Reply Brief — Stops v. Little Horn State Bank

Supreme Court, U. &

FILED .

MAY 6 1977

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[MICHAEL RODAK ie, cue |

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

5 N No. 76-931

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ROBERT STOPS AND NORMA STOPS,

Petitioners,

V.

LITTLE HORN STATE BANK

On retition for a Writ of Certiorari to the

Supreme Court of the State of Montana

REPLY MEMORANDUM OF PETITIONERS

| THOMAS J. LYNAUGH

THOMAS K. SCHOPPERT

LYNAUGH & FITZGERALD

Suite 500, Midland National

Bank Building

303 North Broadway

Billings, Montana 59101

Counsel for Petitioners

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WILSON - EPES PRINTING Co.. INC. - RE 7-6002 - WASHINGTON, D.C. 20001

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-931

ROBERT STOPS AND NORMA STOPS,

Petitioners,

v.

LITTLE HORN STATE BANK

On Petition for a Writ of Certiorari to the

Supreme Court of the State of Montana

REPLY MEMORANDUM OF PETITIONERS

8 STATEMENT

Petitioners file this reply to the memorandum filed by

the United States. Petitioners believe the record is suffi-

cient for review and that the United States misapplies

the jurisdictional principles involved.

DISCUSSION

1. First, the Crow Tribal Court of Offenses is a court

established pursuant to federal laws and regulations pro-

mulgated thereunder. See 25 U.S.C. §§2 et seg., 25

C.F.R. Chap. 11. Next, at the time of the execution

involved here and pursuant to Crow Tribal Resolution

64-2 (App. le), the Crow Tribal Court entertained ac-

tions brought by non-Indian creditors and continues to

do so. Finally, if this Court concludes the record is not

sufficient to determine if a remedy was available in tribal

court, this matter should be remanded to the Montana

Supreme Court for further proceedings on this issue.

2. However, this Court has indicated that the first

judicial inquiry is whether Congress has excluded a state

from the exercise of the disputed jurisdiction. Kennerly

v. District Court, 400 U.S. 423 (1971), McClanahan v.

Arizona State Tax Commission, 411 U.S. 164 (1973),

Moe v. Confederated Salish and Kootenai Tribes, 425

U.S. 463 (1976). The first determination is whether

Congress preempted jurisdiction over judgment execu-

tions on the Crow Reservation and not, as the govern-

ment contends (Br. 3-4), whether such an exercise in-

fringes or undermines the authority of the Crow Tribal

Court.

Here Congress preempted the jurisdiction. At the time

of the execution in this case, jurisdiction was controlled

by the provisions of the Indian Civil Rights Act of 1968,

Section 402 (a), 82 Stat. 79, 25 U.S.C. S 1322 (a) & (b).

In addition to precluding state jurisdiction over “civil

causes of action arising in Indian country”, the Act re-

quires that the Tribe specifically consent to the imposi-

tion of any state civil laws having general application

over persons or private property. The Crow Tribe has not

so consented.

Yet, exercise by the state of its general regulatory

authority to execute is an exercise of that jurisdiction

specifically prohibited by Congress. In light of this, there

is no need to complicate the issue here with the issue of

personal jurisdiction or by waiting for a case that raises

both issues as the government suggests (Br. 5-6).

ee

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3

Montana case law on Indian-State jurisdiction is con-

flicting (Pet. 13). Even in face of continued direction

from this Court (Fisher v. District Court, 424 U.S. 382),

the Montana Supreme Court continues to erode the prin-

ciples of Indian jurisdiction and it now is impossible to

litigate these issues without additional clarification.

CONCLUSION

Therefore, for the reasons set forth in the petition and

this reply memorandum, the petition for a writ of cer-

tiorari should be granted. In addition, petitioner would

submit that on the basis of preemption, this Court can

summarly reverse the judgment of the Montana Supreme

Court without further argument.

Respectfully submitted,

THOMAS J. LYNAUGH

THOMAS K. SCHOPPERT

LYNAUGH & FITZGERALD

Suite 500, Midland National

Bank Building

* 303 North Broadway

Billings, Montana 59101

Counsel for Petitioners