# Amicus Curiae Brief — Iowa Mutual Insurance v. LaPlante > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0102%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1987 - **Citation:** 480 U.S. 9 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0102%3A10. Public record. Not legal advice.