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Note, this is out of date.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 (8th
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 (10th 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 (5th 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 (9th
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 (9th 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.
