Amicus Curiae Brief — Iowa Mutual Insurance v. LaPlante

Supreme Court, U.S. |

FILED

No. 85-1589

——trr «15 1989

In The | .

Supreme Court of the United ates p. Seatac

October ran 1985 =

aap ——.s

IOWA MUTUAL INSURANCE COMPANY,

Petitioner,

Vv.

EDWARD M. LaPLANTE, et al.,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE NAVAJO NATION TRIBE OF INDIANS,

CONFEDERATED SALISH AND KOOTENAI TRIBES OF THE

FLATHEAD RESERVATION, ARAPAHO TRIBE OF THE WIND

RIVER RESERVATION, SHOSHONE TRIBE OF THE WIND RIVER

RESERVATION, AND SHOSHONE-BANNOCK TRIBES OF THE

FORT HALL RESERVATION IN SUPPORT OF RESPONDENTS

ry

Vw

Yvonne T. Knight Claudeen Bates Arthur

Native American Rights Fund and Bruce R. Greene

1506 Broadway Navajo Nation Department

Boulder, CO 80302 of Justice

(303) 447-8760 P. O. Drawer 2010

Counsel! of Record for all Amici Window Rock, AZ 86515

Counsel for the Navajo Nation

Haroid A. Monteau Tribe of Indians

Tribal Legal Department

Confederated Salish and Dale T. White

Kootenai Tribes of the Fredericks and Pelcyger

Flathead Reservation The Canyon Center

Box 258 1881 9th Street, Suite 216

Pablo, MT 59855 Boulder, Co 80302

Counsel for the Confederated Counsel for the Arapho Tribe of

Salish and Kootenai Tribes the Wind River Reservation

of the Flathead Reservation

Howard Funke

W. Richard West, Jr. Ft. Hall Business Council

Fried, Frank, Harris, Shriver, P. O. Box 306

and Jacobson Ft. Hall, ID 83203

1001 Pennsylvania Ave., N.W. Counsel for the Shoshone-

Suite 800 Bannock Tribes of the

Washington, DC 20004-2505 Fort Hall Reservation

Counsel for the Shoshone Tribe

of the Wind River Reservation

Attorneys for Amici Curiae

COCKLE LAW BRIEF PRINTING CoO., (800) 225-6964

or call collect (402) 342-2831

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. ........ _ A RE iil

INTEREST OF AMICI CURIAB nesses 1

oe NG gS >) 2

ARGUMENT ................. oie ain ee RC RC ee 4

I. THE DIVERSITY STATUTE DOES NOT

GRANT JURISDICTION OVER ACTIONS

AGAINST INDIANS ARISING ON THE

iT iss ale llscepneldinarhdainanvnsicnate 4

A. Federal Diversity Jurisdiction Would In.

fringe Upon Tribal Rights of Self-Govern-

ment Guaranteed By Federal Law 2.00000... 4

B. The Congressional Intent To Interfere With

Tribal Jurisdiction Must Be Clear and Plain 5

(. The Requisite Clear And Plain Congressional

Intent Is Not Envinced By The Diversity

ERIS R ARR eae ssaiaidiaiants 7

D. Withholding Diversity Jurisdiction Over

Claims Subject To Tribal Jurisdiction Is

Consistent With Established Federal Indian

Il. DIVERSITY JURISDICTION OVER RESER-

VATION-BASED CLAIMS BARRED FROM

STATE COURT BY FEDERAL LAW. DE-

FEATS THE PURPOSES OF THE ERIE

DOCTRINE aneaciel

Hl. TOWA MUTUAL’S CONTENTION THAT

DIVERSITY JURISDICTION IS NOT CON-

TINGENT UPON APPLICATION OF THE

INFRINGEMENT DOCTRINE LACKS ANY

Sorrows 6 Cee eee W... BD

A. Both The Eighth And Ninth Cireuits Agree

That The Infringement Doctrine Applies To

Determine Diversity Jurisdiction 00000000... 15

13

IV.

il

TABLE OF CONTENTS — Continued

Page(s)

B. Application Of The Infringement Doctrine

Is Consistent With General Principles Gov-

erning bang Law To Be Piece In Diver-

sity Cases naslabent

THE EXHAUSTION RULE ANNOUNCED IN

NATIONAL FARMERS UNION INS. CO. V.

CROW TRIBE SHOULD BE APPLIED

WHERE APPROPRIATE IN DIVERSITY

CARESS wcnsineemenn

THE EXERCISE OF DIVERSITY JURIS-

DICTION MAY BE BARRED BY THE PRE-

EMPTION DOCTRINE, EVEN THOUGH

THE TRIBE DOES NOT EXERCISE JUR-

ISDICTION OVER THE CLAIM WU

CONCLUSION

19

21

23

28

ili

TABLE OF AUTHORITIES

CasEs

Page(s)

American Indian Agr. Credit v. Fredericks, 551 F.

Oe Picken 18

American Indian National Bank v. Red Owl, 478

F.Supp. 302 (D.S.D. 1979) ............ eR 17, 18

Banco Nacional De Cuba v. Sabbatino, 376 U.S.

Boyer v. Shoshone-Bannock Indian Tribes, 92

Tdaho 257 (1968) ce ie oe

Bryan v. Itasca County, 426 U.S. 373 (1976) oo 5

Elk v. Wilkins, 112 U.S. 94 (1884) 00 www... con 10

Enrique v. Superior Court, 115 Ariz. 342, 565 P.2d

eee 26

Erie R.R. v. Tompkins, 304 U.S. 64 (1938) 000. 14

Fisher v. District Court, 424 U.S. 382 (1976) . 4, 12, 18, 27

nee wo oes (ieee). 19

Hallowell v. United States, 221 U.S. 317 (1911) 200000...) «11

Hanna v. Plumer, 380 U.S. 460 (1965) 0 13

Hinderlider v. La Plata River Co., 304 U.S. 92

case ee 20

Hot Oil Service, Ine. v. Hall, 366 F.2d 295 (9th

| oe

Iron Crow v. Oglala Sioux Tribe, 251 F.2d 89

Kelly v. Kosuga, 358 U.S. 516 (1959) _.. rl | 19

Kennerly vy. District Court of Montana, 400 U.S.

Neen ees, OM, DO, DE

Littell v. Nakai, 344 F.2d 486 (9th Cir. 1965) 00000. 16

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Local 174, Teamsters, Chauffeurs, Warehousemen

& Helpers 6f Am. v. Lucas Flour Co., 361 U.S.

Be CIE. sccccinstindssesinctchcustameadeeanenapanmmmiéiaiieaaaaienapsad 20

Lone Wolf v. Hiteheock, 187 U.S. 5538 (1903) 6

Marchie Tiger v. Western Invest. Co., 221 U.S.

286 (1911) ................. sik bacsasatl eile heukiasmueeaeniemmeaammmetens 1]

Mattz v. Arnett, 412 U.S. 481 (1973) ......____.__........ 5

McClanalhian v. Arizona State Tax Comin’n., 411

U.S. 164 (1973) ..... Pie EY TR xia ae 4, 24, 25, 26

MeKnett v. St. Louis & San Francisco Railway

ae 2s & 2) Beet eee

Mondou vy. N.Y., N.H., & H.R. Co., 225 U.S. 1

SURI D: aeeisvnsnsriniisssinonsisesinlieacoehiiaelianuisliatvapiachanipuaniin as

Morton v. Maneari, 417 U.S. 535 (1974) oc 12

National Farmer’s Union Ins. Co. v. Crow Tribe,

471 U.8. —, 85 L.Ed.2d 818 (1965) ....................... 3, 20, 21, 22

Oneida Indian Nation v. County of Oneida, 414

Oe GE. CID ecisninctenlicennenaanbaes 20

Oneida v. Oneida Indian Nation, 470 U.S. —-, 84

Re OO PEND inicciccrcceapucesasceancaonpaamatneainataian 20

Paul v. Chilsoquie, 70 F. 401 (C.C.D. Ind. 1895) 20. 10

Poitra v. DeMarrias, 502 F.2d 23 (Sth Cir. 1974) —..18, 15,

16, 17,18

Prima Paint Corporation v. Flood & Conklin Mfg.

CS a. See CD cctinerteaeen 19

R.J. Williams Co. v. Fort Belknap Housing Au-

thority, 719 F.2d 979 (9th Cir. 1983) .......15, 16, 18, 23, 26

Santa Clara Pueblo v. Martinez, 436 U.S. 49

if scnieascaeiernenindieiceotoonanccaeseelammmniian: iar 5, 6, 12

Sola Electrie Co. v. Jefferson, 317 U.S. 173 (1942) ..... 19

TABLE OF AUTHORITIES—Continued

Page(s)

Superior Oil Co. v. Merritt, 619 F.Supp. 526 (D.C.

SE SIPOIE rtihasnataniccniatieaadiandkacdnmiaae ena aaa 4

Testa v. Katt, 330 U.S. 386 (1947) oo cccccccsssssesusseseeseree 21

Three Affiliated Tribes of the Fort Berthold

Reservation v. Wold Engineering, 467 U.S. 138

(1984) lalaaiaanamniasaiseamuabonaah 17, 24, 27

Three Affiliated Tribes v. Wold Engineering. 476

Us. —~ Lea ee (ee) 17, 24

United States v. Celestine, 215 U.S. 278 (1909) 1]

United States v. Dion, 476 U.S. —, 90 L.Ed.2d

ST EMITIUED css cestashtiucaiah hcameasaacieagadeamamionenmananemenids alee came 5)

United States v. Holliday, 3 U.S. (Wall) 407 (1866) .7,11

United States v. Kagama, 118 U.S. 375 (1886) 0... 9

United States v. Nice. 241 U.S. 591 (1916) 10

United States v. Quiver, 241 U.S. 602 (1916) 20000. 12

United States v. Sandoval, 231 U.S. 28 (1913) 0000... 1]

United States v. Santa Fe Pacifie R. Co., 314 U.S.

| ee tt en Neg eR amine A 5, 20

Vermillion v. ras Elk, 85 N.W.2d 432 (N.D.

1957) .. React M tn OM Mae ee

Weeks aa Inc. v. Oglala Sioux Housing

Authority, Nos. 85-5129 and 85-5130 (8th Cir.

UN aIEE I hernia ee ne Seanad 18

Williams v. Lee, 358 U.S. 219 (1959) ...3, 4, 15, 16, 18, 24, 28

Winton v. Amos, 255 U.S. 373 (1921) woe = 17

Woods vy. Interstate Realty, 337 U.S. 535 (1949) . 13

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) .. 8

Yiatchos v. Yiatchos, 376 U.S. 306 (1964) cone ae

vi

TABLE OF AUTHORITIES—Continued

Page(s)

CONSTITUTION

U.S. Const., Art. I, § 8, el. 3 (Commerce Clause) ............. 8

U.S. Const., Art. VI, cl. 2 (Supremacy Clause) ............... 19

STaTUuTEs

Act of 1789, ch. 20 611, 1 Stat. 73 (Judiciary Act).....7,8,9

Act of 1887, ch. 119, 46, 24 Stat. 388, 25 U.S.C.

Si IIE SUID sis: eceseniticieineheiniebeeanenenieiaeaaiainiahglipaaiioien 9

Act of Angust 9, 1888, ch. 818, § 2, 25 Stat. 392,

BO SNe a I vicedechentasceeaececrnesemisicsabcommonectennendion Set a 10

Act of 1906, ch. 2348, § 6, 34 Stat. 182, 25 U.S.C. § 349 10

Act of November 6, 1919, ch. 95, 41 Stat. 350 2000000.. 10

Act of June 2, 1924, ch. 233, 43 Stat. 253 .000000000..10, 11

Act of April 20, 1940, ch. 117, 54 Stat. 143 2. 8

Act of June 25, 1948, ch. 646, 62 Stat. 869 00. Fae,

Act of July 26, 1956, ch. 740, 70 Stat. 658 0 8

Act of July 25, 1958, Pub.L. 85-554, § 2, 72 Stat. 415. = 8

Act of August 14, 1964, Pub.L. 88-439, § 1, 78 Stat. 445 &

Act of 1968, 25 U.S.C. § 1302 (Indian Civil Rights Act) 5

Act of October 21, 1976, Pub.L. 94-583, § 3, 90

aN il a 8

Diversity, Statute, 28 U.S.C. § 1332 2 eee 7

Pub.L. 280, 25 U.S.C. $§ 1320-26 ce ccesesss 16, 25

Rules of Decision Act, 28 U.S.C. § 1652 20000. sau, 19

vil

TABLE OF AUTHORITIES—Continued

Page(s)

MISCELLANEOUS

F’. Cohen, Handbook of Federal Indian Law (1982) 9, 14, 26

Confederated Salish and Kootenai Law and Order

rn I i cacti ]

Law and Order Code of the Shoshone-Bannock

es, Oe ne CN BE eset ieieickenencoschen 1

Moore’s Federal Practice © 707.1 (2d ed. 1981) 000. = oT

[LA Moore’s Federal Practice (Part 2), 90.324 (1985) 19

7 Navajo Tribal Code § 253(2) and (4) 20 T

7 Williston on Contracts § 914 (1963) oo 27

INTEREST OF AMICI CURIAE

Amici, Navajo Nation Tribe of Indians, Confederated

Salish and Kootenai Tribes of the Flathead Indian Reserva-

tion, Arapaho Tribe of the Wind River Reservation, Sho-

shone Tribe of the the Wind River Indian Reservation, and

Shoshone-Bannock Tribes of the Fort Hall Reservation are

all federally recognized Indian tribes with well-established

legal systems, including tribal courts, operating within their

respective reservations. Amici all assert civil jurisdiction

over claims arising within their respective reservations,

including claims by or against non-members. See, 7 Navajo

Tribal Code § 253(2) and (4); Law and Order Code of the

Shoshone-Bannock Tribes §§ 2(b) and 2.1; Confederated

Salish and Kootenai Law and Order Code, Chapter II, § 1;

25 CER § 11.22 establishing Civil jurisdiction of the Courts

of Indian Offenses serving the Wind River Indian Reser-

vation (jurisdiction asserted over non-member defendants

by consent of parties).

Resolution of the question presented in this case will

have broad impact. This case will define the jurisdictional

relationship between federal courts in diversity cases and

tribal courts concerning claims within tribal jurisdiction

under federal treaties and statutes. Specifically, it will

determine whether the diversity statute empowers federal

eourts to intrude upon the jurisdiction of tribal courts in

instances in which state jurisdiction would be barred by

judicially fashioned doctrines implementing treaties and

statutes protecting tribal self-government. Amici have a

substantial interest in protecting their rights to be self-

governing from diminishment through the intrusion of

outside governments, whether state or federal. Hence,

2

amici submit this brief in support of respondents’ position

and urge this Court to construe the diversity statute in ae-

cordance with longstanding federal policies protective of

tribal self-government.

SUMMARY OF ARGUMENT

1. The plain language of the diversity statute, the

legislative history and surrounding cireumstanees do not

reveal the requisite clear and plain congressional intent

to empower federal courts to intrude upon the jurisdiction

of tribal courts guaranteed by federal treaties and statutes.

The econferral of federal and state citizenship upon Inidans

does not envince a contrary congressional intent.

2. Construing the diversity statute to provide a fed-

eral forum for claims otherwise within the exelusive juris-

diction of Indian tribes defeats the policies of the Erie

Doctrine. Similar claims would be subject to different

results depending upon whether the claimant were an in-

state resident filing in tribal court or an out-of-state resi-

dent filing in federal court. Moreover, such a construction

enables out-of-state claimants to forum-shop between tribal

and federal forums.

3. Both the Ninth Cireuit and the Eighth Circuit

agree that federal diversity jurisdiction over claims sub-

ject to tribal jurisdiction is barred in any instance in which

the exercise of such jurisdiction would infringe upon tribal

self-government. The alleged conflict between these two

cireuits as to this rule is illusory as confirmed by a recent

decision of the Eighth Cireuit issued after this Court

granted certiorari in this case.

Moreover, well-established principles governing the

substantive rule of decision in diversity cases require that

federal law be applied to determine federal questions. The

extent of federal and tribal jurisdiction are matters gov-

erned by federal law. Thus, when questions as to these

matters are raised in a diversity case, the federal court

must apply applicable federal law, including the infringe-

ment doctrine announced in Williams v. Lee, 358 U.S, 219

(1959) and the federal preemption doctrine.

4. In National Farmers Ins. Co. v. Crow Tribe, 471

U.S. —. 85 L.Ed.2d 818 (1985), this Court announced the

rule that exhaustion of tribal remedies is required before

federal courts will address federal questions concerning

the nature and extent of tribal jurisdiction. Although that

ease was based upon federal question jurisdiction, the rule

should also apply when such federal questions are raised

in diversity eases.

Assuming that this Court rules that federal diversity

jurisdiction is limited by the infringement doctrine, Lowa

Mutual concedes that, under that doctrine, Montana courts

would have no jurisdiction over the claim raised herein.

There being no question raised as to the Blackfeet Tribe's

jurisdiction over the claim, the federal court should simply

dismiss this ease for lack of jurisdiction.

5. The Ninth Cireuit’s opinion in this ease in dictum

adopts a rule that wonld provide a federal forum under

diversity jurisdiction over any claim within a tribe’s juris-

diction, but for which the tribe does not provide a forum.

The rule is grounded upon the notion that where there is

no tribal forum, a federal forum would not infringe upon

tribal self-government. However, this rule is unsound

4

because it fails to recognize that under the federal pre-

emption doctrine, where federal treaties and statutes re-

serve exclusive jurisdiction in a tribe, state and federal

jurisdiction are precluded, notwithstanding that a tribe

has not provided a forum for all claims that may arise

within its jurisdiction. Amici submit that, should this

Court affirm the Ninth Cireuit’s decision, the affirming

opinion should expressly indicate disapproval of the afore-

discussed rule.

fay

Vv

ARGUMENT

I. THE DIVERSITY STATUTE DOES NOT GRANT

JURISDICTION OVER ACTIONS AGAINST IN-

DIANS ARISING ON THE RESERVATION

A. Federal Diversity Jurisdiction Would Infringe

Upon Tribal Rights of Self-Government Guar-

anteed By Federal Law

Petitioner lowa Mutual Insurance Company (herein-

after ‘‘lowa Mutual’’) concedes that Montana courts have

no jurisdiction over its claim beeause such jurisdiction

would infringe upon tribal self-government. See, Peti-

tioners Brief at 5 and 7. And indeed, it is well settled

that tribal Indians have a federal right to make their own

laws and be governed by them. See, e.g., Williams v. Lee,

358 U.S, 217, 223 (1959); WeClanahan v. Arizona State Tax

Comm’n., 411 U.S. 164 (1978). Accordingly, tribal courts

have exclusive jurisdiction over civil actions arising on the

reservation where the defendant is a tribal member. See,

e.g., Williams v. Lee, 358 U.S. at 233; Nennerly v. District

Court of Montana, 400 U.S. 425, 427-30 (1971); Fisher v.

District Court 424 U.S. 382, 389 (1976). The diversity

statute would conflict with tribal jurisdiction by providing

a federal forum for such actions.

)

This Court has previously recognized that construing

a federal statute to provide a federal forum for issues

otherwise within tribal jurisdiction

‘*constitutes an interference with tribal autonomy and

self-government. ... Even in matters involving com-

mercial and domestic relations, we have recognized

that ‘‘subject[ing| a dispute arising on the reserva-

tion among reservation Indians to a forum other than

the one they have established for themselves’’ [cita-

tion omitted] may ‘‘undermine the authority of the

tribal cour/t] ... and hence ... infringe on the

right of Indians to govern themselves.” [citation

omitted |

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59-60 (1977).

In Santa Clara Pueblo, this Court declined to construe the

Indian Civil Rights Act of 1968, 25 U.S.C. § 1302, to provide

a federal forum for the resolution of issues arising under

that Act.

B. The Congressional Intent To Interfere With Tribal

Jurisdiction Must Be Clear and Plain

A determination of whether the diversity statute, as

a general federal statute, applies to permit federal courts

to intrude upon the jurisdiction of tribal courts turns on

the intent of Congress. Bryan v. Itasca County, 426 U.S.

373, 393 (1976), citing Matte v. Arnett, 412 U.S. 481, 504-505

(1973), United States v. Dion, 476 U.S. —, 90 L.Ed.2d 767

(1986). A congressional intent to abrogate federal rights

cranted to Indians must be “clear and plain.” United States

v. Dion, 90 L.Ed.2d at 773; United States v. Santa Fe Pa-

cific R. Co., 314 U.S. 339, 353 (1941). The standard for

determining the “clear and plain” intent of Congress has

varied. As explained in United States v. Dion, 90 L.Ed.2d

at 774:

We have enunciated ... different standards over

the years for determining how such a clear and plain

intent must be demonstrated. In some eases, we have

required that Congress make ‘‘express declaration’’

of its intent to abrogate treaty rights. [Citations

omitted.| In other cases, we have looked to the sta-

tute’s “‘legislative history’” and “ ‘surrounding cir-

cumstances’ ’’ as well as to ‘‘ ‘the face of the Act.’ ”’

[Citations omitted.] Explicit statement by Congress

is preferable for the purpose of ensuring legisiative

accountability for the abrogation of treaty rights.

[Citation omitted.] We have not rigidly interpreted

that preference, however, as a per se rule; where the

evidence of congressional intent to abrogate is suf-

ficiently compelling, ‘‘the weight of authority indicates

that such an intent can also be found by a reviewing

court from clear and reliable evidence in the legislative

history of a statute.’’ [Citation omitted.] What is

essential is clear evidence that Congress actually con-

sidered the conflict between its intended action on the

one hand and Indian treaty rights on the other, and

chose to resolve that conflict by abrogating the treaty.

Moreover, the requirement that the congressional in-

tent to authorize an intrusion upon tribal sovereignty be

clear and plain is especially compelling when it is con-

tended that federa! courts are empowered to intrude upon

the jurisdiction of tribal courts. This Court emphasized in

Santa Clara Pueblo v. Martinez, that a construction of the

Indian Civil Rights Act not to provide a federal forum was

consistent with the longstanding recognition that judicial

restraint is particularly appropriate in the area of Indian

affairs, and that the federal courts will require Congress

to make clear any ‘‘intention to permit the ... intrusion

on tribal sovereignty that adjudication of ... actions [with-

in tribal court jurisdiction] in a federal forum would

represent... .” 436 U.S. at 72; see also, Lone- Wolf v.

Hitchcock, 187 U.S. 553, 565 (1903); United States v. Hol-

liday, 3 U.S. (Wall) 407, 418-420 (1866).

C. The Requisite Clear And Plain Congressional In-

tent Is Not Envinced By The Diversity Statute’s

History

The history of the diversity statute falls far short of

manifesting the requisite clear and plain congressional

intent to vest federal courts with diversity jurisdiction to

adjudicate the merits of reservation-based claims against

tribal members.

The diversity statute, 28 U.S.C. § 1332, was originally

enacted as section 11 of the Judiciary Act of 1789. See,

Judiciary Act, ch. 20 §11, 1 Stat. 73, 78-79 (1789).! The

historical purpose of the diversity statute was to permit

civil actions between “citizens of different states” to be

brought in a neutral federal forum. To be a eitizen of a

state within the meaning of the diversity statute, a person

must be both a citizen of the United States and a domi-

ciliary of a state. This was the rule before and after the

adoption of the Fourteenth Amendment. See 1 J. Moore,

W. Taggert & J. Wicker, Moore’s Federal Practice § 707.1

(2d ed. 1981).

The diversity statute on its face as originally enacted

and as presently constituted, makes “no mention of In-

'The original act states that “the circuit courts shall have

Original cognizance, concurrent with the courts of the several

states, of all suits of a civil nature at common law in equity,

where the matter in dispute exceeds, exclusive of costs, the sum

or vaiue of five hundred dollars . . . and the suit is between a

citizen of the state where the suit is brought, and a citizen of

another state.” 1 Stat. 73 at 78.

dians and it is unlikely that Congress had the future status

of Indian tribes in mind when it passed the statute.”’

Superior Oil Co. v. Merritt, 619 F.Supp. 526, 533 (D.C.

Utah 1985).2 Thus, there is no ‘‘express declaration’’ by

Congress in the diversity statute authorizing federal

courts to assume diversity jurisdiction over claims subject

to the exclusive jurisdiction of Indian tribes.

Moreover, the circumstances surrounding the passage

of the diversity statute show that when the statute was

passed, tribes and their members were viewed as a people

separate and distinct from states both politically and terri-

torially.

The United States Constitution was ratified in 1787,

two years prior to the Judiciary Act. The Constitution

contains the Commerce Clause which gives Congress ex-

clusive federal authority in the area of Indian affairs.

U.S.Const. Art. I, § 8, el. 3. The Commerce Clause empow-

ers Congress to ‘‘regulate Commerce with foreign Nations.

and among the several States and with the Indian Tribes.’’

This clause clearly reflects the prevailing view that tribes

were considered as separate entities from states.

This view of the separateness of Indian tribes is also

reflected in two early landmark decisions of this Court.

In Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), this

2Also the Amendments make no mention of Indians, tribes

or Indian reservations. See, Act of April 20, 1940, ch. 117, 54

Stat. 143; Act of June 25, 1948, ch. 646, 62 Stat. 869; Act of July

26, 1956, ch. 740, 70 Stat. 658; Act of July 25, 1958, Pub.L. 85-

554, § 2, 72 Stat. 415; Act of August 14, 1964, Pub.L. 88-439, § 1,

78 Stat. 445; Act of October 21, 1976, Pub.i. 94-583, § 3, 90 Stat.

2891.

9

Court held that Georgia’s laws do not apply within the

Cherokee reservation:

From the commencement of our government, Congress

has passed acts to regulate trade and intercourse with

Indians; which treat them as nations, respect their

rights, and manifest a firm purpose to afford that

protection which treaties stipulate. All these acts, and

especially that of 1802, which is still in force, mani-

festly consider the several Indian nations as distinct

political communities, having territorial boundaries,

within which their authority is exclusive. ...

Td, at 556-557.

In addition, in United States v. Kagama, 118 U.S. 375

(1886), this court held that tribes

were, and always have been, regarded as having a

semi-independent position when they preserved their

tribal relations; not as States, not as Nations, not as

possessed of the full attributes of sovereignty, but as

a separate people with the power of regulating their

internal and social relations. and thus far not brought

under the laws of the Union or of the State within

whose limits they resided.

Id. at 381-382.

Indeed, at the time the Judiciary Act was passed in

1789, Indians were not citizens of the United States unless

they were naturalized individually or collectively by fed-

eral statute or treaty In 1884, shortly after the passage

3See, generally, F. Cohen, Handbook of Federal Indian Law

142-143 (1982). A few tribes were granted citizenship by spe-

cial statute. The Dawes Act of 1887, ch. 119, § 6, 24 Stat. 388,

390, 25 U.S.C. § 349, aiso granted citizenship to allottees under

(Continued on following page)

10

of the Fourteenth Amendment, this Court held that Indians

were not made citizens of the United States by the Four-

teenth Amendment because they were not subject to the

jurisdiction of the United States. Elk v. Wilkins, 112 U.S.

94 (1884). Thus, it was early held that, since tribal In-

dians were not citizens within the meaning of the Four-

teenth Amendment, they could not invoke the diversity

jurisdiction of the federal courts. Paul v. Chilsoquie, 70

F, 401, 402 (C.C.D. Ind. 1895).

Indians who were not yet United States citizens were

made citizens by the Act of June 2, 1924, ch. 233, 43 Stat.

253, which provides that

all non-citizen Indians born within the territorial lim-

its of the United States be, and they are hereby, de-

clared to be citizens of the United States; Provided,

That the granting of such citizenship shall not in any

manner impair or otherwise affect the right of any

Indian to tribal or other property.

Significantly, however, Congress enacted the 1924 Act

against a backdrop of Supreme Court decisions that con-

clusively established that the conferral of citizenship per se

did not abrogate tribal sovereignty or the plenary power of

Congress over Indians. In United States v. Nice, 241 U.S.

591 (1916), the Court upheld a statute prohibiting sale of

liquor to Indians on a reservation and rejected inter alia

(Continued from previous page)

that Act. This was amended by the Burke Act of 1906, ch. 2348,

§ 6, 34 Stat. 182, 25 U.S.C. § 349, which granted citizenship only

to those Indians who received a patent in fee. The Act of Au-

gust 9, 1888, ch. 818, § 2, 25 Stat. 392, 25 U.S.C. § 182, granted

citizenship to Indian women who married white men. The Act

ot November 6, 1919, ch. 95, 41 Stat. 350, granted citizenship

to Indians who served in the armed forces during World War |.

11

the argument that the grant of citizenship to Indians who

took allotments under the General Allotment Act was in-

compatible with tribal existence and federal guardianship.

The Court said:

Citizenship is not incompatible with tribal existence

or continued guardianship, and so may be conferred

without completely emancipating the Indians, or plac-

ing them beyond the reach of congressional regula-

tions adopted for their protection.

Id. at 598. Accord; United States v. Holliday, 3 U.S.

(Wall) 407, 418-420 (1866); United States v. Celestine, 215

U.S. 278, 288-291 (1909); Hallowell v. United States, 221

U.S. 317, 322-325 (1911); Marchie Tiger v. Western Invest.

Co., 221 U.S. 286, 310-316 (1911); United States v. San-

doval, 231 U.S. 28, 48 (1913); Winton v. Amos, 255 U.S.

373, 391-392 (1921).

Thus if Congress had intended to disturb the pre-ex-

isting rights of tribal Indians or the federal! relationship

with tribes. it would undoubtedly have said so expressly

in the 1924 Act since the mere conferral of citizenship

would not have had that effect.

Accordingly, in Iron Crow v. Oglala Sioux Tribe, 231

F.2d 89, 98 (Sth Cir. 1956), the court held:

That Congress did not intend by the granting of citi-

zenshi} to all Indians born in the United States to

terminate the Indian Tribal Court system is patent

from the fact that at the same session of Congress and

at sessions continuouly [sic] subsequent thereto funds

have been appropriated for the maintenance of the

Indian Tribal Courts. We hold that the granting of

citizenship in itself did not destroy tribal existence

or the existence or jurisdiction of the Indian Tribal

courts and that there was no intention on the part of

Congress so to do.

12

Accord, Boyer v. Shoshone-Bannock Indian Tribes, 92

Idaho 257, 260 (1968) (‘‘[T]he fact that all indians are

now citizens does not affect the jurisdiction of tribal

courts.’’)

In summary, the evidence is far from clear that Con-

gress in enacting the diversity statutes intended to au-

thorize federal courts to intrude upon the jurisdiction of

tribal courts exercised under the protection of federal

treaties and statutes. Hence, this Court should find that

the diversity statutes does not grant federal jurisdiction

over claims against Indians arising within an Indian res-

ervation.

D. Withholding Diversity Jurisdiction Over Claims

Subject To Tribal Jurisdiction Is Consistent With

Established Federal Indian Policies

Furthermore, construction of the diversity statute to

preclude federal jurisdiction over claims against Indians

arising on the reservation is consistent with the well estab-

lished “federal policy of furthering Indian self-govern-

ment.” Santa Clara Pueblo v. Martinez, 436 U.S. at 62;

quoting Morton v. Mancart, 417 U.S. 535, 551 (1974) ; and

see, Fisher v. District Court, 424 U.S. 382, 391 (1976).

This Court has said that general federal statutes must be

eonstrued ‘‘in accord with the policy reflected by the

legislation of Congress and its administration for many

years. .. .’’ United States v. Quiver, 241 U.S. 602, 606

(1916) (holding that federal penal code applicable to fed-

eral enclaves does not apply to Indian reservations).

13

Ii. DIVERSITY JURISDICTION OVER RESERVA-

TION-BASED CLAIMS BARRED FROM STATE

COURT BY FEDERAL LAW DEFEATS THE PUR-

POSES OF THE ERIE DOCTRINE

Towa Mutual argties that the policies underlying the

Erie Doctrine are not abridged by the exercise of federal

diversity jurisdiction over reservation-based claims against

Indians barred from state court by the infringement and

preemption doctrines. See, Petitioner's Brief at 5-7; and

Petition for a Writ of Certiorart, at 9. The purposes of the

Erie Doctrine are to avoid the inequitable administration

of laws and to discourage forum shopping. Jlanna v.

Plumer, 380 U.S. 460, 468 (1965). Contrary to lowa Mu-

tual’s contention, those policies would be deteated by ap-

proving the exercise of diversity jurisdiction over claims

barred from state court.

First, the exercise of diversity jurisdiction over

reservation-based claims barred from state courts rein-

states the problem of inequitable administration of the

iaws. Claims of in-state claimants would be restricted to

a tribal forum applying tribal law while similar claims of

out-of-state claimants could be brought in a federal for-

um applying state law.4 Thus there is a strong possibility

that the same claim: would be subject to different results

depending upon whether the claimant were an in-state or

out-of-state resident. As stated in Woods v. Interstate

Realty, 3387 U.S. 535, 538 (1949) :

‘lowa Mutual states that Poitra v. DeMarrias, 502 F.2d 23

(8th Cir. 1974) sets forth “the correct view of the question pre-

sented in this case.” See, Petition for Writ of Certiorari at 9.

Since the Poitra court applied state law in determining the

claim raised in that case. it may be assumed that lowa Mutual

takes the position that state law provides the rule of decision

in diversity cases.

14

[Where in [diversity] eases one is barred from

recovery in the state court, he should likewise be

barred in the federal court. The contrary result would

create discriminations against citizens of the State

in favor of those authorized to invoke the diversity

jurisdiction of the federal courts. It was that element

of discrimination that Erie R. Co. v. Tompkins was ce-

signed to eliminate.

Second, the exereise of diversity jurisdiction over

reservation-based claims barred from state courts would

allow an out-of-state claimant the choice of bringing an

action in federal court where state law would be applied

and bringing an action in tribal court where tribal law

would be applied. Such a situation plainly reinstitutes the

problem of forum shopping which the Erie Doctrine was

intended to discourage, even though the forums involved

are federal and tribal, rather than federal and state.

Clearly, petitioner’s contention that federal diversity

jurisdiction over the claim in this case is consistent with

the policies underlying the Erie Doctrine cannot stand.

If, on the other hand, petitioner is arguing that tribal law

would provide the rule of decision in an appropriate case, such

as the instant case where the tribal court has exclusive juris-

diction, that contention raises its own set of problems. The prin-

cipal difficulty inherent in this contention is summarized in

F. Cohen Handbook of Federal Indian Law, supra at 317-318

n.291: i

Applying tribal law, as a tribal court would, is unprecedented

and clashes with the Rules of Decision Act, 28 U.S.C. § 1652,

as interpreted in Erie R.R. v. Tompkins, 304 U.S. 64 (1938).

15

Ili. IOWA MUTUAL’S CONTENTION THAT DIVER-

SITY JURISDICTION IS NOT CONTINGENT UP-

ON APPLICATION OF THE INFRINGEMENT

DOCTRINE LACKS ANY SUPPORT IN CASELAW.

Iowa Mutual contends that this Court should hold

that federal courts in diversity cases may exercise juris-

diction over reservatign-based claims against Indians

notwithstanding that the exercise of such jurisdiction by

state courts would be barred by application of the in-

fringement doctrine announced in Waoliams v. Lee, 358

U.S. 217 (1959). Iowa Mutual also contends that there is

a conflict between the Eighth and Ninth Circuits as to the

correctness of its position. In this part of the brief, amici

will demonstrate that Iowa Mutual’s position lacks sup-

port in both the Eighth and Ninth Cireuits, and that ap-

plication of the infringement doctrine to determine diver-

sity jurisdiction over claims against Indians arising on a

reservation is consistent with general principles govern-

ing what law applies in diversity cases.

A. Both The Eighth And Ninth Circuits Agree That

The Infringement Doctrine Applies To Determine

Diversity Jurisdiction

Iowa Mutual asserts that there is a conflict between

the Ninth Cireuit’s decision in R. J. Williams Co. v. Fort

Belknap Housing Authority, 719 F.2d 979 (9th Cir. 1983),

on which this case relies, and the Eighth Cireuit’s decision

in Pottra v. DeMarrias, 502 F.2d 23 (8th Cir. 1974). Amici,

however, agree with the respondent LaPlante, that the

alleged conflict is illusory. A careful examination of the

Poitra decision reveals that the Eighth Cireuit, like the

Ninth Cirenit, adopts the rule that a federal court in

diversity cases may exercise jurisdiction over reservation-

16

based claims against tribal members unless such action

would interfere with tribal self-government. Poitra, 502

F.2d at 28-29; R. J. Williams, 719 F.2d at 983-984.

The Poitra court expressly approved the Ninth Cir-

euit’s decisions in Hot Oil Service, Inc. v. Hall, 366 F.2d

295 (9th Cir. 1966) ; and Littell v. Nakai, 344 F.2d 486 (9th

Cir. 1965). In each of those cases, the Ninth Cireuit held

that it had no diversity jurisdiction over a reservation-

based claim against an Indian because the exercise of such

jurisdiction would interfere with tribal self-government.

Poitra, 502 F.2d at 28-29. The Poitru court, however, dis-

tinguished those cases, inter alia, on the ground that the

claims involved tribal lands and a contract with the tribal

government, whereas Poitra involved private litigants and

a private dispute. Poitra, 502 F.2d at 29. Plainly, the

Poitra court applied the infringement doctrine to deter-

mine whether it had diversity jurisdiction over the claim.

However, confusion resulted from the Poitra decision

because the Eighth Circuit based the decision on two ap-

parently inconsistent findings. First, the Eighth Cireuit

found that, on the facts of Poitra, diversity jurisdiction

would not infringe on tribal self-government. And second,

the Court found that North Dakota’s door-closing statute

implemented a federal statute—Pub.L. 280, 25 U.S.C.

) 1322(a), and hence, was not a state law or poliey which the

Erie Doctrine requires federal courts sitting in diversity

to follow. The Court, however, failed to explain in express

terms why it was bound to apply the federal intringement

doctrine announced by this Court in Williams v. Lee, 358

17

U.S. 217 (1959),° but not the terms of a federal statute,

Pub. L. 280.

The failure of Pvitra Court to explain this apparent

inconsistency, coupled with the lack of specifie language in

the opinion expressly finding that federal diversity juris-

diction is contingent upon a finding of non-infringement of

tribal self-goverment, resulted in an erroneous decision by

the federal district court in American Indian National

Bank v. Red Owl, 478 F.Supp. 302 (D.S.D. 1979). The Red

Owl court, construed Poitra to mean that a federal court

in diversity cases is not obligated to apply the federal in-

fringement dectrine because it is not a state policy.

Petitioner Iowa Mutual now relies upon the Red Owl

court’s erroneous interpretation of Poitra for its conten-

tion that there is a conflict between the Eighth and Ninth

Cireuits as to whether the infringement doctrine applies in

determining whether diversity jurisdiction may be exer-

cised in this case.

Any doubt as to the Eighth Cireuit’s view of the appli-

eability of the infringement doctrine to determine the pro-

priety of diversity jurisdiction was laid to rest by that

61t may be inferred that the Poitra Court erroneously viewed

P.L. 280 as offering an option to North Dakota to disclaim juris-

diction over the claims in question. That view is consistent with

the then erroneous view of North Dakota courts that the state

had preexisting jurisdiction over such claims. See, Vermillion v.

Spotted. Elk, 85 N.W.2d 432 (N.D. 1957). The Vermillion deci-

sion was determined to be wrong in two recent cases in this

Court. See, Three Affiliated Tribes v. Wold Engineering, 467

U.S. 138, 148 (1984); Three Affiliated Tribes v. Wold Engineering,

476 U.S. —, 90 L.Ed.2d 881, 887 (1986). Hence, North Dakota’s

legislative action pursuant to the P.L. 280 offer implemented

what the Poitra court viewed as an optional federal policy. In

contrast, the infringement doctrine is not optional.

18

Court’s recent decision in Weeks Construction, Inc. v.

Oglala Sioux Housing Authority, Nos. 85-5129 and 85-5130

(8th Cir. July 29, 1986). In Weeks, the Eighth Circuit con-

firmed its view that the infringement doctrine applies in

determining its diversity jurisdiction over reservation-

based claims by non-Indians against Indians. See, Weeks,

slip op. at 9-10.7

Thus, lowa Mutual’s arguments that the infringement

doctrine announced in !Villiams v. Lee should not be applied

by federal courts in determining whether to exercise diver-

sity jurisdiction over reservation-based claims against In-

dians finds no support in the decisions of the Eighth Cir-

cuit. The only support for that argument is the miseon-

struction of Pottra in the Red Owl case.’

The Cc avoided the question of whether Poitra was

wrong in determining that diversity jurisdiction may be exer-

cised over a claim between tribal members arising on the res-

ervation. The Court suggested that the unique facts of that case

would support a finding of non-infringement. See, Weeks, slip

op. at 10 n.7. Amici submit that Poitra was wrong by applica-

tion of the preemption doctrine. Tribes have exclusive juris-

diction over such claims between tribal members under federal!

treaties and statutes. See, e.g., Fisher v. District Court, 424 U.S.

382 (1976). And see the discussion in part V of this Brief, infra.

®Any argument that the infringement doctrine does not pre-

clude diversity jurisdiction over reservation-based private dis-

putes between non-Indians and Indians is plainly unsound. See,

Williams v. Lee, 358 U.S. 217 (1959); R. J. Williams, 719 F.2d 979

(9th Cir. 1983); Weeks, Nos. 85-5129 and 85-5130 (8th Cir. July

29, 1986). However, at least one district court relying on the

Poitra decision has erroneously held that diversity jurisdiction

over such claims does not infringe on tribal self-government.

American Indian Agr. Credit v. Fredericks, 551 F.Supp. 1020,

1021-1022 (D. Colo. 1982).

19

B. Application Of The Infringement Doctrine Is Con-

sistent With General Principles Governing The

Law To Be Applied In Diversity Cases

lowa Mutual’s contention that a ‘‘ judicially announced

policy,’’ i.e. the infringement doctrine, cannot bar diversity

jurisdiction over reservation-based claims against Indians,

see, Petitioner’s Brief at 6, finds no support in general

principles delineating the law to be applied in diversity

Cases.

The Rules of Decision Act, 28 U.S.C. § 1652, requires

that state substantive law be regarded as the rule of de-

cision in federal courts in diversity cases ‘‘except where

the Constitution or treaties of the Uited States or Acts

of Congress otherwise require or provide... .’’ ‘This

Court has construed this Act to mean that federal law pro-

vides the substantive rule of decision in diversity cases

‘‘with respect to subject matter over which Congress

plainly has power to legislate.’* Prima Paint Corporation

v. Flood & Conklin Mfg. Co., 388 U.S. 395, 405 (1967) ;

Kelly v. Kosuga, 358 U.S. 516, 519 (1959); and see, gener-

ally, [A Moore’s Federal Practice (Part 2), { 0.324 (1985).

It is thus well-established that the application of federal

law in diversity cases is consistent with the Hrie Doctrine

where the subject matter is federal in nature. See, e./..

Sola Electric Co. v. Jefferson Elec. Co., 317 U.S. 173, 176

(1942); Kelly v. Kosuga, 358 U.S. at 519.

Moreover, the federal law, which is binding on federal

and state courts by foree of the Supremacy Clause of the

United States Constitution, Article VI, el. 2, is not limited

to statutes and treaties, but includes judicial decisions which

comprise the federal common law. See, e.g., Free v. Bland,

369 U.S. 663, 668 (1962): Banco Nacional De Cuba v. Sab-

20

batino, 376 U.S. 398, 421-427 (1964); Yiatchos v. Yiatchos,

376 U.S. 306 (1964); Local 174, Teamsters, Chauffeurs,

Warehousemen & Helpers of Am. v. Lucas Flour Co.,

361 U.S. 95 (1962); Hinderlider v. LaPlata River Co., 304

U.S. 92, 110 (1938).

This Court has determined in a number of cases that

federal common law applies te determine the rights of

Indian tribes. See e.y., Oneida v. Oneida Indian Nation,

470 U.S. —, 84 L.Ed.2d 169, 179 (1985) (tribal right to

sue to enforce aboriginal land rights); Oneida Indian Na-

tion v. County of Oneida, 414 U.S. 661, 666-667 (1974)

(tribal right to sue for possession of land); United States

v. Santa Fe Pacific R. Ceo., 314 U.S. 339 (1941) (tribal right

to sue trespassers for aecounting); National Farmers

Union Insurance Co. v. Crow Tribe, 471 U.S. —, 85

L.Ed.2d 818, 824-825 (1985) (the extent of tribal judicial

jurisdiction over non-Indian tortfeasor).

Kspecially relevant to the question in this ease is this

Courc’s recent decision in National Farmer’s Union Ins.

Co. v. Crow Tribe. In that ease, it was held that the

extent of a tribe’s judicial jurisdiction over a non-Indian

tortfeasor where the tort occurred within the reservation

presents a federal question:

[T]he power of the Federal Government over the

Indian tribes is plenary. Federal law, implemented

by statute, by treaty, by administrative regulations,

and by judicial decisions, provides significant pro-

tection for the individual, territorial, and political

rights of the Indian tribes.

85 L.Md.2d at 824; accord; Oneida v. Oneida Indian Nation,

84 L..ed.2d at 179.

Indeed, this Court has said that the poliey adopted

by Congress in those areas within Congress’ legislative

21

authority under the Constitution is as much the policy of

states as if the law had emanated from the states’ own

legislatures. In Testa v. Katt, 330 U.S. 386, 392 (1947),

this Court soundly rejected the contention that Connecti-

cut courts could decline to enforce federal statutory rights

deemed contrary to Connecticut policy:

The suggestion that the act of Congress is not

in harmony with the policy of the State, and there.

fore that the courts of the State are free to decline

jurisdiction, is quite inadmissible, because it presup-

poses what in legal contemplation does not exist. When

Congress, in the exertion of the power confided to it

by the Constitution, adopted that act, it spoke for all

the people and ail the States, and thereby established

a policy for all. That policy is as much the policy of

Connecticut as if the act had emanated from its own

legislature, and should be respected accordingly in

the courts of the State.

Id. at 392; accord, McKnett v. St. Louis & San Francisco

Railway Co., 292 U.S. 230, 234 (1984); Mondou v. N.Y., &

H.R. Co., 223 U.S. 1 (1912).

Thus, general principles governing the law to be

applied by federal courts in diversity cases require that

the federal infringement doctrine be applied to determine

whether diversity jurisdiction may be exercised over a

reservation-based claim against an Indian.

IV. THE EXHAUSTION RULE ANNOUNCED IN NA-

TIONAL FARMERS UNION INS. CO V. CROW

PRIATE IN DIVERSITY CASES

Amici urge this Court to affirm the Ninth Cireuit’s

decision that federal courts in diversity cases are, like state

22

courts, barred from asserting jurisdiction over a claim

when such assertion would infringe on tribal self-govern-

ment. Assuming this Court affirms that decision, the

holding in National Farmer’s Union Ins. Co. v. Crow Tribe,

471 U.S. —, 85 L.Ed.2d 818 (1985), should then apply where

a question is raised concerning the extent of tribal juris-

diction over the claim in question.

In National Farmers Union, this Court ruled that

federal questions concerning the nature and extent of

tribal court jurisdiction must be referred to the tribal

court for initial examination. That helding should also

govern when such federal questions are raised in diversity

cases. As shown in part IIT B, supra, federal law provides

the substantive rule of decision as to federal questions

raised in diversity cases,

In this case, however, lowa Mutual does not question

the jurisdiction of the Blackfeet Tribe over the elaim

raised. Lowa Mutual concedes that the State of Montana

would not have jurisdiction over its claim because such

jurisdiction would intrude upon tribal rights of self-gov-

ernment. See, Petitioner’s Brief at 5-7. As lowa Mutual

states: ‘‘what precludes Iowa Mutual from suing the La-

Plantes and the Willman’s in Montana courts is the latter’s

status as reservation Indians.*’ /d. at 7.

Hence, assuming the infringement doctrine is held to

limit federal diversity jurisdiction, lowa Mutual concedes

that that doctrine vests exclusive jurisdiction in the Black-

feet tribal court over its claim. The rule in National!

Farmers Union therefore need not be applied, and the

federal court should simply dismiss this case for lack of

jurisdiction.

23

V. THE EXERCISE OF DIVERSITY JURISDICTION

MAY BE BARRED BY THE PREEMPTION DOC.

TRINE, EVEN THOUGH THE TRIBE DOES NOT

EXERCISE JURISDICTION OVER THE CLAIM

The Ninth Cireuit, in its opinion in this case, reaf-

firmed the rule adopted in its earlier decision R. J.

Williams Co. v. Fort Belknap Housing Authority, 719

F.2d 979, 983-984 (Sth Cir. 1983), tnat federal courts in

diversity cases, have jurisdiction over claims which federal

law vests exclusively in an Indian tribe, if there is no

tribal forum for such claims. The Ninth Circuit reasoned

that in these instances, there is no interference with tribal

rights of self-government. Jd. This position is unsound

because it fails to consider that state jurisdiction

and federal diversity jurisdiction over reservation-based

claims against tribal members is delimited not only by the

infringement doctrine, but by the preemption doctrine as

well. This Court has repeatedly emphasized that

the assertion of state authority over tribal reserva-

tions remains subject to ‘‘two independent but related

barriers.’’ [Citation omitted. ]

First, a particular exercise of state authority may be

foreclosed because it would undermine ‘‘the right of

reservation Indians to make their own laws and be

ruled by them.’’ [Citation omitted. ]

°This position is dictum in the opinion. However, amici are

concerned that an affirmance by this Court of the Ninth Cir-

cuit’s decision may be broadly construed to affirm the position

that lack of a tribal forum permits federal courts to assert di-

versity jurisdiction over claims otherwise within tribal juris-

diction. Hence, amici present this argument to show the Court

the unsoundness of this position. Based upon this showing,

amici urge this Court, in affirming the Ninth Circuit’s decision,

expressly to disapprove the aforestated position.

24

Second, state authority may be preempted by incom-

patible federal law.

Three Affiliated Tribes v. Wold Engineering, 467 U.S.

158, 148 (1984.)

The decisions of this Court have conclusively estab-

lished that tribal jurisdiction over reservation-based claims

by non-Indians against Indians is exclusive under both the

infringement and the preemption doctrine. See, e.g

Williams v. Lee, 358 U.S. 217, 221-223 (1959); Kennerly

v. District Court of Montana, 400 U.S. 423, 426-428 (1971);

Three Affiliated Tribes v. Wold Engineering, 467 US.

138, 148 (1984); Three Affiliated Tribes v. Wold Engineer-

ing, 476 U.S. —, 90 L.Ed.2d 881, 887 (1986).

Under the infringement test, the question for -state

courts and federal courts in diversity cases is whether the

exercise of jurisdiction over reservation-based claims -by

non-Indians against Indians will interfere with tribal self-

government. McClanahan v. Arizona Tax Commission, 411

U.S. 164, 179 (1973). And under the preemption test, the

question is whether the claim ‘‘is totally within the sphere

which the relevant treaty and statutes leave ... for the

Indians themselves.’’ McClanahan at 179-180. State courts

and federal courts in diversity cases must apply both tests

in determining whether they may exercise jurisdiction over

claims which are within a tribe’s jurisdiction. It is possible

that the exercise of state or federal jurisdiction over a

claim will not contravene the infringement doctrine, but

will contravene the preemption doctrine.

The controlling case is Kennerly v. District Court of

Montana, 400 U.S. 423 (1971). In Kennerly, this Court held

that Montana vas barred from exercising jurisdiction over

25

a claim by a non-Indian against a Blackfeet tribal member

which arose on the reservation, even though the Blackfeet

Tribe legislatively authorized Montana to exercise concur-

rent jurisdiction over such claims. The Court held that

Montana could aequire such jurisdiction only by compli-

ance with the procedure set forth in Pub.L. 280, 25 U.S.C.

§§ 1321-26. Kennerly, 400 U.S. at 427.

A fortiori, a state must also be prohibited from exer-

cising exclusive jurisdiction over such claims, absent com-

pliance with Pub.L. 280, when the tribe has legislatively

determined not to exercise jurisdiction over such claims

and has not expressly consented to state jurisdiction.

Likewise, in McClanahan, this Court expressly held

that where federal law reserves exclusive jurisdiction in a

tribe, a state may not exercise jurisdiction over claims

subject to exclusive tribal jurisdiction even though tribal

self-government will not be infringed. McClanahan held

that an Arizona income tax could not lawfully be applied

to income of Navajo Indians and their property on the

Navajo reservation where the state had not aequired juris-

diction to tax on-reservation income and property by com-

plying with Pub.L. 280, even though the Tribe itself did

not tax such income. The reservation activity sought to be

taxed by Arizona was found to be

totally within the sphere which the relevant treaty

and statutes leave for the Federal Government and for

the Indians themselves. Appellee cites us to no cases

holding that this legislation may be ignored simply

because tribal self-government has not been infringed.

McClanahan, 441 U.S. at 179-180. The Court relied on its

previous decision in Kennerly for the principle that non-

infringement of tribal self-government is an insufficient

26

basis te overcome federal law reserving exclusive tribal

jurisdiction over claims.

The principle established by Kennerly and McClana-

han is soundly based in the congressional policy of en-

ecouraging tribal self-government. This policy basis is

well-stated in Enrique v. Supertor Court, 115 Ariz. 342,

565 P.2d 522 (Ct. App. 1977) in which the state court de-

clined to take jurisdiction ever a reservation-based tort

elaim by a non-Indian against an Indian, even though

there was no showing that a tribal forum existed:

[The] right of self-government ineludes the right to

decide what conduct on the reservation wil! subject

the Indians living there to civil liability in the Tribal

court. The fact that the record here does not disclose

whether the Tribal court does in fact provide a “erum

for the recovery for personal injuries is of no moment

since assumption of jurisdiction by the state court

would be, in effect, a declaration by a state court that

such conduct is tortious, a declaration that only the...

Tribe can make.

Id. at 523. See, also, F. Cohen, Handbook of Federal in-

dian Law 351 (1982) (“A tribe’s legislative jurisdiction

over its own people and within its own terr’tory must in-

clude the right not to legislate at all in an area, if self-

government is to be meaningful.”)

Thus, amici submit that the rule adopted by the Ninth

Circuit in R, J. Williams, and reaffirmed in this case, is

directly contrary to this Court’s decision in Kennerly and

McClanahan, because it fails to test the propriety of diver-

sity jurisdiction by the preemption doctrine as well as by

the infringement doctrine. This failure effectively trans-

forms the infringement doctrine into a tool for the dimin-

ishment of jurisdiction reserved to tribes by federal

27

treaties and statutes. Such a result is directly contrary

to this Court’s consistent view of the infringement doctrine

as one of two independent ‘‘bars’’ to the assertion of state

authority over tribal reservations. See, Three Affiliated

Tribes v. Wold Engineering, 467 U.S. at 148.'°

In this case, the Blackfeet tribal court, at the trial

level, has now ruled that tribal law empowers that court

to adjudicate Lowa Mutual’s claim in this case of non-

liability under an insurance contract.'' The memorandum

and order of the Blackfeet tribal court setting forth this

ruling is reproduced in the parties’ Joint Appendix at 33-

44. Based upon this tribal decision, under the infringe-

ment doctrine, the Blackfeet tribai court has exclusive

While the infringement doctrine may be applied as the

threshold test for exclusive tribal jurisdiction, see Fisher v. Dis-

trict Court, 424 U.S. 382, 386 (1976), its most appropriate appli-

cation is in those cases in which the tribe and the state have con-

current jurisdiction. A typical example of such a case is a res-

ervation-based claim by a tribal member against a non-Indian.

In Three Affiliated Tribes v. Wold Engineering, 476 U.S. —,

90 L.Ed.2d 881 (1986) (Wold II), the Court ruled that North Da-

kota had jurisdiction over such a claim “for which there is no

other forum.” 90 L.£d.2d at 889. This decision was based upon the

Court’s reasoning in Three Affiliated Tribes of the Fort Berthold

Reservation v. Wold Engineering, 467 U.S. 138 (1984) (Wold 1),

that the exercise of state jurisdiction over the claim was “com-

patible with tribal autonomy when... the suit is brought by

the tribe itself and the tribal court lacked jurisdiction over the

claim at the time the suit was instituted.” /d. at 122.

"Generally, an insurance company presents a claim of non-

liability through a declaratory judgment action against the in-

sured. See, e.g., 7 Williston on Contracts § 914 at 423-24 (1963).

However, the tribal court apparently aliowed this claim to be

presented by the company as a defense in the original action

brought against the Wellmans and lowa Mutual Insurance Com-

pany as the Wellman’s insurer. In either instance, the claim is

clearly classifiable as a claim against an Indian defendant.

28

jurisdiction over petitioner’s claim and such claim cannot

be adjudicated on its merits in this diversity action.

Ly

VV

CONCLUSION

For all of the above reasons, the decision of the Ninth

Cireuit that federal diversity jurisdiction is delimited by

the infringement doctrine announced in Williams v. Lee

should be affirmed.

Respectfully submitted,

Yvonne T. Knicut

Native American Rights Fund

1506 Broadway

Boulder, CO 80302

(303) 447-8760

Counsel of Record for all AMICI

CLAUDEEN Bates ARTHUR

AND Bruce R. Greene

Navajo Nation Department of

Justice

P.O. Drawer 2010

Window Rock, AZ 86515

Counsel for the Navajo Nation

Tribe of Indians

Harotp A. MontrEau

Triba! Legal Department

Confederated Salish and Kootenai

Tribes of the Flathead

Reservation :

Box 258

Pablo, MT 59855

Counsel for Confederated Salish

and Kootenai Tribes of the

Flathead Reservation

September, 1986

29

Date T. WHITE

F'REDERICKS AND PELYGER

The Canyon Center

1881 9th Street, Suite 216

Boulder, CO 80302

Counsel for the Arapaho Tribe of

the Wind River Reservation

W. Ricuarp West, JR.

Friep, Frank, Harris, SHRIVER,

AND JACOBSON

1001 Pennsylvania Ave., N.W.

Suite 800

Washington, DC 20004-2505

Counsel for the Shoshone Tribe of

the Wind River Reservation

Howarp FuNKE

It. Hall Business Council

P. O. Box 306

Ft. Hall, ID 83203

Counsel for the Shoshone-Bannock

Tribes of the Fort Hall

Reservation