Certiorari granted in important case on tribal jurisdiction

In a scary development for all of us who have been watching the Supreme Court, the Court has granted certiorari to review an Eighth Circuit decision upholding tribal court jurisdiction over a non-member bank. The facts would seem great for upholding jurisdiction: the bank entered into a loan with a family business with 51% tribal member ownership engaged in ranching on the Cheyenne River Sioux Reservation, and the case concerns alleged discrimination by the bank in the terms of the loan, which concerned the mortgage of land owned by the family business on the reservation. If any case would seem to come within the Montana’s regulation of commercial consensual relationships prong, this one would. In addition, the facts were developed in one of the best tribal appellate courts—that of the Cheyenne River Sioux Tribe, whose members include Robert Clinton and Frank Pommersheim—and the trial court record was developed under the supervision of Steven Gunn, who worked on the case with the clinic he founded at Wash U. There are a couple of potential tweaks in the case—the Long corporation was incorporated under South Dakota, not tribal, law, and jurisdiction was sought over a tort-like discrimination claim, rather than directly over a contract claim. The Court of Appeals had strong reasoning in rejecting both these arguments. First, the court found that although Long was incorporated under SD law, it had a “conspicuous tribal character,” and was organized to take advantage of BIA loan guarantees, something the bank knew of and profited from, and the bank entered into personal loan agreements with the two tribal members. Second, the court found that the tort claim for discrimination affecting the contract was appropriate under the consensual relationship exception, stating that “This case is about the power of the tribe to hold nonmembers to a minimum standard of fairness when they voluntarily deal with nonmembers.” The second issue is the one to be reviewed. The strength of the case for tribal jurisdiction might lead one to hope for success in the Court, but the Court’s dismal record on nonmember jurisdiction and the fact that there is not (as far as I know) a split on the circuits or any other decisions on this particular issue make this a very frightening development.

You can find David Selden's summary and links regarding the case for the National Indian Law Library via the below link:

http://www.narf.org/nill/bulletins/sct/2007-2008update.htm

Quick Empirical Study of Cert Grants & Denials

We all know that since Cabazon Band in 1987, as Alex Skibine wrote, tribal interests have lost 33 out of 44 cases (not including this Term's cases, if they could even be counted as Indian law cases). But the numbers get much worse if we add in cert. petition grants and denials.

US Law Week lists all the cert. petition grants and denials online dating back to the October 1996 Term. Here's my empirical research for the day. Remember, the chances that any petition for cert. will be granted (I believe) is about 2 percent, maybe a little less now.

Since the October 1996 Term, a party opposing tribal interests who loses at the lower court level but files a petition for certiorari with the Supreme Court has a 19.0% chance of having that petition granted (20 cases out of 105 total tribal wins). Once the case is granted cert., that party opposing tribal interests wins 85 percent of those cases (17 our of 20). Overall, a party that loses to a tribal party has a 16.2% chance of having that decision reversed by the Supreme Court (17 out of 105).

A party representing tribal interests that loses at the lower court level and files a cert. petition has a 4.1% chance that the Court will grant the petition (5 out of 121). Once that petition is granted 4 out of the 5 cases have been reversed, an 80% win rate for tribal interests. Overall, a tribal party has a 3.3% of convincing the Court to reverse the lower court's adverse judgments (4 out of 121).

These numbers include judgments that are vacated (counted as S. Ct. wins or losses), but condense the Kiowa Tribe's three sovereign immunity cases from 1998 into one. Also, intertribal conflicts are excluded.

Additional information from this study indicates that tribal interests have filed petitions seeking review of adverse judgments 121 times, while parties opposing tribal interests have filed 105 petitions. Does this mean tribes are losing that much more at the lower court level? More research needed and it's been a long day.