Tribal Court Civil Jurisdiction

There was another big win for tribal court civil jurisdiction this week in Plains Commerce Bank v. Long Family Land and Cattle Co. The federal court upheld tribal court jurisdiction over a claim by a family farm owned and operated by a Cheyenne River Sioux Tribe family that their lending bank had committed an act of fraud and discriminated against them. Specifically, the bank promised to make loans to the farmers and then failed to make good on those promises. The tribal court, per Judge B.J. Jones of the UND Tribal Judicial Institute, found in favor of the plaintiffs on several of these charges following a two-day jury trial. The CRST appellate court upheld the trial verdict, over some very threatening comments made by defense counsel on appeal, criticized heavily by appeals court judge Frank Pommersheim. I've written about these comments in a recent paper as well.

Of course, the bank was located off reservation and alleged that Supreme Court cases like Nevada v. Hicks and Strate foreclosed tribal jurisdiction. But the bank only argued that the discrimination verdict was foreclosed by Hicks. The court was unpersuaded, in large part, because the bank had attempted to use the tribal court to foreclose against the Longs. The voluntary use of the tribal court in another aspect of the same case amounted to a consensual relationship as discussed in the Montana case. This was the same result reached in Smith v. Salish Kootenai College, a case in which the Supreme Court recently denied cert.

The Montana 1 exception -- consensual relationships -- should be exploited by tribes. More and more non-Indians come to Indian Country to do business and, as entities enjoying tribal services, they should consent to tribal jurisdiction.