Monday, November 16, 2015

Understanding Syria

Quite some time ago I did a post here called Understanding Iraq.  To my surprise, it's gone on to be one of the most popular posts here.

I've never done one titled "Understanding Syria", and hence this thread.  But I've nearly done so early on when the civil war in Syria began to get serious attention here in the U.S.  That thread from 2013 entitled And Now Syria focused on whether the US should become involved or not, but as it addressed the situation in that unfortunate land and gave some explanation of its background. Given the ongoing deterioration, and the fact that the situation in Iraq and Syria is now much different than it was then, I'm repeating a bit of that below.


 WWI vintage poster for Middle Eastern relief.

Some time ago I wrote an item here on what seemed likely to be an intervention in Syria's civil war.

And now, its being debated in Congress.

I'll applaud the President for submitting this to Congress.  Just last week or so it appeared that the President was set to simply order the Navy to conduct strikes against Syria, in retaliation for the Syrian government using chemical weapons on its own people, without bothering to bring in Congress, but the British Parliament turned that around. That only occurred as Parliament was being asked by Prime Minister David Cameron to support the upcoming U.S. strike. Parliament said no.  That caused the President, in what now seems to be a miscalculation, to seek authorization from Congress.  Right now, to my surprise really, Congress doesn't seem  likely to grant that authority. As a result, there's some discussion on the President ordering the strikes anyway, which would be a massive political miscalculation.  Of our allies, there's a movement in Canada to require their PM to follow Britain's lead and submit the question to Parliament, which would likely vote no.  France appears to be the only country that is likely to support us, but probably for historical reasons that we have a very dim appreciation of.

 Bedouin riding through Roman triumphal arch, Palmyra Syria, 1939.

In Congress views on this topic are split three ways.  One camp wants to authorize the President's proposal, which is to make a limited strike over a 90 day period in retaliation for the government's use of chemical weapons on civilians.  Another wants to stay out of the war entirely.  A third will vote no as, ironically, it wants to jump into the war, topple the government and create a new one we, we think, will like better.

That's basically John McCain's position, or at least that's his position by implication. But do we dare to suppose that's realistic?  And if it is not, do we dare get into this thing at all?  Do we even understand Syria?

 Straight Street in Damascus. This street is so old its mentioned in the New Testament.

Americans tend, to an almost charming degree, to believe the diametrically opposed beliefs that the United States is the best country in the world and that every other country is just like us.  What country may be the best in the world is a subjective matter, but objectively, not every nation and not every people are just like us.  Far from it.

Most nations in the world, or at least most successful ones, are "nation states".  A nation state is a country made up of one nation. This notion, or rather this fact, is so contrary to our own experience that generally we don't really grasp what it means.  Indeed, in our pledge of allegiance we even state that we are "one nation, under God."

"Syrian" (almost certainly Lebanese) children playing in the streets of New York City.  There is a huge global diaspora of Lebanese.  According to some, the Lebanese diaspora is the most successful, in terms of business and wealth, in the world.  The Lebanese are distinct for a variety of reasons, including that at the time of the formation of their country Maronite Catholics made up a majority of the population.

Perhaps, over time, the American "nation" has become just that, but most stable countries in the world have been formed by nationalism, and that nationalism long ago separated out the borders of the country along cultural boundaries. This appears to be changing in the modern world, but it's still largely the case. That is, France is a country for the French.  Italy is a country that united in the 19th Century in an effort to combine all the Italians, and some who were sort of Italians, into one country.  Germany united in the 1870s as a confederation of German principalities.

 Roman temple for Emperor Diocletian, a figure frequently noted for persecution of early Christians.

Conversely, the Austro Hungarian Empire flew apart in the early 20th Century partially because the constituents of that empire no longer wanted to be ruled by a common government.  Hungary, Austria and Czechoslovakia became separate countries, with that process rolling along right up until almost the present day, as Czechoslovakia, made up of the Czechs and the Slovaks, split into two separate countries, each of which is a nation state.  We witnessed something similar to this in Yugoslavia in the 1990s, when a country made for the "south Slavs" busted up along ethnic lines that essentially only they could discern.

Not all modern countries are nation states, of course.  The United States, for example is not. And countries that share a common origin to that of the US are not.  That is, Canada and Australia, also nations that were formed via the immigration from many parts of the Europe and even the globe aren't. The United Kingdom isn't, although in the true European fashion the various nations that make up the UK; IE., England, Scotland and Wales, have remained nations rather than blending to a surprising degree. And as noted, this was so much the case for Ireland, once part of the UK, that it violently departed.

A person could legitimately ask, of course, what the heck this has to do with Syria, but it has a great deal to do with it.  Syrian isn't a nation state.  And not only isn't a nation state, it isn't like the US or Canada in which the various ethnicities mix fairly readily. They don't mix.

A person might find that surprising, and many Americans apparently don't realize this at all.  We keep hearing about "they Syrians" but who are they?  A person with an ear for history might presuppose that the Syrians of today are the Assyrians of old, but they'd only be very partially correct.

 Syrian Bedouin, 1939.

Assyrians do indeed living on, in some fashion, in the DNA of many Syrians today, but modern Syria isn't he Assyria of old.  Even by the time of Christ what is now Syria had come under the influence of some foreign populations, namely the Greeks, which is why Syrian actually fit so seamlessly into early Christian history.  The coastal region of what was in very modern times Syria was at that time, as now, Lebanon, and that area had its own ancient populations that contributed to its nature, namely the Phoneticians, who may have descended from the Philistines.

 Syrian gypsies.

As noted, Syria was a region of the Middle East whose population took rapidly to Christianity, and there have been Christians in Syria ever since the 1st Century. Christianity took so rapidly to Syria that Damascus was where St. Paul was headed in order to persecute the Christians when he had his Epiphany.  And that also tells us that there were Jewish populations there at that time as well, but there were throughout the Middle East at the time.  Christians were first called that in Syria, Antioch to be precise, although that city is now in Turkey, on the Syrian border.

Ruins of Crusader era church in Syria, 1939.

Like the rest of the Middle East, Syria was invaded by the Arabs during the early Islamic period, and like places where there was a strong Christian presence, the Arabs were never able to fully supplant the native Christian population. This has very much been the case in Syria.  Today, Syria is made up of Islamic populations, Christian populations, often in their own areas, Alawites (a minority Moslem group), the Druse and some Kurds.  None of these groups has much in common with the other, except by the exent to which the minority groups, the Christians, Druse and Alwaties fear, and have reason to fear, the majority Moslem Arabs.

 Representatives of the Orthodox in the US, following the Russian Revolution.  In addition to Maronite Catholics, Syria has populations of Antiochean (Syrian) Orthodox.  Contrary to the way history is sometimes imagined, Roman Catholic Crusaders, upon taking Antioch, restored the Antiochean prelate to his seat.

The Ottoman Turks occupied and governed Syria for eons, until the Ottoman Empire disappeared due to World War One.  France received Syria, with which it had strong historical ties, as sort of a consolation prize for helping the British defeat the Turks during the Great War.  France occupied Syria from 1918 until 1946, keeping it through several changes in the French republican government and even into the Vichy period.  Syrian troops served the French in World War Two, both in the Vichy cause and the in the Free French cause. In some ways Syria was the French consolation prize for its role in the Middle East in World War One, as the French also fought the Ottoman's there, but it also recognized that France's role in the region existed for historic reasons going back to the Crusades. Many of the Christian Kingdoms of the Crusading period saw significant French colonization and a recent work by a British author has made the point that during this period not only were a majority of the residents Christians (and were well after the fall of the Crusader kingdoms) but that in some areas, but not all, they were basically French colonies. French trade with the region kept on keeping on in to modern times, and its worth noting that about the only government that appears inclined to get into Syria now is France.

 The British High Commissioner for Palestine, left, and the French High Commissioner for Syria, right, with young lad in middle, 1926.

Anyhow, while the French have a pretty poor record in regards to the success of their 19th and 20th Century colonies, in terms of becoming modern states so their experiences must be used as examples with caution, Syria did have the benefit of both Ottoman and Syrian administration and that doesn't appear to have lead to a real concept of forming a modern state really. If France was unable to do it in 20 years, I don't think we'll be able to in ten or fifteen, or whatever period we'd be willing to invest in the country if we got in full bore.  And to suppose that the Syrian rebels are going to create a parliament and recognize civil liberties without European or American boots on the ground is absurd. The French, we might note, had the benefit of being successors to the Ottomans, which meant that the Syrian population wasn't really inclined to be hostile to a foreign overlord, as they now will be under any scenario.

 Kurds, a stateless people, are native to a region encompassing parts of Turkey, Syria, Iraq and Iran.  The Kurds are actually responsible for the final stages of the spread is Islam, not the Arabs, and have given it an enduring memory of a unitized theocratic state and the false myth of enduring a Christian invasion. Ironically, not all Kurds are Moslems today, nor have they ever been.

On French administration, one thing worth noting is that the French came to the conclusion that it wasn't possible to rule Syria as a single political entity, and they ultimately created districts on ethnic lines. Lebanon exists today for that reason. The Alawites and the Druse also had their own regions. We always seem to think that any country we step into makes sense as a nation, and that would go counter to the modern experience of the Middle East in general, and Syria in particular. That is, why Syria at all? For that matter, why Iraq? It probably makes more sense that these countries be busted up into their ethnicities, which do not mix. But we won't do that. And whoever we prop up isn't going to want to do that either as no government ever desires to become less powerful and control less country.  In other words, the Kingdom of Sweden might have been willing to recognize that Norway wanted to be its own country in 1903 without fight, but Syria isn't going to do that with any of its minorities. For that matter, even the highly civilized United Kingdom fought to keep disenchanted Ireland in the group form 1918 to 1922, and I doubt that any Middle Eastern nation would do less.

 Druse refugees, 1925. The Druse are an Islamic sect despised by other Islamic groups.  They live in Lebanon, Israel and Syria today.  Early opponents of the Turks, and allies of the British in World War One, today they are closest to Israel.

Regarding the ethnicities, examination of the sides in Syria ought to really give us pause. Syria has some really distinct ethnicities.

By and large, Syrian Christians are afraid of the rebels, as they fear that a rebel victory will mean their end, and in my view it probably would. Alawites feel the same way. We (the US) feel that because the government is brutal, we should depose it, but should we depose it in favor of a probable bigger brutality? I just can't see a way out of this mess that doesn't leave us with blood on our hands in one way or another.

On that, it's interesting to note that some 20 years ago or so the Syrian government crushed another rebellion, and that's come up in this context from time to time. But, what of that rebellion? It was by hard core Islamist. Had it succeeded, Syrian would be an Arab Iran today. The crushing of the rebellion was brutal. That's inexcusable. But had it not been crushed, the result would have been grim for us. Do we even want to have to be associated with the results of a civil war there today, given that any result is grim from our prospective?

Indeed, when we look at the overall state of the Middle East, I think its' general folly to view any of the existing political entities as likely to be permanent. No government there looks stable long term, and those that do are challenged by demographics. That being the case, it might be best to view the Middle East today the way we viewed Eastern Europe prior to WWII. A mysterious backwater that hopefully will muddle its way out of the mess its in on its own. One thing we can be thankful for is that with changes in technology, the Middle East is becoming less and less significant economically or in terms of material resources, so we might actually hope for a day when it can conduct its regional spats without us having to be too afraid of the results.

Postscript

When we posted this one year ago, it probably looked like we were engaging in a rather paranoid example of Realpolitik.  Well, events here have really born us out.  Those who were cheerleading for intervention in Syria last September, when we posted this, would have effectively handed Damascus to the Islamic State, which proved to be sufficiently powerful as to be able to expand its old fashioned religious war, with modern weapons, into Iraq and nearly topple that government.   The Presidents reluctance, therefore, to intervene in Syria proved wholly justified.  Indeed, it now appears inevitable that we will soon be committing air assets over Syria and bombing the same enemy that the Syrian air force is.

Make no mistake, Assad is not in the warm and fuzzy category of leader, and Syria deserves better.  But Syria also isn't Ireland, whose rebels will adopt a parliament and immediately become a model of democratic behavior.  It has a long way to go, and we best be careful lest it become part of the Islamic State, or something like it.
A lot of what I wrote about back in 2013 remains true, but the situation there, and in Iraq, is now so far gone that it cries out for international action, and has been so crying out for months and months.

Now, France has been attacked either by ISIL or ISIL's confederates and sympathizers.  Floods of Syrian refugees have hit Europe. The country is nearly destroyed and has been reduced to an insane land of conflict, with the only really semi functional parts being those thing slices so firmly controlled by one side or another that some semblance of a remote normalcy exist.

What could have been avoided earlier on no longer can be.  The western world has no choice but to address the chaos in Syria, and that can only be done militarily.  That's because Syria is effectively a wild lawless land which is part of the Islamic State, a state in reality if not in recognition. And the Islamic state will murder anyone who is not a Sunni with its same radical views, and it will export its war everywhere.  It must.

Courthouses of the West: Hot Springs County Courthouse, Thermopolis Wyoming...

Courthouses of the West: Hot Springs County Courthouse, Thermopolis Wyoming...:


Friday, November 13, 2015

Serialized stories in newspapers

I've been reading the great Japanese novel Musashi recently.  It's a fictionalized account of the life of Miyamoto Musashi, the legendary Japanese samurai.  I rarely read novels, and normally Asian fiction wouldn't be my cup of tea, but it is very good.



This novel, which is sometimes called Japan's "Gone With The Wind", was originally run as a serialized story in a newspaper.  Indeed, the chapters of the book are fairly short, which is likely explained by that.

This wasn't uncommon anywhere.  I think, for example, A Mule for the Marquesa, which was made into the movie The Professionals, was likewise a serialized novel before it was released as a book, and then later a movie. 

Everyone knows that newspapers are in trouble. And while our local paper won't admit it (it's part of the larger Lee chain) it's a shadow of its former self.  The paper has columnist, most of whom I'm not impressed with.  I wouldn't, for example, continue to subscribe to the paper just to read what Mary Billiter or Edith Cook have to say every week, although in fairness it does have columnist that I really like to read.

But what I would note is that I'll find myself following cartoons that have story lines, even if I don't really like the cartoon.  I read, for example, Mary Worth and Rex Morgan everyday, even though I really don't like either cartoon.  It's hard to drop off a story. When the paper used to run Prince Valiant on the weekend it was the same way.  I don't really like the cartoon, but I'd get caught up in the story line and find that I was resolving to read that line out and then stop reading the cartoon.

I suspect that this would be all the more the case for a well written serialized novel.

So, in this era when newspapers are biting the dust everywhere, and even major papers like The New York Times are increasingly irrelevant, why not revive this old practice?  I suspect that there are a lot of local novelist who could turn out the appropriate length of text every week, or at least every month, and people would follow it.  And in an era when certain types of novels have a hard time getting to press, but we all claim to love the local, why not give this a try?

Marrying the profession

According to one survey, farmers, fishermen, and lawyers, are the professions that are most likely to see intermarriage in the profession.

That is, farmers are likely to marry another person from a farm family, lawyers are likely to marry another lawyer, etc.  Not that they all do, by any means, but they do so more than, say, accountants marrying another accountant.

Makes sense for farmers, I think.  Fishermen and lawyers surprises me, however.

Thursday, November 12, 2015

And the economic news continues to darken

Earlier this week Arch Coal announced it was considering bankruptcy, just at about the same time the Governor announced that he expected to be able to ship coal to Asia.  I'm not sure if the Governor really believes that, but I doubt very much that's going to be the case.  Things are looking increasingly bleak for coal.

And the state's community colleges are now preparing for an economic slump, the Tribune reports, with one even putting in place a hiring freeze.  I'm not sure that they'll see a drop in enrollment, like they fear, as at least in the past an increase in unemployment in the young has tended to see an increase in the young seeking college opportunities, something I've witnessed personally. But they're wise to do some planning.

The Demise of the Magazine



When I was young, I was an avid magazine reader.

My father subscribed, when I was very young, to Life, Look, Time, Newsweek, Sports Illustrated, National Geographic, Sports Afield, Wyoming Wildlife and probably a few other journals. Seems like a lot?  Yes, it was, but it was partially a lot because he kept them for his office.  I don't think the National Geographic's ever made it to the office, but the others did. Anyhow, even as a young kid I read through quite a few of these, with Sports Illustrated being the least likely for me to read.

Even by the time I was a teen one of these magazines, Look, had disappeared and Life was on life support.  The others kept on keeping on, however.  As a teenager I regularly read Time and Newsweek, as well as Wyoming Wildlife and the National Geographic. When I went away to college my magazine reading dropped off quite a bit, but a girlfriend I had at the time bought me a subscription to The New Republic, which I still get.

Around here, we have subscribed to a variety of magazines of various interests, and indeed, I still get them.  I quit reading Time quite some time ago, however, and of course Newsweek as a print journal is no more.  I'm inclined to discontinue my subscription to The New Republic, which seems to me to be in a long slow period of decline which going from a weekly, to a monthly, and a change in ownership, has not arrested.

And now this past couple of weeks comes news about two well known journals that appear to be in, indeed are experiencing, trouble.

The one that sparks this entry is The National Geographic.  Once a standard of American scientific and cultural magazines, the magazines subscription based has massively declined over the past few years.  A while back the society that owned it sold its television rights to Rupert Murdoch's Fox network, which may explain why shows on The National Geographic channel seem to fall so far below the standards of the magazine.  About a year and a half ago the Society actually sold the controlling interest in the magazine to a Murdoch entity, which was news but not as big of news as a person might suspect.  I managed to miss it.

Since then there's been fears that Murdoch's control of the magazine would lead to a decline in its standards.  I haven't seen that, if its true.  There's also been fears that Murdoch's organization would start firing some of the staff, which has traditionally been lower paid than comparative journalists.  Now that's sort of come true, a bit.

National Geographic is now laying people off. That story has hit the news, but what's missed in it is that the people being laid off are support staff, in departments like legal, which the giant Murdoch organization otherwise has. Frankly, layoffs like that are justified.  I doubt the Lincoln Mercury division of Ford Motors, for example, has a separate legal department from Ford Motors.  But the entire story does shine the light on the sad decline of the magazine. The National Geogrpahic Society actually sold its flagship in order to raise money for the Society's endowment.  I get it, but that doesn't bode well for the future of the magazine or the Society.  I doubt it will survive long term.

Another magazine that's been in trouble for years and which I also doubt will survive has been in the news as well, that being the trash put out by an ossified freak whose main achievement is to help objectify women since the early 1950s.  I'm glad its in trouble, but  the reason that it is, is the same that the National Geographic is, the Internet.  Here the story is more grim.  The National Geographic has not declined and is simply the victim of free information.  The other magazine, on the other hand, helped take debasement out of the gutter and into everyone's homes and now it can't make a go of it, as the Internet allows trash to be circulated for free.  In other words, having helped pollute the culture, there's too much pollution everywhere in order for it to make a go of selling it.  

It's reaction has been a decision to take its models and send them back to the dressing room, apparently.  In doing that, it's would appear to be trying to occupy the space now occupied by a couple of other magazines directed towards men which will feature women, but not in the same purely objectified way, as they want to appear more gentlemanly and serious.  Ironically, that's the same way that the filth put out by this ossified freak became successful in the first place, as it took gutter trash literature and tried to dress it up, a marketing strategy that worked for about a decade before it was engaged in a race towards the bottom which it appears to now be loosing.  It's readership is also way, way off, and it appears doomed.  Indeed, I'm sure it is, and good riddance too, as while its not too late for the purveyors of such filth to reform, it's too late for the rag itself to do so.

Quite a change in a long period of time.  Magazines have an honored place in the American written landscape, and as far back as the mid 19th Century they were important means of conveying information.  We appear to see that era ending, except for specialty journals.

Wednesday, November 11, 2015

For Veterans' Day: In Memoriam by Ewart Alan Mackintosh who was killed in action on November 21, 1917.

So you were David’s father,
And he was your only son,
And the new-cut peats are rotting
And the work is left undone,
Because of an old man weeping,
Just an old man in pain,
For David, his son David,
That will not come again.

Oh, the letters he wrote you,
And I can see them still,
Not a word of the fighting,
But just the sheep on the hill
And how you should get the crops in
Ere the year get stormier,
And the Bosches have got his body,
And I was his officer.

You were only David’s father,
But I had fifty sons
When we went up in the evening
Under the arch of the guns,
And we came back at twilight -
O God! I heard them call
To me for help and pity
That could not help at all.

Oh, never will I forget you,
My men that trusted me,
More my sons than your fathers’,
For they could only see
The little helpless babies
And the young men in their pride.
They could not see you dying,
And hold you while you died.

Happy and young and gallant,
They saw their first-born go,
But not the strong limbs broken
And the beautiful men brought low,
The piteous writhing bodies,
They screamed “Don’t leave me, sir”,
For they were only your fathers
But I was your officer.

Tuesday, November 10, 2015

Confessions of a Writer of Westerns: Reading the Old Letters


Recently this interesting item was published on the blog noted:
Confessions of a Writer of Westerns: Reading the Old Letters: I spent much of the late afternoon and early evening reading through many letters written by Owen Wister. I never found what I was looking ...
It's an interesting entry in and of itself, but what it brings to mind to me is something I've written about here before, that being the stunning level of personal correspondence in earlier days.

Now, to be fair, in the age of email and instant messaging, people do write. And I'm actually a bit of an optimist in this area, as I think personal correspondence has actually revived a bit in the internet age, as has journaling.  None the less, the amount of personal correspondence that people once undertook is simply amazing.

 Mail Call, Army barracks during World War Two.  Forty years later mail call was still a big deal.  Amazingly, even in basic training we found time to write back.

Nearly any well educated person wrote letters at least as recently as mid 20th Century.  My own mother was an avid correspondent, writing her relatives and friends almost constantly, which they in turn also did.  My father was less of a correspondent, but when I went to university he wrote me regularly, and I in turn wrote him.  And I used to write a few friends I knew who had moved elsewhere.  Indeed, I wrote them quite a bit more than I know email the same friends.

There's something particularly close and personal about a written letter.  Closer than an email, although what it is, is hard to describe.  And there's something really telling that in earlier eras people wrote letters in vast numbers, and they saved them too, for our unintended benefit.  We're lucky they did, but it's hard to feel that something hasn't been lost by the disappearance of common correspondence, even if something has been gained by instant correspondence.

Letter writer, Mexico.  This man was employed as a scriviner for hire, a common occupation around the world at one time.

American Guide Week. 1941


From this week, in 1941.

Anyone ever see a copy?

Monday, November 9, 2015

More how you can tell you are really out of it.

1. When UW plays CSU, the legendary "Border War", over the weekend and you had no idea who won until you ran across the headline in the  newspaper (and you didn't read the article).

2. Al Roker came to your town and you have utterly no idea at all why anyone went to see him.  He's a weatherman, right?  And you have less idea why people are "proud" of the town for so many people showing up.  Eh?

Wyoming Fact and Fiction: Wyoming's First School

Wyoming Fact and Fiction: Wyoming's First School: Being an old school teacher, I am always interested in reading about early day schools and especially the schools of Wyoming. Like many...

Saturday, November 7, 2015

The Big Speech: War and Peace

I have put up, as best I might, with millionaires of my time when they decreed war, sudden and sensational war, as everyone admitted; mean and immoral war, as I believed. I have got used to millionaires when they dictate war. But if they begin to dictate peace I positively rebel.

G.K. Chesterton: Illustrated London News, Dec. 31, 1910.

Monday, November 2, 2015

Monday at the Bar: Courthouses of the West: Morrill County Nebraska Courthouse, Bridgeport Nebraska

Courthouses of the West: Morrill County Nebraska Courthouse, Bridgeport Nebraska


A Constitutional Convention? Think first.

There's an idea afloat to revive an effort in this year's state budget session to have Wyoming's legislature pass a bill supporting having a Constitutional Convention.  An op ed in the Star Tribune recently endorsed it.

It's a poorly thought out idea.

The concept behind such a convention is that the delegates could go and pass an amendement ot the United States Constitution requiring a balanced budget.

Leaving aside the question of whether or not such an amendment is a good idea, which is a topic of legitimate debate, the problem with a Convention goes far beyond that topic.  

There's no legal way to limit the scope of a convention.  Backers claim that this isn't so, as the charge of the Legislatures would be solely on that topic, ignoring for a moment that slightly under half the states would be sending delegates to a convention that they hadn't actually endorsed.  As a convention, a legal entity, is only recognized in the broad, rather than the narrow, those who believe that its scope can be limited are absolutely incorrect. A convention could do anything it darned well wanted to do.

And there's no reason to believe that it would limit its scope.  You can be assured that delegates would try to expand it. They have in the past after all, that's how we ended up with the United States Constitution in the first place.

Both liberal and conservative delegates would be licking their chops at a convention, and a person has to be naive not to believe so.  Yes, they'd address a balanced budget amendment, and probably pass one, but they would not stop there.

Liberals, whom by the time of the convention are highly likely to riding high on the election of a second President Clinton (note, I"m not endorsing her, I'm just reading the political tea leaves here, and that's how things look to be shaping up to me), would see it as a chance to do the following:

1. Wipe out the Second Amendment.
2.  Create a new equal rights amendment that creates an absolute a society that turns a blind eye to anything to do with gender whatsoever.
3.  Create new social and economic rights.

Conservatives, if you are gasping in horror at the possibilities, particularly under a new Clinton Administration, well you ought to be.

But Liberals, before you laugh with delight, Conservatives, who really control more states than Liberals, would propose the following:

1.  Reverse the U.S. Supreme Court's decisions on same gender marriage and when life begins.
2.  Define citizenship to eliminate the location of birth element to it.
3.  Bolster the Second Amendment.
4. Redefine the First Amendment.

Now, note, some of these things I might be in favor of myself.  I think the Supreme Court was wrong in Obergefell and I also think that the Court's 1973 effort at defining the beginning life was one way pathetic example of legal reasoning. 

But does anyone want to open all of this up to a convention?

I doubt it.

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 Childrens 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 decedents 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.