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 Note, this is out of date.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.

---

[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.

Churches of the West: Roman Catholic Blessed Sacrament Mission Church, Ft. Washakie Wyoming

Churches of the West: Roman Catholic Blessed Sacrament Mission Church, Ft. Washakie, Wyoming

This is Blessed Sacrament Mission Church in Ft. Washakie, Wyoming. Ft. Washakie is the seat of government for the Wind River Indian Reservation, a very large Shoshone and Arapaho Reservation in Wyoming.

The Big Speech: There the Government is the God

Once abolish the God, and the government becomes the God. That fact is written all across human history; but it is written most plainly across that recent history of Russia; which was created by Lenin. There the Government is the God, and all the more the God, because it proclaims aloud in accents of thunder, like every other God worth worshipping, the one essential commandment: 'Thou shalt have no other gods but Me.' 

G.K. Chesterton: Christendom in Dublin

Surprised by death

 The funeral procession of John J. Pershing.  Who died at age 87 after surviving several wars, tropical diseases, horse wrecks, and Army cured meats.

I should note that I started this post a really long time ago.  It was just after the death of Joan Rivers, the reaction to which inspired the post. But like a lot of posts on this blog, it has lingered a really long time.  I thought about discarding the draft entirely, but a new event caused me to revive it here as I think it's related.  Only the first three paragraphs and sentence of the fourth were written in the original draft, and even they aren't quite the same as they original were.

One of the very first posts on this blog dealt with human longevity.  There's a common erroneous assumption that human beings "live longer" now than they used to, which is completely incorrect. Rather, they don't suffer untimely deaths as frequently as they used to.  People tend to believe these are the same thing, as we earlier discussed, but they are not.  Rather, women are much less likely to die in child birth in their 20s (or even teens).  Children are much more likely to live past age seven than was once the case.  Hardly anyone has a team of horses get away with them and falls into their hay rake, etc.  And we don't fight nearly as many wars as we used to, even though we erroneously believe we do.  Indeed, we fight so few that the death of a single serviceman now makes the news, where as it wasn't all that long ago that the death of a hundred or more, or even a thousand or more, was barely news.  But we aren't living any longer, if we aren't untimely killed, than we ever did.

Still, we are very insulated from death.  Much more so than ever before in our history.

 Funeral procession of Secretary of War James William Good, age 63. Good died due to a peritonitis following a ruptured appendix.

And this insulation, not common for most of our history, and uncommon outside the western world, means that death somehow really surprises us. The reaction to the death of Joan River provides ample evidence of this, as well as our obsession with things that only marginally impact the topic of our won ultimate deaths.

 Funeral procession for Theodore Roosevelt, Jr.  The former President died at age 60, the age that he had actually predicted as the one at which he'd meet death.  That's young, but Roosevelt had survived nearly lethal childhood asthma, severe horse accidents, malaria and a gunshot wound. The last two items he never really recovered from and were sustained in his 50s, after which the death of his son Quentin in World War One seemed to combine to end his life.

Joan Rivers was 81 years old.  At age 81, death is around the corner every day.

For that matter, unless you are simply oblivious to it, once you are up past your mid 40s, quite frankly, death is hanging around.  You have to be a truly exceptional person to have reached your mid 40s, and not know somebody else who was your approximate age, who has not passed away. And by that I don't just mean tragic accidental death.  I mean death due to disease or the like.  Some of that, at that age is due to really  hard living in some circumstances, but starting around that time, your fellows start to pass on.  It's hard to believe at first, but by the time you are in your early 50s, you'll start seeing names you recognize as your old high school colleagues who have passed.

Still, early death, as opposed to longer lifespans, isn't nearly as common as it once was, and on a related note, chronic injury isn't as well.  In the Western World in which we live, more people live out their full lifespans than every before because they don't die in accidents or by violence, and they also, for what it is worth, are far less likely to be afflicted by chronic illness.  At one time, according to some analysis I once read, the average American male had a fairly severe chronic illness by the time he was in his 40s, this being in the mid 18th Century. Given that most American males did manual, probably agricultural, labor at that time, and that a lot of them had fought in the Civil War, that's no doubt true.  Indeed, Jefferson's comments about hoping his children would be able to avoid war and manual labor have to be set in this context.

 Shoshone Chief Washakie, who survived decades of warfare, harsh living conditions, horse accidents, and a limited meat centered diet and died at least age 100, if not a little older.  Not everyone fell to injury or disease by any means.  Indeed, the vigor of this "pale diet" adherent says something, perhaps, about how we ought to approach things.

A byproduct of that is that those of us who live on past these various decadal marks are a lot less likely to have witnessed the death of a fellow our age or younger, which is definately not the case for people in earlier decades.  If you were, for example, living two centuries ago, chances are pretty high that you'd see somebody die of an accidental death at some point.  I have seen that a couple of times myself, and those occasions live on as fresh memories in my mind, but I think that's fairly rare for most Americans today.  Rather, we tend to read about  somebody dieing, rather than experiencing it, unless we live in one of hte reatlively small demographics in our soceity where witnessing such things remains relatively common.

Additionally, we also live in an era when we've gone to a system of marginzlaing the old so that we don't wintess them in tehir dotage.  If a perseon makes it up into advanced years with a sharp mind, we do tend to see those people, and therefore they define our mental image of old age, and where we think we ourselves are going.  But the sad truth is that many more people do not experience this.  Indeed, what has ironically occured now that we've combined a highly mobile society that has expectations of high employment output, with success in combating illness and injury, is that we now find that many more of us live in a sort of warehoused fashion with declined mental ability as we get old.  This is also a huge change.  In an earlier era, a very old person, including one who had gone "senile", was necessarily housed and taken care of by a family member.  Now this is increasingly rare.  And I don't wish to seem santimounious about this, so I'll note that my own mother lives in our town in an assisted living facility, her once sharp mind now very much dulled.  But she doesn't live here at our house, as would have once been the case, as we simply have no ability to do that.

The combined effect of this is, therefore, that we don't tend to see younger people die very often, rather we occasionally, but only occasionally, read about that happening.  And we don't really even see old people die very often either.

That has given us an odd view of death. And of life.

Given that we experience death so infrequently now, we now have in mind that its rare.  It isn't.  It's inevitable, and inevitable for everyone.  Together with birth, it's the single experience that unites us all as its the same everywhere for everyone, in the greater sense of things.  

But, because its now so rarely experienced, we act shocked by anyone's death. 

Take again the example this starts off with, Joan Rivers. She was old.  At that age, people die.  That's not unexpected. That's the absolute.

Oh, sure, not everyone who dies at 81 died a purely natural death, but the fact of death at 81 should not be a surprise to anyone.

Moreover, things like this give us the fairly silly World Health Organization warning that cured meats cause cancer.

 Oh my!  An Italian American butcher risking the public health, according to the WHO.  It's nice to know that this branch of the United Nations is protecting us from cured meats while the UN at general stands around and lets the Middle East burn.  Or maybe the plan is to bomb ISIL with brots in the hope that a tiny percentage of them will keel over decades from now.

First of all, this isn't news.  That curing, which is largely a chemical process, can cause cancer has been known for a very long time, as it was associated with cultures  that ate massive quantities of cured meats by necessity.  So, for example, if you were a 19th Century German you'd have a heightend risk as you'd probably be eating sausage all winter long.

But even at that, most Germans and Poles didn't die of cancer due to sausage and, today, nobody can yell at a German, as an insult "you sausage eating Kraut!"

 German born American Technical Sergeant buying sausages from a Germain born butcher, in New York City, during World War Two.  I suspect that after enduring immigration and fighting for his adopted country against his native one, sausages didn't kill this guy.

Which gets us to the point on this.  While there are real things that pose huge health risks, such as smoking cigarettes or chewing tobacco, we're now so spooked of death that we actually will undertake to make our lives absolutely miserable in order to convince ourselves that we can actually avoid it.

That's what a warning like the WHO's achieves.  Unless you are seriously eating large quantities of cured meats, and very few people do, you have very little risk from them.  And frankly even if you are eating a lot of them, you risk isn't all that great really.  But we're at a point where every week we get a "don't eat that!", "don't eat this", followed, quite often, by advice the following week that we should, in fact, eat those various things.

All of this is that we've now made the Western World so safe that we're at the point that we're dealing with the statistical margins.

Now, the advance of safety is a fine thing.  Cars, for example, are so much safer in a collission than they were even thirty years ago it isn't even funny.  But at some point, and we crossed over it some time ago, worrying about the margins of things is actually dilibating.  If you have to worry that a hot dog is going to kill you, you are truly at the point where you must have nothing else to worry about, and are getting a little out of sorts thinking wise.

You aren't going to live forever.  No point in trying to pretend you are.  You are going to die one day. But every other day, you aren't. So, go have a nice plate of sausage and, after dinner, have yourself a brandy and cigar.  What the heck.

Flood Plains

Blog Mirror: From Small Farming to Urban Agriculture

An article that explores subsistence farming in California.

Lex Anteinternet: The City of Casper Smoking Ballot Issue

Lex Anteinternet: The City of Casper Smoking Ballot Issue: REFERENDUM BALLOT PROPOSITION ON ORDINANCE NO. 15-13:   AN ORDINANCE AMENDING CERTAIN SECTIONS OF CHAPTER 8.16 OF THE CASPER MUNI...

Polling Stations:

County Clerk's election office, and;

Roosevelt High School Gym 140 E K ST	Central Wyoming Fairgrounds Hall of Champions 1700 Fairgrounds Rd
Senior Citizens' Center Activities Room 1831 E 4th ST	Restoration Church 411 S Walsh Dr
Casper Shrine Club 1501 W 39th ST	Community Health Center Second Floor 5000 Blackmore Rd

REI to close on Black Friday

REI has announced that its stores will be closed on Black Friday.

REI, the outdoor outfitter, has always been pretty darned granola, but that's been more the case since perhaps the late 1980s.  They've also grown in that time as well.

I really like REI, although as noted in a prior post here, the experience of going to REI was more fun prior to the Internet.  The fact that everything is now available on the Internet has diminished the experience. Still, they are a pretty neat outfit to visit, with piles of outdoor gear.

Well, the more power to them.  Black Friday, the Friday after Thanksgiving, is a pretty sorry spectacle in a lot of ways.  Emphasizing that its employees will get the day off to enjoy the outdoors is a good thing.

Holscher's Hub: More of the Stone Ranch

This is posted over on our photo site, as Holscher's Hub: More of the Stone Ranch.

It is an historic structure, but its the very astute observations by Neil that causes me to link it over here, as it fits in very well to the theme of this blog, and the comments are so interesting.  I suggest following the links for the comments.

Who makes up the legislature

Joan Barrons of the Casper Star Tribune wrote a very interesting article that was published in last Sunday's CST regarding the makeup of the state's legislature.  It also addressed national trends in general. It was quite interesting, and more than a little surprising really.

 

For one thing, something that we tend to hear here all the time turns out not to be true.  We're continually told that the legislature is dominated by farmers and ranchers.  Not so, as it turns out.  It was once true, however.  "Twenty years ago, nearly one-third of House and Senate members were ranchers or farmers." Barrons reports.  Now only three are.  What a decline.

I'm  not sure what I think about that, but it worries me.

Lawyers, whom people everywhere think dominate the legislative process, aren't in Wyoming, at least in terms of numbers.  "The House currently has seven active attorneys, the same number as 10 years ago, and two fewer than 20 years ago in the 1995-96 Legislature."  Interesting statistic.  I know three of those lawyers, and up until recently I knew four.  One just retired.  Odd to think that I personally knew half of the lawyer contingent.

Barrons notes that in Wyoming the generally small number of lawyers has always been the case, although there were once more in the legislature, but that they tend to do more talking than anyone else, and hence the get noticed. That makes sense to me. 

While on the topic of lawyers in Wyoming's government, I do think it should be noted that the current governor is a lawyer.  The prior governor was also a lawyer.  The one just prior to that was a farmer and businessman, but his predecessor was also a lawyer.  There's been a lot of Wyoming governors who have been lawyers.

Barrons notes in regards to lawyers that they did in fact dominate many state legislatures at one time, but the demands of their professions and the demands of being a modern legislator have made for an overall decline in lawyer legislators nationwide.  Indeed, I've frequently wondered how the lawyers I know who are legislators were able to do that juggling.

Barrons reports that businessmen now dominate our legislature.  I suppose I should have known that. So ours has gone from one which was dominated by ranchers to one that is dominated by businessmen.  An interesting evolution.

Shoe Repairs

I took by cowboy boots to be resoled yesterday.

They were long overdue. 

Twenty-five years ago there were two shoe repair shops open downtown.  I always went to the one for shoe repairs, which wasn't hugely uncommon as cowboy boots, good boots, and men's dress shoes can be resoled.  As I used to walk to work quite a bit I often found I'd worn soles and heels out and needed them replaced.

I haven't walked to work routinely for a long time and don't live where I easily can, but still wear boots and shoes that can be resoled.  But it's tough to find a cobbler now.  The downtown stores closed and for awhile I couldn't find anyone at all.  A friend recommended somebody to me when I needed repairs to my Olathe cowboy boots, but the repairs weren't really satisfactory to me. Fortunately, the store where I bought the boots years ago recommended another fellow to me who is located in a small adjoining town. He has a cobbler's shop in his garage and is doing it in his retirement.  He does really nice work.

But what an odd development.  At one time cobblers shops were really common. There were even two hear when I started practicing law.  Now the fellow who is repairing my boots is doing it as a job he enjoys doing in his retirement.  I'm glad he does, and it actually does look like a fun craft. But the whole experience is quite an evolution in local necessary trades.

Wyoming expects $600,000,000 decline in revenues over the next three years

The paper today relates that the state's tax intake will decline over $600,000,000 over the next three years. 

Wow.

We pass 100,000 views!

Service Shoes. Everything old and ugly is hip and cool again.

 Service shoes, made by Chippewa.  I've had these for 25 years.

In my email in box this morning is an advertisement from Brook's Brothers for, of all things, Red Wings boots of the type that I call "service shoes.

Service shoes are an old Army pattern, dating back to early in the 20th Century (probably to around 1903 or so) which are built on a Munson Last.  They are really plane.  I've had a pair of Chippewa service shoes that I wear for general kick around stuff that I've had now for 25 years, and they are still going strong.  I didn't know that Red Wing made them as well.

The fact that Brooks Brothers, the legendary men's clothier, is offering them says something, and I guess what it says is that they've become hip somehow.  I wonder how that happened?

Well, they certainly are a durable pattern.

Does this make sense? Busing

I went out back this morning to get some trousers off of my illegal clothes line, and found that at that early hour, 7:00 a.m., a school bus was across the highway picking up kids.

7:00 a.m.

And this for a short bus ride.

Going back in, and remarking to my wife on it, she noted that the rural kids have already been on the bus for an hour.

Does this really make sense?  With our "school of choice" system here, we're busing kids all over town from really early in the morning.  Well, not "we", the School District is.  Our kids have always been taken to school by us, their parents.

When I was a kids, I walked to school the entire time I was going.  But at that time, our school choice was geographically determined.

The state picks up the tab for all this busing, but I have to wonder in an era of declining mineral revenues if they'll put a halt to it.  Frankly, in a lot of ways, it doesn't make very much sense.