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 Note, this is out of date.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.

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.