Ninth, Tenth, and Eleventh Amendments to the United States Constitution, first proposed in 1789 and adopted in 1791, the Federal Government limited its own powers, including judicial powers, and reserved all remaining powers alternatively to the States and to the people.  U.S. Const. Amend. IX, X and XI. 

The Federal government, initially by way of the Constitution, and subsequently through statutory enactments, reserved unto itself all rights to deal with Indian tribes and deprived the states of the ability to do so without its express consent.  U.S. Const. Art. I, Sec. VIII, Cl. 3; Art. II, Sec. II, Cl. 2.  This recognized a series of lesser and greater sovereigns and political entities, with the United States essentially recognizing that the Indian Tribes were sovereigns holding that sovereignty to the extent that the United States chose not to extinguish it.  This sovereignty was conceived of as less than that of the Federal government’s, but separate from that of the individual states in which the tribes were located.  This is the system that essentially remains today.  Each sovereign and political entity is free to accept or limit its powers, including jurisdictional powers, but only up to limits of the power recognized by the superior sovereign, that being the United States.  See Cherokee Nation vs. Georgia, 30 US  (5 PET) 1 (1831) and Worcester vs. Georgia, 31 US (6 PET) 515 (1832).  In the case of States, the States can and do confer jurisdiction upon lesser municipal corporations and other political entities.  Therefore, counties and municipalities may operate up to the limit of that power and jurisdiction referred to them by the State, including conveying jurisdiction to Courts that may operate within these political entities.  However, the political entities are not free to confer any jurisdiction to them beyond that which is already conveyed to them by the State.

            Tribal Courts are faced with a similar limitation upon their jurisdiction, except that the grant of their jurisdictional powers has essentially come through Congress, and Federal law likewise sets the limits upon their jurisdictional powers.  Congress declared the Federal government to have all existing power and rights in dealing with the Indian tribes.  Over a course of well over a century, the United States granted to the tribes various powers that it had earlier deprived them of, including jurisdiction to hear certain disputes.  Presently, the United States still requires that disputes heard in Tribal Courts, with certain distinct and clear exceptions, must involve at least one tribal member. 

B.     The Wind River Indian Reservation.

While the law pertaining to the presence or absence of Tribal Court jurisdiction is general in nature, and is generally applicable to any situation involving a question concerning the civil jurisdiction of an Indian Tribe, in the Wyoming context such questions only pertain to the Wind River Indian Reservation for the obvious reason that the Wind River Indian Reservation is Wyoming’s only Indian Reservation.

The Reservation includes approximately 2.2 million acres of land, approximately twice the size of the State of Rhode Island.  The Reservation was originally created in 1868, following the 1863 Treaty of Ft. Bridger, for the Eastern Shoshone tribe under the leadership of Chief Washakie.  The Reservation came to permanently include the Northern Arapaho tribe in 1878 but in a manner that did not take into account the existing treaties with the Eastern Shoshone Tribe.[5]  Each tribe elects its own Business Council, which when jointly assembled forms the legislative body of the Reservation as the Joint Business Council.  The seat of government, including the Tribal Court, is located at Ft. Washakie, which is just north of Lander.  The Joint Business Council has enacted a Law & Order Code, which is available on-line at http://shoshone-arapahotribalcourt.com/[6].  The Law & Order Code includes the complete set of laws jointly enacted by the Tribes, including the appellate rules of the court and the rules of civil procedure.[7]  A separate code, however, has been enacted by at least the Northern Arapaho Tribe, on some topics.[8]  Significantly in terms of civil litigation, the Wind River Reservation has retained joint and several liability, which provides a significant concern in terms of strategy for both plaintiffs and defendants in civil litigation.[9]

In this discussion it may always be presumed that references to Tribal Court, while general in nature, have Wyoming’s locality in mind, and therefore are written in the context of the Wind River Indian Reservation being the state’s only Indian Reservation.

C.    The Wind River Indian Reservation Court.

The Wind River Indian Reservation Court is unique in some ways in that it is the only court in Wyoming that generally hears all types of cases, except where precluded from hearing them by Federal law.  This means that the Court hears civil and criminal cases as well as certain types of domestic cases.  In the civil context, the Court hears everything from cases that would be in the general area of a Small Claims cases in State Circuit Court, up to cases that have the highest level of damages.  The Court’s criminal jurisdiction is not as broad, however, due to Federal provisions on the same.  The Code provision establishing the Court is found at Section 1-3-1 of the Law & Order Code.

Section 1-3-1 Courts Established

(1) There is hereby established a Shoshone and Arapaho Tribal Court to handle all matters of a judicial nature within the jurisdiction of the Shoshone and Arapaho Tribes as provided in this Code. It shall be a court of general civil and criminal jurisdiction and shall hear appeals from administrative bodies of the Shoshone and Arapaho Tribes. It shall consist of one

(1) chief judge and three (3) associate judges. Each tribe may appoint two (2) as mutually agreeable.

(2) There is hereby established a Shoshone and Arapaho Tribal Appellate Court to handle all appeals from the Children*s and Tribal Courts. It shall consist of three (3) judges.

(3) There is hereby established a Shoshone and Arapaho Tribal Children’s Court to handle all matters set forth in the Children and Juvenile Code contained in this Law and Order Code.

(4) There is hereby established a Shoshone and Arapaho Tribal Probate Court which shall have exclusive original jurisdiction of all matters relating to the probate and contest of wills and testaments and of administration, and the settlement and distribution of decedent’s estates of all property on the reservation.

(5) Each court will function as a court of record.

            The Wind River Indian Reservation Tribal Court may be somewhat unique as a tribal court in that it serves two separate Federally recognized Indian tribes.  The norm would be for a Court to serve a single tribe, but then the norm also is for a reservation to be dedicated to a single tribe.

            Civil trials may be to a jury of six.  The jury is generally empanelled from residents living within the Reservation without regard to Tribal enrollment.

            The Court has an appellate branch that also sits in Ft. Washakie, Wyoming.  The appellate branch of the Court is established in Article 15 of the Law & Order Code.

Section 15-1-1 Creation of the Court

There is hereby created a Court of Appeals of the Wind River Indian Reservation, Wyoming, which shall be part of the Shoshone and Arapaho Tribal Court.

Section 15-1-2 Jurisdiction of the Court

The Court of Appeals shall have exclusive jurisdiction of all appeals from final orders and judgments of all the Shoshone and Arapaho Tribal Courts and shall have original jurisdiction to issue all writs of habeas corpus on the reservation. The court shall have jurisdiction:

(1) To take all steps necessary to preserve and protect the jurisdiction of the court.

(2) During the pendency of any appeal, to release the appellant on his own recognizance or on bail pursuant to Section 15-1-7 (1) of this code.

(3) To make any order appropriate to preserve the status quo or to protect any ultimate judgment of the court.

            Appeals of civil matters are by not by right, but leave of the Court.

D.  Tribal Court Civil Jurisdiction.

i.                    Territorial Jurisdiction.

The Tribal Court’s civil jurisdiction is the exterior boundary of the Wind River Indian Reservation.  The Tribal Code itself recognizes this limitation.  Section 1-2-5 of the Tribal Code provides:

Section 1-2-5 General Subject Matter Jurisdiction Limitations

Subject to any contrary exceptions, or limitations contained in either federal or applicable tribal law, the Wind River Tribal Court shall have general subject matter jurisdiction over all civil causes of action, arising of the reservation and over all offenses prohibited by this code which occur within the exterior boundaries of the Wind River Indian Reservation to adjudicate and determine the rights and responsibilities of all parties.

Section 1-2-2, specifically addressing Territorial Jurisdiction, provides:

Section 1-2-2 Territorial Jurisdiction

(1) The jurisdiction of the Tribal Courts of the Shoshone and Arapaho Tribes shall

extend to the territory within the Wind River Indian Reservation and to such other lands without such boundaries as may have been or may hereafter be added to the reservation or held in trust for the tribes under any law of the United States or otherwise.

(2) The jurisdiction of the Tribal Courts of the Shoshone and Arapaho Tribes shall

extend beyond the territorial limitation set forth above, to effectuate the jurisdictional provisions set forth below, to the greatest extent permissible by law

This seemingly simple topic is somewhat complicated by the fact that the effective boundary of the Wind River Reservation remains in dispute.  This stems from the fact that the external boundaries of the reservation have changed somewhat over time for a variety of reasons, and the residents of the Reservation today do not uniformly recognize the current exterior boundaries as the proper ones.[10]  Given this, it is possible that jurisdictional questions can arise where personal jurisdiction would exist, but territorial jurisdiction may be in dispute.

ii.                  Personal Jurisdiction

A person or party’s relationship to the sovereign determines personal jurisdiction in Tribal Court.  Tribal Court clearly has jurisdiction over civil suits involving at least one member of an enrolled Indian Tribe involving a claim arising within its territorial jurisdiction.  Tribal Court generally lacks, however, jurisdiction over suits arising between those who are not enrolled members of Indian Tribes, even when a party’s claim arises within the exterior boundaries of the Reservation.

The Tribal Court, through the Tribal Code, claims fairly extensive personal jurisdiction, even though the text may place it in conflict with the applicable United States Supreme Court decisions on this topic, which are addressed below.  At any rate, the Tribal Code provides:

Section 1-2-3 Personal Jurisdiction

(1) As used in these jurisdictional provisions the word “person” shall include any individual, firm, company, association, corporation or tribe.

(2) The Tribal Courts of the Shoshone and Arapaho Tribes shall have personal jurisdiction over the following persons:

a) Any person residing, located or present within the reservation for any civil cause of action;

b) Any person who transacts, conducts, or performs any business or activity within the reservation, either in person or by an agent or representative, for any civil cause of action;

c) Any person who owns, uses or possesses any property within the reservation for any civil cause of action;

d) Any person who commits tortious conduct within the reservation, either in person or by an agent or representative, for any civil cause of action arising from such act, conduct or omission; and

e) Any enrolled or non-enrolled member of any indigenous Indian tribe who commits a criminal offense prohibited by this Code or other law of the tribes by his or her conduct or the conduct of another for which they are legally accountable, if:

i) the conduct occurs either wholly or partly within the reservation;

ii) the conduct which occurs outside the reservation constitutes an attempt, solicitation, or conspiracy to commit an offense within the reservation, and an act in furtherance of the attempt or conspiracy occurs within the reservation; or

iii) the conduct which occurs within the reservation constitutes an attempt, solicitation, or conspiracy to commit in another jurisdiction an offense prohibited by this Code, tribal law or such other jurisdiction.

(3) None of the foregoing bases of jurisdiction is exclusive, and jurisdiction over a person may be established upon any one or more of them as applicable.

Section 1-2-4 Jurisdiction Over Property

Subject to any contrary provisions, exceptions, or limitations contained in either federal laws and regulations, the Courts of the Shoshone and Arapaho Tribal Court shall have jurisdiction over any real or personal property located on the reservation to determine the ownership thereof or rights therein or to determine the application of such property to the satisfaction of a claim for which the owner of the property may be liable.

* * *

Section 1-2-6 Concurrent Jurisdiction

The jurisdiction invoked by this Code over any person, cause of action, or subject shall be concurrent with any valid jurisdiction over the same of the courts of the United States, any state, or any subdivision thereof; provided, however, this Code does not recognize, grant, or cede jurisdiction to any other governmental entity in which jurisdiction does not otherwise exist in law.

Section 1-2-7 Exclusive Original Jurisdiction

(1) The Shoshone and Arapaho Tribal Court shall have exclusive original jurisdiction in all matters in which the Shoshone and Arapaho Tribes or their officers, employees, or agents are parties in their official capacity.

(2) Nothing in this code shall be construed as a waiver of sovereign immunity of the tribes, their employees, officer and agents unless specifically denominated as such.

Tribal Court Jurisdiction over non-enrolled litigants.

Tribal court jurisdiction over non-members is governed by the principles set forth in Montana v. United States, 450 U.S. 544 (1981). See Plains Commerce Bank v. Long Family Land and Cattle Co., reaffirming the holding of Montana v. United States as controlling. In Montana, the Court held:

These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations.  But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type.  They involve only the relations among members of the tribe.  Thus, they are not such powers as would necessarily be lost by virtue of a tribe’s dependent status.  (Emphasis added).

Thus, in addition to the powers to punish tribal offenders, the Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations amongst members, and to prescribe rules of inheritance for members . . . But exercise of tribal powers beyond what is necessary to protect tribal self government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.

Montana v. United States, 450 U.S. at 564 (emphasis in original), citing United States v. Wheeler, 435 U.S. 313  (1978), Mesclaero Apache Tribe v. Jones, 411 U.S. 145 (1973), Williams v. Lee, 358 U.S. 217 (1959), U.S. v. Katma, 118 U.S. 375 (1886) and McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973). 

The Court, in Montana, further stated:

To be sure, Indian tribes retain inherent sovereign powers to exercise some forms of civil jurisdiction over non-Indians on the reservation, even on non-Indian fee lands.  A tribe may regulate, through taxation, licensing, or other means, the activities of non-members who enter consensual relationships with the tribe or its members, due to commercial dealing, contracts, leases, or other arrangements . . . A tribe may also attain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or health or welfare of the tribe.”

Montana, 450 U.S. at 565-566, citing Williams v. Lee, 358 U.S. 217 (1959), Morris v. Hitchcock, 194 U.S. 384 (1904), Buster v. Wright 135 F 947 (8^th Cir. 1905), Washington v. Confederated Tribes of Coleville Indian Reservation, 447 U.S. 134 (1980), Fisher v. District Court, 424 U.S. 382 (1976), Montana Catholic Missions v. Missoula County, 200 U.S. 118 (1906), Thomas v. Day, 169 U.S. 264 (1898) and Arizona v. California, 373 U.S. 546 (1963).

 Montana provides that there is no Tribal Court jurisdiction in suits between non-Indians except in two distinct exceptional instances.  Montana notes, “…that the inherent sovereign powers of an Indian tribe do not extend to the activities of non-members of the tribe”.  Montana supra. at 565.  As noted in a post Montana decision:

Where non-members are concerned, the ‘exercise of tribal power beyond what is necessary to protect tribal self government or to control internal relations is inconsistent with the dependant status of tribes and, so cannot survive without express congressional delegation’. 

Nevada v. Hicks, 533 U.S. 353 (2001) (emphasis in original). 

Montana provides two exceptions under which tribes may exercise "civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands," 450 U.S., at 565, 101 S.Ct. 1245: (1) "A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements," ibid.; and (2) a tribe may exercise "civil authority over the conduct of non-Indians on fee lands within the reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe," id., at 566, 101 S.Ct. 1245.

Plains Commerce Bank v. Long Family Land and Cattle Co, id (emphasis in original).  See also Strate v. A1 Contractors, 320 U.S. 438, 446 (1997). 

            The United States Supreme Court has since built upon the Montana decision to make clear that: 

Where non-members are concerned, the ‘exercise of tribal power beyond what is necessary to protect tribal self government or to control internal relations is inconsistent with the dependant status of tribes and, so cannot survive without express congressional delegation’. 

Nevada v. Hicks, 533 U.S. 353 (2001) (emphasis in original). 

The Court affirmatively stated that Indian tribes generally, “…lack civil authority over the conduct of non-members on non-Indian land within a reservation...” except where the non-members entered into a consensual relationship with the tribe or its members sufficient to justify vesting the tribe with civil authority over the non-members conduct or a tribe seeks to exert civil authority over activity that directly effects the tribe’s political integrity, economic security, health, or welfare.  Strate v. A1 Contractors, 320 U.S. 438, 446 (1997).  The Court further determined that, “The ownership status of land…is only one factor to consider in determining whether regulation of the activities of non-members is ‘necessary to protect tribal self government or to control internal relations’”.  Nevada v. Hicks, supra.  The mere existence of tribal ownership of land, in and of itself, is insufficient to support regulatory jurisdiction over non-members.  Hicks, supra. 

Summary of Tribal Court Civil Jurisdiction

Tribal Court’s, including the Wind River Indian Reservation, are free to assert civil jurisdiction up to the limits imposed upon them Congress.  As defined by the United States Supreme Court, this means that:

1.  Tribal Courts have civil jurisdiction in suits involving at least one enrolled tribal member that arise within the territorial confines of the jurisdiction.

2.  Tribal Court’s lack jurisdiction in suits in which there are no enrolled members except where:

a.  "A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements; and

b.  A tribe may exercise "civil authority over the conduct of non-Indians on fee lands within the reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe,".   This impact must be substantial in nature.

E.      Challenging Tribal Court Jurisdiction.

As Tribal Courts exist by way of Congressional authority, it is possible to challenge the presence of Tribal Court jurisdiction in Federal Court in a declaratory judgment action, but a party must first consider comity concerns as expressed by the Federal Courts. Generally, while there has been erosion of the doctrine in recent years, it is the case that a party must challenge the presence of Tribal Court jurisdiction in Tribal Court prior to challenging jurisdiction in Federal Court.

a.      Challenging jurisdiction in Tribal Court.

A challenge to Tribal Court jurisdiction in Tribal Court is by simple motion practice.  Motions to dismiss in Tribal Court are conventionally presented and a challenge to jurisdiction only requires a motion and a brief.  The Tribal Court generally always schedules an oral argument on motions of this type.

b.      Directly challenging Tribal Court jurisdiction in Federal Court.

As noted above, a long series of cases generally hold that a party must exhaust his or her remedies prior to presenting a jurisdictional question to Federal Court.  This is not universally the case, however, and has recently been addressed by Federal Judge Johnson in McDonald’s v. Crazy Thunder Case No. 06-CV 180J;

Therefore, when tribal-court jurisdiction over an action such as this one is challenged in federal court, the otherwise applicable exhaustion requirement must give way, for it would serve no purpose other than delay.

Strate v. A1 Contractors, 520 U.S. at 459 n. 14 as quoted by the Honorable Alan B. Johnson in McDonald’s v. Crazy Thunder Case No. 06-CV 180J (emphasis added).

            The extension of comity and “abstention” are discretionary acts. “The doctrine is one of discretion rather than jurisdiction”.  Rocky Mountain Oil and Gas Association v. Watt, 696 F.2d. 734 (10^th Cir. 1982).  The Court, therefore, has some leeway in considering jurisdictional challenges, although they remain difficult due to the Federal District Court’s natural desire to allow the Tribal Court to consider the question first.

            Having said that, the Federal District Court, in McDonald’s Corporation v. Irene Crazythunder, Case No. 06CV-180J an exhaustive opinion, made it clear that exhaustion is not required in all circumstances:

In the past this Court has applied the “colorable claim” standard in tribal exhaustion cases. See Farmers Ins. Exchange v. Alison Sage, Jr., D. Wyo. Case No. 02-CV-94-J (stating that “where a colorable claim of jurisdiction in the tribal court exists, exhaustion should be required and the federal court should defer to the tribal court.”) The “colorable claim of tribal jurisdiction” has been applied in other circuits. See Bank One, N.A. v. Lewis, 144 F. Supp.2d 640, 644 (5^th Cir. 2001); see also Smith v. Salish Kootenai College, 434 F.3d 1127, 1131 n.1 (9th Cir. 2006) (quoting Stock West Corp. v. Taylor, 964 F.2d 912, 919 (9^th Cir. 1992)) (stating that, “ordinarily, so long as there is a ‘colorable question’ whether a tribal court has subject matter jurisdiction, federal courts will stay or dismiss an action in federal court ‘to permit a tribal court to determine in the first instance whether it has the power to exercise subject matter jurisdiction in a civil dispute between Indians and non-Indians that arises on an Indian reservation.’”); see also Stock West Corp. v. Taylor, 964 F.2d 912, 919 (9^th Cir. 1992) (explaining that “by colorable we mean that on the record before us, the assertion of tribal court jurisdiction is plausible and appears to have a valid or genuine basis.”)

See McDonald’s v. Crazy Thunder opinion attached to submission.  Judge Johnson went on to note that:

There are four exceptions to the exhaustion requirement. First, the rule does not apply where an assertion of tribal court jurisdiction is motivated by harassment or made in bad faith. Second, the tribal court exhaustion rule is inapplicable when the tribal court action violates express jurisdictional prohibitions. Third, the tribal court exhaustion rule does not apply if exhaustion would be futile due to an inadequate opportunity to challenge the tribal court’s jurisdiction. See Nat’l Farmers Union, 471 U.S. at 857 n. 21. Fourth, the tribal court exhaustion rule does not apply “when . . . it is plain that no federal grant provides for tribal governance of nonmembers’ conduct on land covered by . . . [the] main rule [outlined in Montana v. United States] so the exhaustion requirement would serve no purpose other than delay.” Nevada v. Hicks, 533 U.S. 353, 369 (2001) (quoting Strate v. A-1 Contractors, 520 U.S. 438, 446 (1997)).

The Tenth Circuit Court of Appeals explained that if “none of the National Farmers exceptions is present, the court must then make an inquiry whether to abstain based on [comity] concerns. So long as the policies behind the tribal exhaustion rule are served by its application, ‘comity requires the parties to exhaust their tribal remedies before presenting their dispute to the district court.’” Kerr-McGee, 115 F.3d at 1507 (quoting Texaco, Inc. v. Zah, 5 F.3d 1374,1378 (10th Cir. 1993)). A court must analyze whether it should apply the tribal exhaustion rule “based on comity concerns for Indian tribes in maintaining their remaining sovereignty.” Kerr-McGee, 115 F.3d at 1507. Three specific comity concerns are advanced by proper application of the rule: (1) furthering congressional policy of supporting tribal self-government; (2) promoting the orderly administration of justice by allowing a full record to be developed in the tribal court; and (3) obtaining the benefit of tribal expertise if further review becomes necessary. Petrogulf Corp. v. Arco Oil & Gas Co., 92 F. Supp.2d, 1111, 1113 (D. Colo. 2000) (citing Kerr-McGee, 115 F.3d at 1507)).

See McDonald’s v. Crazy Thunder opinion attached to submission.

            In McDonald’s v. Crazy Thunder, the Plaintiff’s challenging Tribal Court jurisdiction claimed that all four of the exceptions were applicable, while the Defendants asserted that none of them were.  Judge Johnson examined the exceptions in great depth.  He found that one of the exceptions was indeed applicable. Judge Johnson noted that the United States Supreme Court held:

When, as in this case, it is plain that no federal grant provides for tribal governance of nonmembers’ conduct on land covered by Montana’s main rule, it will be equally evident that tribal courts lack adjudicatory authority over disputes arising from such conduct . . . Therefore, when tribal-court jurisdiction over an action such as this one is challenged in federal court, the otherwise applicable exhaustion requirement must give way, for it would serve no purpose other than delay.

Strate, id.

c.       A note about jurisdictional challenges.

Jurisdictional challenges can present a difficult topic for any court involving complicated issues of law, facts and even policy. This is particularly true in regards to the issues faced by the Tribal Courts and the Federal Courts in this context.

To start with, the Federal Court sits in this context as a court of original jurisdiction, not as an appellate court, as to the issue of Tribal Court jurisdiction. There exists no way in which to appeal a Tribal Court decision to a Federal Court.  Nor is it possible to remove a Tribal Court case to Federal Court, unlike the situation involving removal of a State Court case to a Federal Court.  The general Federal policy is to recognize comity concerns and allow the Tribal Court to act first.  The Federal Court can then be asked to consider the jurisdictional question as an original question, rather than as a court offering an appellate review.

This means that frequently the jurisdictional questions are never decided, in this dual system, with what must be regarded as finality.  The Tribal Court, of course, does rule with finality within its system, but an early Federal decision, no matter how much it might comment on jurisdictional questions, does not decide the jurisdictional issue if it allows the Tribal Court case to proceed due to comity concerns. This is well demonstrated by a case involving two panel members here today, Corey Johnson v. Marathon Oil Co., in which the early Federal decision actually only went to comity, and allowed the Tribal Court case to proceed to trial, and then to Tribal Court appellate review.  Subsequently, in the second Marathon Oil Co. v Johnson case the Federal Court was asked to determine the question of jurisdiction, the Tribal Court remedies having been exhausted, but it never was able to enter an opinion, as the case settled before the jurisdictional question could be determined.  Therefore, in the United States District Court for Wyoming, there are very few cases that have actually addressed issues of Tribal Court jurisdiction.

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[1] King Philip’s War, 1675-1676 was a major New England Indian War and one of the first to rise to the level of a full scale protracted war.  It has recently been the topic of Nathanial Philbrick’s book Mayflower, published in 2006.

[2] The general history of the American Southwest in the American Frontier period in Hampton Side’s 2007 book Blood and Thunder.

[3] Nathanial Philbrick, having written on King Philip’s War, has now authored a just released book dealing with the Battle of the Little Big Horn, George Custer and Sitting Bull.

[4] To a degree, the dispute even had a pre Revolution origin, as the Crown’s attempt to restrict migration to lands west of the Appalachians, which was based on its assertions of ownership of that land, was regarded as one of the “Intolerable Acts” given rise to the Declaration of Independence by the Continental Congress.

[5] This would result in compensation to the Eastern Shoshone tribe in 1937.

[6] This is the website of the Wind River Indian Reservation Tribal Court.

[7] http://shoshone-arapahotribalcourt.com/images/Title_II_SALOC-11-04.pdf

[8] The Northern Arapahoe Code may be found at http://www.northernarapaho.com/tribal_code.

[9] Law & Order Code Section 14-1-2.  Contribution is addressed at Law & Order Code Section 14-1-3.

[10] This relates in part to a disagreement on the validity of grants of Reservation territory back to the United States.