Amicus Curiae Brief — National Farmers Union Insurance v. Crow Tribe of Indians

\ Office - Supreme Court, U.S,

No. 84-320 FILED

Iu the Supreme Court of the Unite States pe.

OCTOBER TERY. 1984 ALEXANDER L. STEVAS

CLERK

NATIONAL FARMERS UNION INSURANCE COMPANIES, et al.

; Vv.

Crow TRIBE OF INDIANS, et al.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

RIEF AMICI CURIAE OF THE AS* iNIBOINE AND

BRIEF AMICI CURIAE OF THE ASS)... [BOINE AND

SIOUX TRIBES OF THE FORT PECK RESERVATION,

CHEYENNE RIVER SIOUX TRIBE, DEVILS LAKE

SIOUX TRIBE, MESCALERO APACHE TRIBE,

NEZ PERCE TRIBE, PUEBLO OF LAGUNA,

SENECA NATION OF INDIANS, STANDING ROCK

SIOUX TRIBE, AMERICAN INDIAN LAWYER

TRAINING PROGRAM, INC., ASSOCIATION ON

AMERICAN INDIAN AFFAIRS, INC., NATIONAL

AMERICAN INDIAN COURT JUDGES ASSOCIATION,

NATIONAL INDIAN JUSTICE CENTER AND

NORTHWEST INTERTRIBAL COURT ASSOCIATION

ARTHUR LAZARUS, JR., P.C.

W. RICHARD WEST, JR.*

B. KEVIN GOVER

FRIED, FRANK, HARRIS, SHRIVER

& KAMPELMAN

600 New’Hampshire Avenue, N.W.

Suite 1000

Washington, D.C. 20037

(202) 342-3500

Counsel for Cheyenne River Sioux

Tribe, Nez Perce Tribe, Pueblo of

Laguna, Seneca Nation of Indians,

Association on American Indian

Affairs, Inc., American Indian

Lawyer Training Program, Inc.,

National American Indian Court

Judges Association, National

Indian Justice Center and

Northwest Intertribal Court

* Attorney of Record Association

[List of Counsel Continued on Inside Cover]

4

Rr

WILSON - EPEsS PRINTING Co.. Inc. - 789-0096 - WASHINGTON. D.C. 20001 WW

REID PEYTON CHAMBERS

KEVIN A. GRIFFIN

SoNoSKY, CHAMBERS & SACHSE

1050 31st Street, N.W.

Washington, D.C. 20007

(202) 342-9131

Counsel for Assiniboine and Sioux

Tribes of the Fort Peck Reserva-

tion, Devils Lake Sioux Tribe and

Standing Rock Sioux Tribe

GEORGE E. FETTINGER

LESLIE SECKLER

FETTINGER & BLOOM oe

414 Tenth Street, Suite201 «». he

Alamogordo, NM 88310

(505) 487-6620

Counsel for the Mescalero Apache

Tribe

BEST AVAILABLE COPY

Iu the Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-320

NATIONAL FARMERS UNION INSURANCE COMPANIES, et al.

Vv.

Crow TRIBE OF INDIANS, et al.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

MOTION FOR LEAVE TO FILE

BRIEF AMICI CURIAE OF THE ASSINIBOINE AND

SIOUX TRIBES OF THE FORT PECK RESERVATION,

CHEYENNE RIVER SIOUX TRIBE, DEVILS LAKE

SIOUX TRIBE, MESCALERO APACHE TRIBE,

NEZ PERCE TRIBE, PUEBLO OF LAGUNA,

SENECA NATION OF INDIANS, STANDING ROCK

SIOUX TRIBE, AMERICAN INDIAN LAWYER

TRAINING PROGRAM, INC., ASSOCIATION ON

AMERICAN INDIAN AFFAIRS, INC., NATIONAL

AMERICAN INDIAN COURT JUDGES ASSOCIATION,

NATIONAL INDIAN JUSTICE CENTER AND

NORTHWEST INTERTRIBAL COURT ASSOCIATION

Pursuant to Rule 36.3, the above-named Indian tribal

governments and Indian-interest organizations move for

leave to file this brief amici curiae in the above-captioned

case. Respondents Leroy Sage and Flora Not Afraid have

consented in writing to the filing of this brief. Petition-

ers have been asked for consent, but as of this writing

have not given written consent. Respondents Crow Tribe

and Crow Tribal officials are without counsel at this time

and, therefore, have not given their consent.

INTEREST OF AMICI CURIAE

Amici Assiniboine and Sioux Tribes of the Fort Peck

Reservation, Cheyenne River Sioux Tribe, Devils Lake

Sioux Tribe, Mescalero Apache Tribe, Nez Perce Tribe,

Pueblo of Laguna, Seneca Nation of Indians and Stand-

ing Rock Sioux Tribe all are federally-recognized Indian

tribes. Each has a well-organized legal system and each

asserts civil jurisdiction over non-Indians in some cases.

The outcome of this case may directly affect the per-

missible scope of the civil jurisdiction of amici’s courts

and the extent to which federal courts intrude into the

functioning of those courts.

The National American Indian Court Judges Associa-

tion is an organization of 250 tribal judges representing

149 tribal courts across the country. The NorthWest In-

tertribal Court Association is the tribal court system for

thirteen tribes in the State of Washington. The Ameri-

can Indian Lawyer Training Program, Inc., and the Na-

tional Indian Justice Center are non-profit corporations.

These organizations are devoted to the improvement and

strengthening of tribal justice systems and the protection

of tribal jurisdiction.

The Association on American Indian Affairs, Inc., is a

nonprofit membership corporation organized under the

laws of the State of New York for the purpose of pro-

tecting the rights and improving the welfare of Ameri-

can Indians. The Association frequently has participated

in leading cases involving issues of Indian law before the

federal and state courts, including the filing of briefs

amicus curiae with this Court.

The issues in this case present broad questions regard-

ing the scope of tribal civil authority over non-Indians

and the power of federal courts to impede tribal action.

¥

In order to facilitate this Court’s consideration of the

legal and policy implications of this case, amici will show

that: (1) Indian tribal courts generally have jurisdiction

to adjudicate the liability of non-Indians for acts affect-

ing Indians and occurring on a reservation; and (2) if

federal courts in fact have jurisdiction over actions chal-

lenging tribal civil adjudicatory authority, such jurisdic-

tion should be exercised only if the persons challenging

tribal authority have exhausted their remedies under

tribal law.

Amici are concerned that these issues will not be ad-

dressed adequately by the parties for two reasons. First,

the parties seek a specific result in this-case while amici

are more concerned with the broader implications of the

Court’s decision and its effect upon them. Second, re-

spondent Crow Tribe currently is without counsel and the

interests of tribal governments may not be presented tg

the Court. Wherefore, amici request that their motion for

leave to file the attached brief amici curiae be granted.

Respectfully submitted,

W. RICHARD WEST, JR.

Suite 1000

600 New Hampshire Ave., N.W.

Washington, D.C. 20037

TABLE OF CONTENTS

TABLE OF AUTHORITIES .............--.------------1--:e00e--00+

INTEREST OF AMICI CURIAE ........00022022-------e---

SUMMARY OF ARGUMENT .............2...02..2....--c2---cseceeeee

ARGUMENT .

5

II.

The Crow Tribal Court may assert jurisdiction

over civil actions arising on the Reservation

brought by tribal members against non-members

absent any express limitation in federal statu-

Be er ee BI eavreritemnsterestcncienntatencdiereemegzen

A. The decisions of this Court and other courts

have recognized consistently the power of

Indian governments to adjudicate personal

and property rights of non-Indians -..............

B. The limitation on tribal power recognized in

Oliphant v. Suquamish Indian Tribe, ana-

lyzed in light of the interests protected by it

and its historical evolution, does not apply to

tribal civil adjudicatory jurisdiction -..........

C. The District Court plainly erred in holding

that Montana v. United States forecloses the

exercise of tribal jurisdiction in this case

D. Tribal jurisdiction over the School District

is not barred by sovereign immunity ...........

Assuming that federal courts have jurisdiction

over such matters, out of respect for tribal

processes and prerogatives, and in order that

wasteful and unnecessary litigation be avoided,

federal courts should abstain from hearing cases

brought by non-Indian challengers until tribal

remedies have been exhausted

15

18

ii

TABLE OF CONTENTS—Continued

A. Traditional concerns regarding comity and

solicitude for tribal self-government require

that tribal courts have the first opportunity

to resolve questions as to their jurisdiction..

B. The conduct of the petitioners in this matter

exemplifies the unhappy consequences follow-

ing from the absence of a requirement that

challengers of tribal jurisdiction first ex-

haust their tribal remedies ...........................-.-

III. Tribal courts are modern judicial tribunals ap-

plying familiar rules of law and procedure and

wholly capable of applying the complex federal

law regarding tribal jurisdiction -.......................

CII stccccereccttccce senses cacsrenascnsanenscsanccsstantionanamerceone

Page

19

23

iii

TABLE OF AUTHORITIES

CASES: Page

Babbitt Ford, Inc. vy. Navajo Indian Tribe, 710

F.2d 587 (9th Cir. 1983), cert. den., —— US.

» 104 S.Ct. 1707 (1964) ............................-..- 7,17

Blackfeet Tribal Business Council v. East Glacier

Water & Sewer Dist., 11 Indian L. Rep. 6021

(Blackfeet Tr. Ct. 1964) ....................2.--0---c--se-ee0+0 26

Brunette vy. Dann, 417 F. Supp. 1382 (D. Idaho

A 21

Buster v. Wright, 135 F. 947 (8th Cir. 1905),

appeal dismissed, 203 U.S. 599 (1906) -............. 15

Cardin v. De La Cruz, 671 F.2d 363 (9th Cir.),

cert. den., 459 U.S. 967 (1982) ...................--------- 7

Conroy v. Frizzell, 429 F. Supp. 918 (D.S.D.

a 21

Cowan V. Rosebud Sioux Tribe, 404 F. Supp. 1338

HAA __——_—————————————— 11

Crow Creek Sioux Tribe v. Buum, 10 Indian L.

Rep. 6031 (Intertribal Ct. App. 1983) .............. 25

Edelman v. Jordan, 415 U.S. 651 (1974) ................ 19

Ex Parte Crow Dog, 109 U.S. 556 (1883) .............. 6, 14

Fisher v. District Court, 424 U.S. 882 (1976) ....17, 24, 25

Howlett v. Salish & Kootenai Tribes, 529 F.2d

ee 20

Janis v. Wilson, 521 F 2d 724 (8th Cir. 1975) ........ 20

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

Knight v. Shoshone & Arapahoe Indian Tribes,

670 F.2d 900 (10th Cir. 1982) —..............2....--0.... 7

McClanahan v. Arizona State Tax Comm’n, 411

2 Me eS er 16

McCurdy v. Steele, 506 F.2d 653 (10th Cir. 1974).. 21

Merrion Vv. Jicarilla Apache Tribe, 455 U.S. 130

i 6,7

Mescalero Apache Tribe v. Jones, 411 U.S. 145

18

Middlesex County Ethics Comm. v. Garden State

Bar Ass’n, 457 U.S. 423 (1982) .........................- 22

Montana V. Peretti, 661 F.2d 756 (9th Cir. 1981) .. 19

Montana v. United States, 450 U.S. 544 (1981).. 6, 8, 11,

15, 16

Morris v. Hitchcock, 194 U.S. 384 (1904) _........... 15

iv

TABLE OF AUTHORITIES—Continued

Page

Morton v. Mancari, 417 U.S. 535 (1974) ................. 21

National Farmers Union Ins. Co. v. Crow Tribe,

560 F. Supp. 213 (D. Mont. 1983) ........................ 16

National Farmers Union Ins. Co. v. Crow Tribe,

TE PG BED CT Gir TIED cnncnccccrcncceecccsescesseces 19

Nevada Vv. Hall, 440 U.S. 410 (1979) ....................... 18

New Mexico v. Mescalero Apache Tribe, 462 U.S.

CO ————— 8

North Dakota ex rel. Wefald v. Kelly, 10 L. Rep.

6059 (Sianding Rock Sx. Tr. Ct. 1983) ............ 25

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

TIE: <-ccshcssiisasnstncapnedindicemissenigneimsesisinnineaiianainetsamianesimentee passim

Rosebud Sioux Tribe v. Driving Hawk, 534 F.2d

Be GE IL, TTI cies: csntsasansnciasnbeienineneedineecemaniiieds 20

Runs After v. Cheyenne River Sioux Tribe, 437

A‘ GR 21

Sage v. Lodge Grass School Dist., 10 Indian L.

Rep. 6019 (Crow Tr. Ct. 1982) ........................... 14

Santa Clara Pueblo v. Martinez, 486 U.S. 49

PP TTIUTI . scscecicsnconiienesinsieaisaniiiniceideapinaaidisiaedecnshinibiaiiiienaiomisaatil passim

Three Affiliated Tribes of the Ft. Berthold Reser-

vation Vv. Wold Engineering, —— U.S. ——,

Oe Oe es 6,8

Tom V. Sutton, 533 F.2d 1101 (9th Cir. 1976) ........ 21

United States v. Mazurie, 419 U.S. 544 (1975) _..... 7

United States v. United Mine Workers, 330 U.S.

BR RIED cnicenssccciunisiinssssieidelnamncintislediiindsciihtiepidiaiintinsiatrdas 21

United States ex rel. Rollingson v. Blackfeet Tribe,

244 F. Supp. 474 (D. Mont. 1965) ~..................... 26

Washington v. Confederated Tribes of Colville In-

dian Reservation, 447 U.S. 184 (1980)................ passim

Wickard v. Filburn, 317 U.S. 111 (1942) ............... 17

Williams v. Lee, 358 U.S. 217 (1959) ....................... passim

STATUTES:

Anti-Injunction Act, 28 U.S.C. § 2283 (1982) -....... 23

Comprehensive Code of Justice of the Assiniboine

EE TE IIE -eccscinicsisincsintetesisentahiniiediibiceindmamimane 2, 28

Vv

TABLE OF AUTHORITIES—Continued

Page

Crow Allotment Act of 1920, 41 Stat. 751 000000000... 18

Crow Rules of Civil Procedure ............... -................-- 24, 27

Crow Treaty of May 7, 1868, 15 Stat. 667 ................ 13

Devils Lake Sioux Tribe Law and Order Code,

Chapter I, Title B, § 104(2) (a) ........00000...... Ens 2, 27

Sag SIGNI FSU ASE re Sn ee Re 27

Indian Civil Rights Act of 1968, 25 U.S.C. §§ 1301-

REESE ae ees a ea eT 20, 23

Indian Self-Determination and Education Assist-

ance Act, Pub. L. 93-638, 88 Stat. 2203 (1975)... 21

Montana Code Ann. § 2-9-8311 (1983) 0.000000... 19

Montana Const., Art. II, $18 .................................. 18

Navajo Treaty of June 1, 1868, 15 Stat. 667 _........ 13

Sioux Treaty of April 28, 1868, 15 Stat. 635 _........ 13

Standing Rock Sioux Tribe Code of Justice ............ 2, 27

ADMINISTRATIVE MATERIALS:

Rs Oe ID I gcc cscccesecstosieenesenesinn 27

ls cssdcissneinnaniobasbinal 7,9,15

On ns ctl 9, 10

Se i I RS I a csictessnenioanscinensnls 15

MISCELLANEOUS:

Cohen, F., Handbook of Federal Indian Law

Ra FA Re Naa Ce DR 7,12

Cohen, F., Handbook of Federal Indian Law

CET nik as oe AOE a ee passim

Indian Self-Determination and the Role of Tribal

Court 11-60 (American Indian Lawyer Training

I 12

Note, Conflict of Laws and the indian Reservation,

8 Am. Indian L. Rev. 361 (1981) —.......0000000000..... 14

Restatement (Second) Conflicts of Laws 2d §6

a a a 14

Wright, Law of Federal Courts §16 (1976)........ 21

Iu the Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-320

NATIONAL FARMERS UNION INSURANCE COMPANIES, et al.

Vv.

Crow TRIBE OF INDIANS, et al.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICI CURIAE OF THE ASSINIBOINE AND

SIOUX TRIBES OF THE FORT PECK RESERVATION,

CHEYENNE RIVER SIOUX TRIBE, DEVILS LAKE

SIOUX TRIBE, MESCALERO APACHE TRIBE,

NEZ PERCE TRIBE, PUEBLO OF LAGUNA,

SENECA NATION OF INDIANS, STANDING ROCK

SIOUX TRIBE, AMERICAN INDIAN LAWYER

TRAINING PROGRAM, INC., ASSOCIATION ON

AMERICAN INDIAN AFFAIRS, INC., NATIONAL

AMERICAN INDIAN COURT JUDGES ASSOCIATION,

NATIONAL INDIAN JUSTICE CENTER AND

NORTHWEST INTERTRIBAL COURT ASSOCIATION

Pursuant to Rule 36.3, the above-named Indian tribal

governments and Indian-interest organizations file this

brief amici curiae in support of the respondents in the

above-captioned case.

2

INTEREST OF AMICI CURIAE

Amici Assiniboine and Sioux Tribes of the Fort Peck

Reservation, Cheyenne River Sioux Tribe, Devils Lake

Sioux Tribe, Mescalero Apache Tribe, Nez Perce Tribe,

Pueblo of Laguna, Seneca Nation of Indians, and Stand-

ing Rock Sioux Tribe are all federally recognized Indian

tribes, with tribal governments recognized by the Secre-

tary of the Interior. Each has a well-organized legal sys-

tem, including tribal courts.! Each asserts civil jurisdic-

tion over non-Indians in some cases.? The outcome of this

case may directly affect the permissible scope of the civil

jurisdiction of amici’s courts. It may also affect the ex-

tent to which federal courts intrude into the functioning

of those courts. Thus, amici have a direct interest in the

outcome of this case.

The National American Indian Court Judges Associa-

tion is an organization of 250 tribal judges representing

149 tribal courts across the country. The Northwest

Intertribal Court Association is the tribal court system

for thirteen tribes in the State of Washington. These

organizations are devoted to the improvement and

strengthening of tribal courts, judges and procedures,

and the protection of tribal court jurisdiction. Between

them, they represent the vast majority of all operating

Indian tribal court systems.

1Two of the Tribes have recently adopted comprehensive revi-

sions of their Codes of Justice, the Standing Rock Tribe in 1981 and

the Assiniboine and Sioux Tribes in 1985. A third, the Cheyenne

River Sioux Tribe, currently is engaged in a revision of its code

as well.

2 E.g., Comprehensive Code of Justice of the Assiniboine and

Sioux Tribes of the Fort Peck Indian Reservation, Title I, Sec. 107;

Standing Rock Sioux Tribe Code of Justice, Title I, Sec. 1-107;

Devils Lake Sioux Tribe Law and Order Code, Chapter I, Sec.

102(3).

3

The American Indian Lawyer Training Program, Inc.,

and the National Indian Justice Center are non-profit cor-

porations. These organizations are devoted to the im-

provement and strengthening of tribal justice systems.

To this end, they offer a variety of training programs

for tribal court judges, advocates and lay personnel.

The Association on American Indian Affairs, Inc., is a

nonprofit membership corporation organized under the

laws of the State of New York for the purpose of pro-

tecting the rights and improving the welfare of American

Indians. The Association is the largest Indian-interest

organization in the United States, and is nation-wide in

scope, with a membership of 50,000 that consists of both

Indians and non-Indians. The Association frequently has

participated in leading cases involving issues of Indian

law before the federal and state courts, including the

filing of briefs amicus curiae with this Court.

The issues in this case present broad questions regard-

ing the scope of tribal civil authority over non-Indians

and the power of federal courts to impede tribal action.

In order to facilitate this Court’s consideration of the

legal and policy implications of this case, amici will ad-

dress only some of the several issues implicit in the

questions as to which certiorari was granted. Specifically,

amici will show that: (1) Indian tribal courts generally

have jurisdiction to adjudicate the liability of non-In-

dians for conduct affecting Indians and occurring on a

reservation; (2) tribal jurisdiction over the School Dis-

trict is not barred by sovereign immunity; (3) if federal

courts in fact have jurisdiction over actions challenging

tribal civil adjudicatory authority, such jurisdiction

should be exercised only if the persons challenging tribal

authority have exhausted their remedies under tribal law;

and (4) Indian tribal courts are modern tribunals em-

ploying rules of law and procedure familiar to all.

4

SUMMARY OF ARGUMENT

The decisions of this Court have established beyond per-

adventure that Indian tribes have the power of civil ad-

judication in disputes involving Indians and non-Indians

arising in Indian Country. This Court also has recog-

nized tribal regulatory power over non-Indians—a power

which must involve the adjudicatory power to enforce

those regulations. Tribal civil jurisdiction is not divested

by constraints implicit in the tribes’ status as domestic

dependent sovereigns. The Executive Branch and the

Congress have joined the federal courts in acting con-

sistently on the assumption that the tribes retain such

jurisdiction.

In the case of negligent acts causing personal injury

to tribal members, the health and welfare of the tribe

clearly are at stake, and the tribe, therefore, has juris-

diction to adjudicate civil liability flowing from that con-

duct. In this regard, the tribe represents its members

collectively. If non-Indian conduct affecting one tribal

member is one instance of a larger class of conduct that

threatens the health and welfare of tribal members, the

tribe has jurisdiction to regulate, and to adjudicate lia-

bility arising from, that conduct.

Sovereign immunity does not bar the action in Crow

Tribal Court. Just as a tribe is subject to state jurisdic-

tion for its off-reservation activities, so too is a state

subject to tribal jurisdiction for its on-reservation activ-

ities. Moreover, Montana has waived its immunity from

suit for local governmental entities.

Assuming that federal court jurisdiction exists to hear

challenges to tribal civil adjudicatory jurisdiction, that

authority should be exercised only where necessary. Con-

siderations of comity, judicial restraint and judicial econ-

omy support a requirement that non-Indians challenging

tribal jurisdiction first litigate the question in tribal

forums. This case exemplifies the unhappy consequences

that result when exhaustion is not required.

5

These Indian forums, at the urging and with the as-

sistance of the United States, have evolved as modern,

competent judicial tribunals. They have shown their

facility for analyzing jurisdictional issues of the type

presented here. Their rules of law and procedure are

fair, reasonable and familiar. Respect for tribal court

processes and prerogatives supports a requirement of

federal abstention until tribal courts have expressed their

views on such jurisdictional issues.

ARGUMENT

I. The Crow Tribal Court may assert jurisdiction over

civil actions arising on the Reservation brought by

tribal members against non-members absent any ex-

press limitation in federal statutory law or tribal law.

A. The decisions of this Court and other courts have

recognized consistently the power of Indian govern-

ments to adjudicate personal and property rights of

non-Indians.

That Indian tribal courts have jurisdiction to adjudi-

cate civil claims arising on the reservation and involving

both Indian and non-Indian parties must be regarded as

beyond doubt. This conclusion follows inevitably from

previous decisions of this Court and other courts recog-

nizing the power of tribal courts to adjudicate such

controversies.

In Willams v. Lee, 358 U.S. 217 (1959), this Court

held that tribal jurisdiction over a contract dispute be-

tween a non-Indian plaintiff and an Indian defendant

was exclusive of state jurisdiction. The non-Indian plain-

tiff’s right of action, therefore, was governed by tribal

law and cognizable only in tribal court. The same result

was reached in Kennerly v. District Court, 400 U.S. 423

(1971), despite the existence of a triba] resolution pur-

6

porting to grant concurrent jurisdiction over civil suits

involving tribal members to the State of Montana.*

The results in Williams and Kennerly were grounded,

of course, in the long-standing rule that, on their reserva-

tions, Indians and their conduct are to be judged by the

rules and standards they have established for themselves.

Williams, supra, 358 U.S. at 223; Ex Parte Crow Dog,

109 U.S. 556, 571 (1883). This rule does not define limi-

tations on tribal power but, rather, defines the subject

matters as to which tribal authority is exclusive and the

states have no power to act absent a grant of authority

from Congress. The scope of tribal power consistently

has been recognized to extend far beyond merely regulat-

ing the conduct of its members. Indeed, Indian tribes

may regulate non-Indian conduct, thereby affecting im-

portant personal and property rights of non-Indians, in

a variety of ways.

In Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 141

(1982), for example, the Court held that a tribe may tax

non-Indians who conduct business on the reservation, and

that the power to tax “is an inherent power necessary to

tribal self-government and territorial management.” In

Washington v. Confederated Tribes of the Colville In-

dian Reservation, 447 U.S. 184, 152-153 (1980), the

Court noted that the power to tax non-Indians “is a fun-

damental attribute of sovereignty. .. .” In Montana Vv.

United States, 450 U.S. 544, 565 (1981), the Court stated

that “Indian tribes retain inherent sovereign power to

exercise some forms of civil jurisdiction over non-Indians

on their reservations, even on non-Indian fee lands. See

also Williams v. Lee, supra; Kennerly v. District Court,

$ That jurisdiction, while exclusive when the defendant is a

tribal member, is shared with the state when an Indian plaintiff

sues a non-Indian. Cf., Three Affiliated Tribes of the Fort Berthold

Reservation v. Wold Engineering, —— U.S. ——, 104 S.Ct. 2267

(1984).

T

supra; United States v. Mazurie, 419 U.S. 544, 557-558

(1975) .*

In recognizing the power of Indian tribes to regulate by

civil law non-Indian conduct on the reservation, the

courts implicitly have recognized tribal power to adjudi-

cate disputes arising from the application of these regu-

lations. Tribal power to tax, zone and otherwise regulate

would be empty indeed if the tribes lack the power to

adjudicate the civil liability of persons subject to such

regulations for failure to abide by them. The tribes,

therefore, clearly may adjudicate the civil liability of non-

members for violations of tribal regulations. See Babbit

Ford, Ine. v. Navajo Indian Tribe, 710 F.2d 587 (9th

Cir. 1983) (Tribal law providing for liquidated damages

against violators of tribal repossession law held valid as

applied to non-Indians).°

Neither law nor history admit of any exemption for

non-Indians from tribal civil judicial power. The peti-

tioners cannot deny that tribal courts have jurisdiction

over civil claims arising on the reservation by non-Indians

against Indians. Williams and Kennerly foreclose such

an argument. The rule should be no different when the

non-Indian is the defendant. The anomaly of requiring

* The lower federal courts show a similar understanding of tribal

civil authority over non-Indians. E.g., Babbitt Ford, Inc. v. Navajo

Indian Tribe, 710 F.2d 587 (9th Cir. 1983) (ordinance governing

self-help repossessions) ; Cardin v. De La Cruz, 671 F.2d 363 (9th

Cir. 1982) (building, health and safety regulations); Knight v.

Shoshone & Arapaho Tribes, 670 F.2d 900 (10th Cir. 1982) (zoning

ordinance).

5 This rule also was recognized by the Solicitor of the Depart-

ment of the Interior in Powers of Indian Tribes, 55 I.D. 14 (1934).

In that opinion, the Solicitor noted the well-established power of

tribes to tax and otherwise regulate non-Indians, and observed that

the laws of a tribe in subject areas within its jurisdiction, “may be

lawfully administered in the tribunals of the tribe... .” 55 I1.D.

at , reprinted in I Op. Int. Sol. 445, 471. See also F. Cohen,

Handbook of Federal Indian Law 145 (1942) (“[T]he judicial

powers of the tribe are coextensive with its legislative or executive

powers.” )

8

non-Indian suitors to bring their claims in tribal court

yet exempting them from tribal process when they are

defendants strains reason. So too does the notion that an

Indian must abide by tribal court adjudications of liabil-

ity against him, yet may not call upon that court to give

redress for injuries done him by a non-Indian.* No souud

reason exists why a tribal court should be entrusted with

the non-Indian plaintiff’s valuable chose in action, yet

may not be trusted to adjudicate the monetary liability

of the non-Indian defendant in cases such as this one.

Thus, as this Court has stated, without distinction be-

tween plaintiff and defendant:

Tribal courts have repeatedly been recognized as ap-

propriate forums for the exclusive adjudication of

disputes affecting important personal and property

interests of both Indians and non-Indians.

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65 (1978).

B. The limitation on tribal power recognized in Oli-

phant v. Suquamish Indian Tribe, analyzed in light

of the interests protected by it and its historical

evolution, does not apply to tribal civil adjudica-

tory jurisdiction.

Tribal power over non-Indians, of course, is not with-

out limitation. In Oliphant v. Suquamish Indian Tribe,

435 U.S. 191 (1978), for example, this Court held that

6 The district court, apparently recognizing the untenability of

such a distinction, dismisses the Williams rule as “old law” and

seems to say that the decision in Montana v. United States, 450

U.S. 544 (1981) overrules Williams. See 560 F. Supp. at 217.

This, quite clearly, is not so. The Montana Court itself cites Wil-

liams as support, 450 U.S. at 566, and this Court has cited Williams

favorably on several occasions since the Montana decision. E.g.,

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 103 S.Ct.

2378, 2385 (1983); Three Affiliated Tribes of the Fort Berthold

Reservation v. Wold Engineering, ——- U.S. ——,, 104 S.Ct. 2267,

2271 (1984). While the latter case indicates that the state courts

will have concurrent jurisdiction in some instances, the decision

implicitely assumes that tribal court jurisdiction over civil suits

against non-Indians is proper. Jd. at 2275. The petitioners, inter-

estingly, fail even to mention Williams in their brief.

9

Indian tribes lack the power to try and punish non-In-

dians for offenses against tribal law. The rule in Oli-

phant, however, does not operate to bar tribal civil ad-

judicatory jurisdiction. “The development of principles

governing civil jurisdiction in Indian Country has been

markedly different from the development of rules dealing

with criminal jurisdiction.” F. Cohen, Handbook of Fed-

eral Indian Law 258 (1982 ed.)

As this Court observed in Washington v. Confederated

Tribes of the Colville Indian Reservation, 447 U.S. 134,

152-153 (1980), “Executive Branch officials have con-

sistently recognized that Indian tribes possess a broad

measure of civil jurisdiction over the activities of non-

Indians on Indian reservation lands in which the tribes

have a significant interest ....” Indeed, the most com-

prehensive legal opinion extant regarding tribal powers

holds flatly that:

[O]ver all of the lands of the reservation, whether

owned by the tribe, by members thereof, or by out-

siders, the tribe has the sovereign power of deter-

mining the conditions upon which persons shall be

permitted to enter its domain, to reside therein, and

to do business.

Powers of Indian Tribes, 55 Interior Dec. 14, 50, I Op.

Int. Sol. 445, 467 (1934). In those subject areas as to

which the tribes may regulate non-Indians, they also

have the power of adjudication. Tribal laws “may be

lawfully administered in the tribunals of the tribe.” /d.,

I Op. Int. Sol. at 471.

The various administrative sources cited by the Court

in Oliphant to show that the Executive Branch assumed

the absence of tribal criminal jurisdiction draw a plain

distinction and contrary assumption with regard to tribal

civil jurisdiction. Thus, in Jurisdiction of the Courts of

the Choctaw Nation, 7 Op. Att’y Gen. 174 (1855), the

Attorney General was asked whether the tribal courts

had jurisdiction over a dispute arising between Indians

10

and a non-Indian living within the Choctaw Nation. The

Attorney General, as did this Court in Oliphant, noted

that the Choctaw treaty with the United States contained

provisions “of very significant character having exclu-

sive reference to the question of criminal jurisdiction.”

Id. at 178 (emphasis in original), and see Oliphant Vv.

Suquamish Indian Tribe, 485 U.S. 191, 197-199 (1978).

Congress had enacted a comprehensive scheme of criminal

jurisdiction over offenses by or against non-Indians in

which tribal forums had no role to play. 7 Op. Att’y Gen.

at 179; Oliphant, supra, at 200-201.

Civil jurisdiction, however, was another matter en-

tirely.

But there is no provision of treaty, and no statute,

which takes away from the Choctaws jurisdiction of

a case like this, a question of property strictly in-

ternal to the Choctaw nation; nor is there any writ-

ten law which confers jurisdiction of such a case in

any court of the United States....

The conclusion seems to me irresistible, not that such

questions are justiciable nowhere, but that they re-

main subject to the local jurisdiction of the Choctaws.

Now, it is admitted on all hands . . . that Congress

has ‘paramount right’ to legislate in regard to this

question, in all its relations. It has legislated, in so

far as it saw fit, by taking jurisdiction in criminal

matters, and omitting to take jurisdiction in civil

matters. ... By all possible rules of construction

the inference is clear that jurisdiction is left to the

Choctaws themselves of civil controversies arising

strictly within the Choctaw Nation.’

7 Op. Att’y Gen. at 179-181 (emphasis added).

7 The non-Indian subjected to tribal civil jurisdiction under the

Attorney General’s opinion was an adopted citizen of the Chick-

asaw Nation. Note, however, that his status as a Chickasaw citizen

11

The Executive Branch’s actions toward tribal courts

confirm the operative assumption that tribal courts have

civil jurisdiction over non-Indians. Since 1935, the regu-

lations governing tribal “C.F.R. courts,” see Oliphant,

supra, at 196 n. 7, have provided for tribal civil jurisdic-

tion over non-Indians where the parties consent to it.

See F. Cohen, Handbook of Federal Indian Law 254 n. 102

(1982 ed.) No non-Indian, quite obviously, can confer

jurisdiction on a tribal court where such jurisdiction does

not exist. Thus, although the tribes operating C.F.R.

courts condition their assumption of jurisdiction over

non-Indians by requiring non-Indian consent, that con-

sent does not create subject matter jurisdiction that the

tribe otherwise would lack. The Department of Interior

also has approved tribal laws that assert jurisdiction

over non-Indians. See, e.g., Cowan v. Rosebud Sioux

Tribe, 404 F. Supp. 13838 (D.S.D. 1975).§ The Executive

could not subject him to tribal criminal jurisdiction, because he

remained a citizen of the United States. By the same token, the

fact that he was a United States citizen did not immunize him from

tribal civil jurisdiction.

Tribal citizenship, of course, is not and never has been necessary

for a person to be subject to tribal civil jurisdiction. Some nexus,

however, between the non-Indian or his conduct and tribal inter-

ests to be protected by tribal jurisdiction is necessary. Cf., Mon-

tuna Vv. United States, 450 U.S. 544, 565-566 (1981). The nexus

required and its presence in this case is discussed infra at Sec-

tion I.C.

8 The fact that the present form of tribal adjudicatory bodies is

of relatively recent origin hardly suggests that the tribes lacked

civil jurisdiction, or have not exercised such jurisditcion as a

historical matter. Non-Indians entering tribal domains and deal-

ing with Indians no doubt conformed their conduct to tribal mores

and submitted to whatever dispute resolution mechanisms existed.

That such exertions of tribal authority would not be recognizable

as “civil adjudicatory jurisdiction” to the modern eye cannot

change their fundamental character as such.

The demands of modern governance have forced most tribes to

abandon their traditional methods of dispute resolution in favor

of the formalized structures and processes of Anglo-American

12

Branch long has assumed and stated explicitly that, ab-

sent limitations imposed by treaty or an act of Congress,

Indian tribes retain civil jurisdiction, both regulatory

and adjudicatory, over matters involving Indians and

non-Indians arising in Indian Country.

Congress, moreover, has evinced a similar understand-

ing. As noted by the editors of the 1982 edition of the

Handbook of Federal Indian Law, Congress has acted

disparately and, presumably, on a different set of as-

sumptions, in the separate areas of criminal and civil

jurisdiction.

Congress has provided for federal jurisdiction over

interracial crimes in Indian country since the late

eighteenth century and federal statutes today estab-

lish a comprehensive set of criminal provisions ap-

plicable to Indian country. In the civil field, however,

Congress has never enacted general legislation to

supply a federal or state forum for disputes between

Indians and non-Indians in Indian country. Further-

more, although treaties between the federal govern-

ment and Indian tribes sometimes required the tribes

to surrender non-Indian criminal offenders to state

or federal authorities, Indian treaties did not contain

provision for tribal relinquishment of civil jurisdic-

tion over non-Indians. Congress’ failure to regulate

civil jurisdiction in Indian country suggests . . . that

there was no jurisdictional vacuum to fill....

judicial bodies. During the genesis of modern tribal courts, tribal

governments, at the urging of federal officials, constrained the

jurisdiction of their courts over non-Indians to some degree. See

F. Cohen, Handbook of Federal Indian Law 382 (1942). As time

passed and tribal courts acquired greater experience and sophistica-

tion, they assertei theretofore unexercised powers of civil jurisdic-

tion, again often with the approval of federal authorities. See

generally Indian Self-Determination and the Role of Tribal Courts

11-60 (American Iadian Lawyer Training Program 1977). That

these governments deferred assertion of jurisdiction over non-

Indians until adequate procedures and capabilities were developed

should not be read as an absence of such jurisdiction.

13

F. Cohen, Handbook of Federal Indian Law 253-254

(1982 ed.); and cf., Oliphant, supra, at 201-202 (Con-

gressional legislation governing criminal jurisdiction

over non-Indians in Indian Country suggests absence of

tribal jurisdiction).

The decisions of the Court confirm this analysis. In

Williams v. Lee, 358 U.S. 217 (1959), the Court held that

the Navajo Tribal Court had exclusive jurisdiction to

adjudicate a contract dispute involving an Indian and a

non-Indian arising on the Navajo Reservation. The

Navajo treaty with the United States, Treaty of June 1,

1868, 15 Stat. 667, contained provision for federal juris-

diction over interracial crimes on the reservation. No

provision was made, however, for the adjudication of non-

criminal wrongs by or against Indians on the reserva-

tion. The Court held that, in light of the treaty, the

Navajo courts not only had jurisdiction over the matter,

but exclusive jurisdiction.

The same result was reached in Kennerly v. District

Court, 400 U.S. 423 (1971). In that case, the Blackfeet

Tribe was held to have exclusive jurisdiction over the

same sort of dispute as was present in Williams. The

Blackfeet Tribe was party to the Sioux Treaty of 1868.

Treaty of April 29, 1868, 15 Stat. 635. Like the Navajo

treaty referenced above, the Blackfeet treaty made provi-

sion for interracial crimes, but not interracial civil dis-

putes.’

Clearly, then, the shared assumption of the three

branches of the federal governinent was and is that In-

dian tribes have, and always have had, civil authority,

both regulatory and adjudicatory, over non-Indians. “In

these respects the present case[] differ[s] sharply from

Oliphant . . . , in which [the Court] stressed the shared

® The Crow Treaty of May 7, 1868, 15 Stat. 667, contains provi-

sions identical in substance to those contained in the Navajo and

Blackfeet treaties.

14

assumptions of the Executive, Judicial and Legislative

Departments that Indian tribes could not exercise crim-

inal jurisdiction over non-Indians.” Cf. Washington,

supra, 447 U.S. at 153.

Neither may it be said that subjecting non-Indians to

the rules of substantive and procedural law enforced by

tribal courts is somehow unfair. See Oliphant, supra, at

210-211. Unlike substantive criminal law, courts are

free to apply the substantive civil law of other jurisdic-

tions where appropriate. See I Restatement of the Law

(Second), Conflict of Laws 2d § 6 (1971). See also Note,

Conflict of Laws and the Indian Reservation, 8 Am. In-

dian L. Rev. 361 (1981). Tribal adjudication of dis-

putes involving non-Indians, therefore, does not “seek to

impose upon them the restraints of an external and un-

known code,” a concern expressed by this Court in Oli-

phant. Cf. 485 U.S. at 210-211, quoting Ex Parte Crow

Dog, 109 U.S. 556, 571 (1883).

Indeed, the contrary is true. Tribal courts are com-

petent tribunals applying familiar rules of substantive

law and operating under rules of procedure with which

non-Indians are well-acquainted.*° The Crow Tribal Court

in this case did not seek to apply some bizarre or arcane

rule of liability known only to the Crows. Indeed, it

found, upon hearing the plaintiff’s evidence after the de-

fendant’s default, that the school district failed to meet

standards established for it by the State of Montana.

See Sage v. Lodge Grass School District, 10 Indian L.

Rep. 6019 (Crow Tr. Ct. 1982).

Neither the legal authorities nor the policy considera-

tions upon which the Court relied in Oliphant support a

holding that tribal courts generally lack civil adjudica-

tory authority over non-Indians. The remaining ques-

tion, therefore, is whether a tribal interest of sufficient

magnitude is presented in civil adjudications against non-

10 See Section III, infra.

15

Indians which would justify the assertion of tribal power.

The answer to this question is found in this Court’s deci-

sion in Montana v. United States, 450 U.S. 544 (1981).

C. The District Court plainly erred in holding that

Montana vy. United States forecloses the exercise of

tribal jurisdiction in this case.

The general rule is that, if the tribe has some govern-

mental interest in non-Indian conduct on fee land within

the reservation, there is no impediment to tribal jurisdic-

tion." Thus, in Buster v. Wright, 1385 F. 947, 951 (8th

Cir. 1905), appeal dismissed, 203 U.S. 599 (1906), the

court observed that “the jurisdiction to govern the in-

habitants of a country is not conditioned or limited by

the title to the land which they occupy in it... .” And

see Morris Vv. Hitchcock, 194 U.S. 384, 392 (1904).

The Executive branch shares this understanding of

tribal power:

[E]ven if the Indian title to the particular lots sold

had been extinguished . . . the result is still the

same, for the legal right to purchase land within an

Indian nation gives to the purchaser no right of

exemption from the laws of such nation.

23 Op. Att’y Gen. 214, 217 (1900). In the comprehen-

sive opinion on the powers of tribal governments, the In-

terior Department Solicitor reached a similar conclusion.

55 Interior Dec. 14, 50 (1934).

11 A fortiori, when non-Indians enter reservation lands owned by

Indians, they are subject to tribal civil authority. Montana, supra

at 557. On those reservations where all of the land is owned by

Indians, therefore, the tribes always will have civil jurisdiction

over non-Indians.

12 Each of these authorities is cited with approval in Washington

v. Confederated Tribes of the Colville Indian Reservation, 447 U.S.

134, 152-153 (1980), in support of the Court’s holding that tribes

may impose cigarette taxes on non-Indian purchasers.

16

Thus, as the Court noted in Montana, the tribal inter-

est justifying regulation must be shown to derive from

consensual dealings by the non-Indians with tribal mem-

bers, or conduct that “threatens or has some direct effect

on the political integrity, the economic security, or the

health and welfare of the tribe.” 450 U.S. at 566. The

district court’s analysis of this last principle misses the

mark. The court stated that although a personal injury

obviously affects the health and welfare of the injured

person, it does not affect the health and welfare of the

Tribe, because “an individual is not a tribe.” 560 F.

Supp. at 216-217."

This Court has rejected the notion that tribal interests

are not at issue in cases involving the affairs of individ-

ual Indians. In McClanahan v. Arizona State Tax Com-

mission, 411 U.S. 168, 181 (1973), the State argued that

the imposition of its income taxes on reservation Indians

affected only the interests of individual Indians and not

those of the tribe. The Court noted that

when Congress legislates on Indian matters, it has,

most often, dealt with the tribes as collective en-

tities. But those entities are, after all, composed of

individual Indians, and the legislation confers in-

dividual rights.

18 Of course, a tribe qua tribe has no “health or welfare” except

in a metaphoric sense. People have or lack health or welfare, and

the health and welfare of a government is no more than the collec-

tive health and welfare of its people. Moreover, the Court in Mon-

tana, in making its assertion regarding the health and welfare of

the tribe, cited, inter alia, Williams v. Lee, 358 U.S. 217, 220

(1959), a case which, of course, involved a single transaction and a

single Indian.

In Montana, of course, no Indians were shown to be affected by

the non-Indian conduct that the Tribe sought to regulate. In con-

trast, this case presents a situation in which an Indian has suf-

fered direct, tangible harm from non-Indian conduct. This fact

alone distinguishes this case from Montana and requires a different

result regarding the existence of tribal jurisdiction.

17

This approach applies as well to individual civil actions.

See Babbitt Ford Inc. v. Navajo Indian Tribe, 710 F.2d

587, 594 (9th Cir. 1983). ®

Tribal governmental interests are the sum of the inter-

ests of its people. The opinions in Williams v. Lee, 358

U.S. 217 (1959), and Fisher v. District Court, 424 U.S.

382 (1976), demonstrate this point clearly. The govern-

mental interests that a tribe has in a single injury to a

single tribal member cannot be divorced from the whole

of like occurrences. Viewed as a single incident, such an

occurrence never will give rise to a governmental inter-

est sufficient to justify tribal jurisdiction.** Viewed as a

part of a class of such occurrences, however, personal in-

jury to a tribal member clearly affects the health and

welfare of the tribe, and the tribe may bring its power

to bear to redress the injury and govern the conduct caus-

ing it.*®

In sum, a tribal member has been injured in the course

of his on-reservation activities. He alleges that his injury

results from the negligence of a non-Indian entity resi-

dent on the reservation. He has petitioned the court es-

tablished by his tribe for redress of his injury. The tribal

14 A single instance of negligence would not seem to be an im-

portant governmental interest for a state government either. Yet

the universal existence of tort law demonstrates that reallocation

of losses from those upon whom they fall to those whose negligence

cause the losses is an important governmental] function.

15 This Court is well-acquainted with the concept of the aggrega-

tion of single acts giving rise to governmental control of the whole

class of such acts. In Wickard v. Filburn, 317 U.S. 111 (1942), a

single small farmer sought exemption from federal wheat acreage

allocation laws on the grounds that his conduct, standing alone,

had no conceivable effect on the national economy. The Court re-

jected that contention, noting properly that even though the ac-

tivities of a single small farmer had no perceptible impact on

interstate commerce, the aggregate of the activities of all such

farmers did affect commerce and gave rise to a national power to

regulate those activities. A similar approach is appropriate here.

18

interest is clear. Non-Indian conduct allegedly has af-

fected directly the health and welfare of a tribal member,

and similar conduct, if repeated, threatens the health and

welfare of other tribal members. One cannot say, there-

fore, that the health and welfare of the tribe is unaf-

fected, or that the tribe lacks a governmental interest in

the subject matter. Therefore, a tribe always will have

jurisdiction over a personal injury action brought by an

Indian against a non-Indian that arises on the reserva-

tion.

D. Tribal jurisdiction over the School District is not

barred by sovereign immunity.

The School District’s status as a political subdivision of

the State does not immunize it from tribal jurisdiction.

Just as a tribe is subject to state jurisdiction for its off-

reservation activities, Mescalero Apache Tribe v. Jones,

411 U.S. 145 (1973), so too should a state be subjected

to tribal processes for its on-reservation activities. Cf.

Nevada v. Hall, 440 U.S. 410 (1979).%° Moreover, “even

if the State’s interests were implicated ... , it must be

remembered that tribal sovereignty is dependent on, and

subordinate to, only the Federal Government, not the

States.” Washington, supra, at 154.

Also significant is the fact that Montana has waived

its immunity from suit. Article 2, § 18 of the Montana

16In this regard, the School District’s presence on the reserva-

tion would seem to be more voluntary than is indicated in the peti-

tioner’s brief. The federal government, in the Crow Allotment Act

of 1920, 41 Stat. 751, offered the State the option of acquiring the

“Section 16s” (the traditional “school sections”) on the Reserva-

tion, in return for the State’s assurance that Crow children would

be allowed “to attend the public schools of said state on the same

conditions as the children of white citizens of said state.” Id. The

suggestion that this provision required the State to open schools

on any Section 16 thus acquired is a dubious proposition. In any

event, the State clearly was not compelled to exercise its option,

and the State, therefore, entered the Reservation on a voluntary

basis.

19

Constitution provides that: “The state, counties, cities,

towns, and all other local governmental entities shall

have no immunity from suit for injury to a person or

property.” Although the petitioners urge that Mont. Code

Ann. § 2-9-311 (1983) limits this waiver to the State’s

own courts, neither the Constitution nor, indeed, the stat-

ute itself express such a limitation.’? At least until such

time as State tribunals have addressed the issue defini-

tively, the constitutional waiver should be given its plain

meaning.

II. Assuming that federal courts have jurisdiction over

such matters,'* out of respect for tribal processes and

prerogatives, and in order that wasteful and unneces-

sary litigation be avoided, federal courts should ab-

stain from hearing cases brought by non-Indian chal-

lengers until tribal remedies have been exhausted.

A. Traditional concerns regarding comity and solici-

tude for tribal self-government require that tribal

courts have the first opportunity to resolve ques-

tions as to their jurisdiction.

As was noted by Judge Wright in his opinion below,

736 F.2d 1324-1326, the “proper forum for [determining

the scope of tribal court jurisdiction], at least in the first

instance, is not a federal court but a tribal court.”

Quoting majority opinion at 1323-1324 (brackets in orig-

inal). Several policy objectives support a rule requiring

federal courts to abstain from cases challenging tribal

court jurisdiction until the challengers first exhaust tri-

bal remedies.

17 The decision in Montana v. Peretti, 661 F.2d 756 (9th Cir.

1981), is inapposite. The court there held merely that the con-

stitutional waiver was not sufficiently express to infer a waiver of

the State’s Eleventh Amendment immunity under the strict stand-

ards of Edelman v. Jordan, 415 U.S. 651, 673 (1974).

18 Amici here do not mean to concede the existence of federal

jurisdiction over this matter.

20

In Santa Clara Pueblo v. Martinez, 486 U.S. 49, 70

(1978), this Court took note of the “intrusive effect of

federal judicial review upon tribal self-government” in

finding that the Indian Civil Rights Act, 25 U.S.C.

$§ 1301-1303 (1982), does not authorize federal court

actions against tribal governments for alleged violations

of the Act, save when the relief requested is a writ of

habeas corpus. Similar concerns are present with greater

force when the challenge to tribal action involves not

merely the manner in which tribal power is exercised,

but the very existence of tribal power.”

Before this Court’s decision in Martinez, the lower

federal courts had imposed upon the challengers of tribal

action a requirement that they exhaust their remedies

in tribal forums before bringing their claims to federal

court. See, e.g., Janis v. Wilson, 521 F.2d 724 (8th Cir.

1975); Howlett v. Salish & Kootenai Tribes, 529 F.2d

233 (9th Cir. 1976). The reasons for this requirement

were eminently sound and equally applicable in cases

challenging tribal jurisdiction. First, the exhaustion re-

quirement was intended to strengthen tribal government

and cultural identity, policy goals which are undermined

when federal courts unnecessarily intrude before tribal

processes have run their course. Rosebud Sioux Tribe v.

Driving Hawk, 534 F.2d 98, 100 (8th Cir. 1976).

Second, the exhaustion requirement prevents prema-

ture action by federal courts. In some instances, tribal

19 But for the result in Martinez, the instant case well might be

presented in an entirely different context. Before Martinez, had

the petitioners here appeared in tribal court to challenge the default

judgment and been denied relief, they could have brought an Indian

Civil Rights Act action. Instead, because Martinez denies federal

jurisdiction over such actions, the petitioners assault the existence

of tribal power rather than its exercise. Ironically, a decision sup-

porting tribal government thus becomes a threat to it. Unable to

avail itself of the surgeon’s scalpel previously available under

ICRA, the district court instead reached for the axe provided by

Oliphant and proceeded to lop off the head of the tribal court.

21

courts may interpret tribal law in such a manner as to

render moot the claim a challenger wishes to bring. See

McCurdy v. Steele, 506 F.2d 658, 656 (10th Cir. 1974) .2°

Federal courts not only should defer to tribal interpreta-

tions of tribal law, Tom v. Sutton, 5383 F.2d 1101, 1105

(9th Cir. 1975); Runs After v. Cheyenne River Sioux

Tribe, 437 F. Supp. 1035, 1087 (D. S.D. 1977) ; Conroy

v. Frizzell, 429 F. Supp. 918, 923-24 (D. S.D. 1977), but

also should allow the tribe to decide key questions before

they are brought to federal court.

Finally, the exhaustion requirement was grounded in

notions of comity. “The same principles of comity that

apply in federal court-state court relations are forcefully

applicable in federal court-tribal court relations.” Bru-

nette v. Dann, 417 F. Supp. 1882, 13886 (D. Idaho 1976).

A proper solicitude for tribal processes, therefore, was

evidenced by the courts.

These self-same considerations support the imposition

of an exhaustion requirement in cases such as this one.

Modern federal policy seeks to strengthen tribal self-

government. Martinez, supra, at 59-65; cf. Morton v.

Manceari, 417 U.S. 535, 551 (1974). A key aspect of this

policy is the strengthening of tribal legal institutions.

See Martinez, supra, at 63-64." A fundamental power of

any judicial forum is the ability to determine the extent

of its jurisdiction under applicable law. Cf. Wright,

Law of Federal Courts §16 (1976); and see United

States v. United Mine Workers, 330 U.S. 258 (1947).

Tribal courts are thoroughly familiar with the limita-

2° Some tribal courts, for example, disclaim jurisdiction over ac-

tions involving non-Indians absent consent from the parties. See

F. Cohen, Handbook of Federal Indian Law 254 n.102 (1982 ed.).

21 For example, amici Standing Rock Sioux Tribe, Assiniboine and

Sioux Tribes and Cheyenne River Sioux Tribe have received grants

for revision of tribal codes under the Indian Self-Determination

and Education Assistance Act. Pub. L. 93-638, 88 Stat. 2203

(1975).

22

tions on their jurisdiction imposed by federal law, per-

haps more familiar than any other court. See discussion

infra at Section III.

This Court, of course, has the power to create such a

requirement. The various abstention doctrines developed

by the Court demonstrate this power. Abstention of the

type discussed in Middlesex County Ethics Committee v.

Garden State Bar Association, 457 U.S. 423 (1982) is

most apt.

In Middlesex, the Court discussed the policies under-

lying abstention. Among those policies was the notion

of comity—the belief that the federal system fares best

if the states are left free to perform their functions in

their own way. The notion of comity, moreover, precludes

any presumption that the state will not safeguard rights

existing under federal law.

The idea of comity also is appropriate in federal-tribal

relations. As noted above, federal policy favors strength-

ening tribai government, and fulfillment of the federal

responsibility to Indians is accomplished through the

medium of tribal government. Surely this federal respon-

sibility is met best when the tribes “are left free to

perform their separate functions in their separate ways.”

Cf. Middlesex, supra, at 432.

In Middlesex, the Court identified three inquiries rele-

vant to determining the propriety of abstention. The

first is whether there is an ongoing state proceeding in

which the challenge to state power may be litigated. In

this case, substituting “tribe” for “state”, that require-

ment clearly is met. The Crow Tribal Court proceeding

was under way before the federal action, and should

have been allowed to run its course.

The second inquiry is whether the state proceedings

implicate important state interests. In analogizing to the

present situation, the question would be whether the issue

to be litigated in federal court implicates important tri-

bal interests. Issues involving the extent of tribal juris-

23

diction quite clearly implicate important tribal interests.

Indeed, because the federal court action here attacks the

very existence of tribal jurisdiction, the intrusion on

tribal policy is far more profound that the intrusion on

state interests resulting from concurrent federal and

state proceedings.** Tribal courts should have the oppor-

tunity to resolve such cases in the first instance.

The third inquiry is whether there is an adequate

opportunity in the state proceedings to raise constitu-

tional challenges. To analogize again to this situation,

clearly there exists under Crow Tribal Court procedures

a means by which the jurisdictional issue may be liti-

gated. Indeed, tribes must offer such a procedure under

the Indian Civil Rights Act, 25 U.S.C. § 1302 (1982).

Under ICRA, a tribe may not deny due process of law.

To act without jurisdiction is a fundamental failure of

due process for which a tribe must offer redress. See

Martinez, supra, at 65.

In view of the federal policy of strengthening tribal

government and tribal courts, and in order to avoid need-

less litigation, federal courts should take jurisdiction over

challenges to tribal civil adjudicatory jurisdiction, if at

all, only when the challengers have exhausted tribal rem-

edies. These cases, after all, affect the tribes more pro-

foundly than they affect private parties, and the tribal

courts deserve the opportunity to have their views made

known before the intrusive power of the federal govern-

ment is brought to bear.

B. The conduct of the petitioners in this matter ex-

emplifies the unhappy consequences following from

the absence of a requirement that challengers of

tribal jurisdiction first exhaust their tribal remedies.

Assuming, arguendo, that the Crow Tribe has “thrown

down the gauntlet,” Pet. Br. at 22, then it is the peti-

22 An attack of this sort on state jurisdiction would be forbidden

by the Anti-Injunction Act. 28 U.S.C. § 2283 (1982).

24

tioners’ failure to show even a minimal degree of respect

for tribal processes which has forced this unfortunate

confrontation. Had the petitioners properly answered the

summons and complaint served upon them, no default

judgment would have been entered. Had they moved to

set aside the default judgment in accordance with Rule

17(d) of the Crow Rules of Civil Procedure before re-

pairing to federal court, the case might never have come

this far. Had they appeared specially to challenge juris-

diction in accordance with Crow Rule 7, the case might

have ended at that point. Had they defended on the

merits of the negligence claim, a judgment in their favor

might have resulted. Had they presented their argu-

ments regarding the immunity from seizure of School

District property to the Tribal Court, that court may

well have formulated a different method of judgment

execution, had a trial on the merits resulted in a judg-

ment against the District at all.

But the School District and its insurer, in a regrettable

display of disdain for legitimate tribal processes, at-

tempted to circumvent those processes and seek sanctuary

in the federal courts. What once was a garden-variety

civil action now has mushroomed into a case of consti-

tutional dimension threatening tribal powers the exist-

ence of which has been acknowledged by federal author-

ities for more than a century. Three federal courts will

have passed on the case before litigation on the merits

has occurred. This case demonstrates, as could no other,

the pernicious consequences and needless confrontation

which results when non-Indian challengers to tribal au-

thority are allowed to circumvent legitimate tribal proc-

esses established for the resolution of such questions.

Imagine the protests which would have come from Mon-

tana officials had the Indian parties in Kennerly v. Dis-

trict Court, 400 U.S. 423 (1971) or Fisher v. District

Court, 424 US. 382 (1976), taken their challenges to

state jurisdiction directly to federal district court with-

out first abiding by state processes. In each case, the

25

Montana courts were found by this Court not to have

jurisdiction, yet the Indian parties litigated the jurisdic-

tional issues in Montana courts. Tribal courts are en-

titled to similar respect.

III. Tribal courts are modern judicial tribunals applying

familiar rules of law and procedure and wholly capable

of applying the complex federal law regarding tribal

jurisdiction.

“Indian tribal court systems have become increasingly

sophisticated and resemble in many respects their state

counterparts.” Cf. Oliphant v. Suquamish Indian Tribe,

435 U.S. 191, 211-212 (1978). Indeed, at the urging and

with the assistance of the federal government,” tribal

courts, laws and procedures, have developed to the point

that they often are indistinguishable from lower state

tribunals. Tribal Courts have established rules of pro-

cedure not unlike those of state courts, and have dis-

played a particular facility for analyzing federal law

regarding trihal jurisdiction.

Thus, in Crow Creek Sioux Tribe v. Buum, 10 Indian

L. Rep. 6031 (Intertribal Ct. App. 1983), the court con-

ducted a sophisticated analysis of the jurisdiction of tri-

bal courts in the areas of civil and criminal contempt.

Holding that tribes may hold non-Indians in civil, but

not criminal, contempt of court, the court reversed the

lower court’s entry of a contempt order on the grounds

that the tribal law authorizing contempt sanctions vio-

lated the Indian Civil Rights Act.

In North Dakota ex rel. Wefald v. Kelly, 10 Indian L.

Rep. 6059 (Standing Rock Sx. Tr. Ct. 1983), the court

reviewed federal law and found tribal jurisdiction over

an action brought by the State to collect on a debt owed

by a tribal member. In Fisher v. District Court, 424

U.S. 382 (1976), this Court reversed the Montana Su-

preme Court and agreed with an opinion of the Appellate

23 See note 21, supra.

26

Court of the Northern Cheyenne Tribe that the Tribal

court had exclusive jurisdiction of a child custody matter

involving only Indians.

One tribal decision of note already has been brought

to the Court’s attention. In Blackfeet Tribal Business

Council v. East Glacier Water & Sewer District, 11 In-

dian L. Rep. 6021 (Blackfeet Tr. Ct. 1984), the court

found tribal jurisdiction over a non-Indian public corpor-

ation. Despite the suggestions of amici Glacier County

and East Glacier Water & Sewer District, Br. Amicus

Curiae in Support of Petition (filed Oct. 26, 1984), the

Blackfeet Tribal Court is not a lawless marauder run-

ning roughshod over defenseless non-Indians in violation

of its own charter. Indeed, the Tribal Court’s opinion

is learned and reasoned, applying the relevant precedents

and grounding its decision on sound analysis and public

policy.

The court first noted that jurisdiction exisis, if at all,

under the grant of power to the court contained in the

Tribal Constitution. It then noted the existence of rele-

vant federal precedent but added, correctly it would seem,

that tribal forums are the ultimate arbiters of the mean-

ing of tribal law. The court then cited a federal district

court decision, United States ex rel. Rollingson v. Black-

feet Tribe, 244 F. Supp. 474 (D. Mont. 1965), in which

the feleral court ruled that a dispute between a non-

Indian and a tribal judge was within the execlusive juris-

diction of the Blackfeet Tribal Court. The couit went on

to note relevant precedents from this Court, including

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

held that the Blackfeet Tribal Court had exclusive juris-

diction over a debt action arising on the Reservation and

involving both Indian and non-Indian parties.** The court

24 The Sewer District’s position thus takes on a special irony.

If it wants to collect by judicial action the debts owed it by Black-

feet Tribal members, the decision in Kennerly requires it to repair

to the very court of whose jurisdiction it now makes complaint.

27

then noted the historic practice of non-Indians using the

Tribal Court, and identified sound policy reasons favoring

the existence of tribal jurisdiction.

Whether or not the Blackfeet court ultimately is found

to be correct, and amici assert that it was correct, these

are not the lunatic ravings of a judge unable to live

within the legal limits of his power. Rather, it is an ex-

ample of sound scholarship and reason from an Indian

jurist faced with difficult issues of tribal and federal law.

The tribal court procedures found in modern tribal

codes are fully adequate to assure fair, reasonable and

accurate adjudication.» Indeed, tribal procedures often

are drawn from the procedures of state and federal

courts. These codes contain rules governing pre-trial pro-

cedures, trials and judgments. £.g., Title II, Standing

Rock Sioux Tribe Code of Justice; Crow Rules of Civil

Procedure. Although usually more simple than the com-

plex rules governing procedure in state and federal courts,

tribal rules have as their guiding standards the same

principles as those applicable to federal and state rules.

Thus, the Devils Lake Sioux Tribe Law and Order Code

provides, at Chapter I, Title B, § 104(2) (a) that “[t]his

Code shal! be liberally construed to effect its purpose and

to promote justice.” Compare Fed. R. Civ. P. 1.

Except where a specific tribal policy requires otherwise,

the substantive rules of tribal law are likely to be much

the same as those of the states. Indeed, many tribal

courts apply the substantive law of the state in which

they are located in the absence of countervailing tribal or

federal law. E.g., 25 C.F.R. § 11.23(c) (1984) (“[Matters

not covered by tribal or federal law are decided] accord-

ing to the laws of the State in which the matter in dis-

25 The portions of the Tribal Codes of amici, Assiniboine and

Sioux Tribes, Deviis Lake Sioux Tribe and Standing Rock Sioux

Tribe, which deal with courts and civil procedure have been lodged

with the Clerk of the Court and served on counsel for the parties.

28

pute may lie.”); Comprehensive Code of Justice of the

Assiniboine and Sioux Tribes § 501(d) (“Where appro-

priate, the Court may... be guided by the statutes, com-

mon law or rules of decision of the States... .”). See

also F. Cohen, Handbook of Federal Indian Law 334-335

(1982 ed.).

Finally, note should be taken of the increasing capa-

bilities of the Indian judiciary. A variety of training

programs for tribal judges are regularly conducted on

every imaginable topic. The tremendous upsurge in the

number of Indians who have law degrees and their desire

to serve in tribal judiciaries guarantee continued im-

provement in tribal court functions.

Modernized tribal codes, increased training for tribal

judges and the influx of Indian people having law de-

grees promise that tribal courts will continue their rapid

progress. The quality of justice they now dispense cer-

tainly meets the constitutional and statutory norms, and

will continue to improve. This Court should allow this

evolution to continue and take its natural course.

29

CONCLUSION

For the foregoing reasons, the mandate of the Court of

Appeals should be affirmed.

* Attorney of Record

Respectfully submitted,

ARTHUR LAZARUS, JR., P.C.

W. RICHARD WEST, JR.*

B. KEVIN GOVER

FRIED, FRANK, HARRIS, SHRIVER

& KAMPELMAN

600 New Hampshire Avenue, N.W.

Suite 1000

Washington, D.C. 20037

(202) 342-3500

Counsel for Cheyenne River Sioux

Tribe, Nez Perce Tribe, Pueblo of

Laguna, Seneca Nation of Indians,

Association on American Indian

Affairs, Inc., American Indian

Lawyer Training Program, Inc.,

National American Indian Court

Judges Association, National

Indian Justice Center and

Northwest Intertribal Court

Association

REID PEYTON CHAMBERS

KEVIN A. GRIFFIN

SONOSKY, CHAMBERS & SACHSE

1050 31st Street, N.W.

Washington, D.C. 20007

(202) 342-9131

Counsel for Assiniboine and Sioux

Tribes of the Fort Peck Reserva-

tion, Devils Lake Sioux Tribe and

Standing Rock Sioux Tribe

GEORGE E. FETTINGER

LESLIE SECKLER

FETTINGER & BLOOM

414 Tenth Street, Suite 201

Alamogordo, NM 88310

(505) 437-6620

Counsel for the Mescalern Apache

Tribe