Opposition Brief — Estate of Red Wolf v. Burlington Northern Railroad

ne see

Supreme Court, U.S.

ren FILED

ee 'APR 0 4 9m

No. 99-1521

CLERK

IN THE

SUPREME COURT OF THE UNiTED STATES

ESTATES OF RED WOLF AND BULL TAIL,

VALERIE RED WOLF, GLADYS RED WOLF,

RANDY RED WOLF, DORRIE BULL TAIL

and DEWEY BULL TAIL,

Petitioners,

Vv.

BURLINGTON NORTHERN RAILROAD COMPANY,

Respondent.

On PETITION For Writ OF CERTIORARI

To THE UNITED STATES CourT OF APPEALS

For THE NINTH CIRCUIT

RESPONDENT CROW TRIBE'S

BRIEF IN SUPPORT

RoBeERT S. PELCYGER

JOHN FreperIcks III *

R E . t | V E D FREDERICKS, PELCYGER & HESTER, LLC

1075 S. BouLpDER Rp., Ste. 305

APR S- 9000 LouIsvILLE, CO 80027

(303) 673-9600

F THE CLERK

ote COURT, U.S. Counsel for Respondent

Crow Tribe of Indians

* Counsel of Record

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

QUESTIONS PRESENTED

Whether the Crow Tribal Courts’ have jurisdiction

over a wrongful death action brought by injured Crow

tribal members when the cause of action arises on the

Crow Indian Reservation, on a railroad right-of-way

which crosses Crow trust land.

Whether tribal consent to state court jurisdiction

pursuant to Public Law 280, as amended, 25 U.S.C.

§ 1326, is mandatory before a tribal member may be

excluded from seeking redress in tribal court for a

reservation-based cause of action.

Whether the parties are required to exhaust their tribal

court remedies when a civil cause of action involving

tribal members arises on the reservation and there is

a colorable claim of tribal jurisdiction.

TABLE OF CONTENTS

QUESTIONS PIRESSGNEMID 606 kb > so bs ee es i

TABLE OF CUINTERNGS 664654 (65 5 ll

TABLE OF AUTHIQREROMED 6.065 5454454455434 iv

INTRODUCTIONS «6s 60k eee ee ee ]

CITATION OF OPINION BELOW ............. 1

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, ORDINANCES AND REGULATIONS

INVOLVED IN THRE CARO 6 oe oe ees 1

I. THER CORPee Be ok ek eee 2

II. THE CROW LAW AND ORDER

85 Pe ore ee ere 3

STATEMENT OF THE CAMB ... «cocci sucess 8

ARGUMENT . o.oo 30556 ee ee 9

I. The Court Should Grant the Petition

for Certiorari Because the Ninth

Circuit Has Decided an Important

Question of Federal Law in a Way

Which conflicts with Prior Decisions

of Gin GC a6 ee ee es 10

A. Burlington Northern’s Right-of-

Way Is Not Equivalent to Fee

See errr ie eee ee 10

B. The Holding in Strate Cannot

Be Extended to Civil Actions in

Which Tribal Members Are

WE es ee ge a 13

iat The Ninth Circuit’s Decision

Conflicts with Acts of Congress

and Federal Policy .......... 15

D. The Ninth Circuit’s Decision

Excusing the Parties from

Exhausting Their Tribal Court

Remedies Conflicts with this

Court’s Previous Deceisions in

National Farmers Union

Insurance Co. v. Crow Tribe,

and Iowa Mutual Insurance Co.

eT) 19

II. This Court Should Grant Certiorari

Under Rule 10(a) Because the Ninth

Circuit’s Decision Conflicts With

Decisions of Other Court’s Of Appeal . . 22

Il. This Court Should Grant the Petition

for Certiorari Because the Ninth

Circuit Has Decided an Important

Question of Federal Law That Has Not

Been, But Should Be, Settled By This

ES 0 he Orr eS ew be des 25

Se 26

iil

TABLE OF AUTHORITIES

Cases

A-1 Contractors v. Strate, et al.,

76 F.3d 930 (8th Cir. 1996), aff'd,

Sane Ue. SOO PPT oi ee i ees

Babbitt Ford, Inc. v. Navajo Indian Tribe,

710 F.2d 587 (9th Cir. 1983),

cert. denied, 466 U.S. 926 (1984) .....

Burlington Northern R. Co. v. Red Wolf, et al.,

196 F.3d 1059 (9th Cir. 1999) .......

El Paso Natural Gas Co. v. Neztsosie,

BOR se 2), re

Hinshaw v. Mahler,

42 F.3d 1178 (9th Cir. 1994),

cert. denied, 513 U.S. 988 (1994) .....

Iowa Mutual Insurance Co. v. LaPlante,

a ee Ls rr ae

Kennerly v. District Court,

RI 8S, 7s) es are

Kerr-McGee Corp. v. Farley,

115 F.3d 1498 (10th Cir. 1997),

cert. denied, 522 U.S. 1090 (1998) ....

McClanahan v. Arizona Tax Commission,

WEE Us HRS STSE ok

1V

Merrion v. Jicarilla Apache Tribe,

455 U.S. 130 (1982) ............. 14, 23, 24

Montana v. Blackfeet Tribe,

CFL US. Fe Cee on ke EP eG eee ce. 11

Montana v. U.S. EPA,

137 F.3d 1135 (9th Cir. 1998),

cert. denied, 525 U.S. 921 (1998) ....... 25-26

Montana v. United States,

450 U.S. 544 (1981) ................ 10, 23

National Farmers Union Insurance Co. v. Crow Tribe,

471 U.S. 845 (1985) ................ passim

New Mexico v. Mescalero Apache Tribe,

462 U.S. 324 (1983) ................ 13-14

Oneida v. Oneida Indian Nation,

470 U.S. 226 (1985) ................ 10, 11

Santa Clara Pueblo v. Martinez,

436 U.S. 49 (1978) ................ passim

South Dakota v. Bourland,

508 U.S. 679 (1993) ................... 11

Strate v. A-1 Contractors, et al.,

sad U.S. SSB CIPS... 6 ke vn ke eke en passim

Three Affiliated Tribes v. Wold Engineering,

OBr U.%: Tee Clee ks ce Xe a oc 18

V

U.S. v. Santa Fe Pacific Railroad,

314 U3, Botte) ca 2 oh ee 10, 11

U.S. v. Soldana,

246 U.S. F590 CIGERD sds ew ee ween 10, 11, 12

Williams v. Lee,

Soe Ue. 201 Ge 3s Oe re eee eee passim

Wilson v. Marchington,

127 F.3d 805 (9th Cir. 1997),

cert. denied, 523 U.S. 1074 (1998) ......... 26

Statutes

25 U.S.0..9 19 20s 2 eee eee ee i, 18

SOUSA. OF «0 k25S oe eee eee eee 16

Crow Treaty of 1868, 15 Stat. 649 (May 7, 1868) . 1, 2,9

Indian Tribal Justice Act of 1993, § 3601 ef seq. .. passim

Other

Charles F. Wilkinson & John M. Volkman,

Judicial Review of Indian Treaty Abrogation:

“As Long as Water Flows or Grass Grows

Upon the Earth”-How Long a Time is that?,

G3 Cal.-L.. Raw. S00 Clare? 2 ns ose ee es 11

Crow Tribal Law and Order Code............ es

vl

Exec. Order No. 13084, 63 Fed. Reg. 27655

es tee ea oe ee ee 17

Felix S. Cohen’s Handbook of Federal Indian Law,

SR oe ce ae ere 24

H.R. REP. No. 205, 103RD CONG. 1ST SESS. (1993) ....... 17

S.REP. NO. 88, 103RD CONG. IST SESS. 8 (1993) ........ 16

Vii

INTRODUCTION

The Respondent Crow Tribe of Indians files this brief

in support of the Petition for Certiorari filed by the Estates of

Red Wolf and Bull Tail, et al. (hereinafter referred to as the

“Red Wolf Estates”).' This brief is filed in accordance with

the requirements of Supreme Court Rules 12.6 and 24.2.

CITATION OF OPINION BELOW

The opinion of the court of appeals, as amended, is

reported and cited as Burlington Northern R. Co. v. Red

Wolf, et al., 196 F.3d 1059 (9th Cir. 1999).

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, ORDINANCES AND REGULATIONS

INVOLVED IN THIS CASE.

In addition to the statutes cited in the Appendix to the

Petition for Certiorari filed by the Red Wolf Estates, this case

involves sections 1 and 2 of the Crow Treaty of 1868, 15 Stat.

| The Crow Tribe’s motion to intervene in the district

court action was denied on the same day that the district court

entered judgment in favor of Burlington Northern. The Tribe

appealed the denial of its motion to intervene, and filed a protective

notice of appeal from the district court’s judgment on the merits, in

accordance with accepted Ninth Circuit practice. The Ninth Circuit

consolidated the Crow Tribe’s appeals with the Red Wolf estates’

appeal.

649 (May 7, 1868), and relevant portions of the Crow Tribal

Law and Order Code.

I. THE CROW TREATY

The relevant provisions of Articles 1 and 2 of the

Crow treaty of 1868 provide as follows:

Article 1. From this day forward peace

between the parties to this treaty shall forever

i continue. The Government of the United

States desires peace, and its honor is hereby

pledged to keep it. The Indians desire peace,

and they hereby pledge their honor to maintain

it. If bad men among the whites or among

other people, subject to the authority of the

United States, shall commit any wrong upon

the person or property of the Indians, the

United States will, upon proof made to the

agent and forwarded to the Commissioner of

Indian Affairs at Washington City, proceed at

once to cause the offender to be arrested and

punished according to the laws of the United

States, and also reimburse the injured person

for the loss sustained.

Article 2. The United States agrees that

the following district of country, to wit:

commencing where the 107" degree of

longitude west of Greenwich crosses the south

boundary of Montana Territory; thence north

along said 107" meridian to the mid-channel of

the Yellowstone River; thence up said mid-

2

channel of the Yellowstone to the point where

it crosses the said southern boundary of

Montana, being the 15" degree of north

latitude; and thence east along said parallel of

latitude to the place of beginning, shall be, and

the same is, set apart for the absolute and

undisturbed use and occupation of the Indians

herein named, and for such other friendly

tribes or individual Indians as from time to

time they may be willing, with the consent of

the United States, to admit amongst them; and

the United States now solemnly agrees that no

persons, except those herein designated and

authorized so to do, and except such officers,

agents, and employees of the Government as

may be authorized to enter upon Indian

reservations in discharge of duties enjoined by

law, shall ever be permitted to pass over, settle

upon, or reside in the territory described in

this article for the use of said Indians, and

henceforth they will, and do hereby, relinquish

all title, claims, or rights in and to any portion

of the territory of the United States, except

such as is embraced within the limits

aforesaid.

Il. THE CROW LAW AND ORDER CODE

The relevant provisions of the federally authorized and

approved Crow Law and Order Code establishing the Crow

Tribal Court and Court of Appeals state as follows:

BS RT AL Rint Baie ar er Lae UI AS

TITLE 3.

CHAPTER I.

3-1-101.

(1)

(2)

3-1-103.

(1)

(2)

ESTABLISHMENT OF

TRIBAL COURTS AND

TRIBAL JURISDICTION

ESTABLISHMENT OF

CROW TRIBAL COURTS

Crow Tribal Court.

There is hereby established the

“Crow Tribal Court.”

The Crow Tribal Court shall be

a court of general civil and

criminal jurisdiction and shall

hear appeals from final

decisions of:

(a) Tribal administrative bodies.

(b) The “small claims”

session of the Crow

Tribal Court.

Crow Court of Appeals.

There is hereby established the

“Crow Court of Appeals.”

The Crow Court of Appeals

shall have original and

exclusive jurisdiction to hear all

appeals from final judgments

4

and/or orders of the Crow

Tribal Court and the Crow

Juvenile Court.

CHAPTER II. JURISDICTION OF

CROW TRIBAL

COURTS

3-2-201. Policy.

It is the intention of the Crow Tribe of

Indians to exercise that jurisdictional authority

which has not otherwise been enclosed by acts

of the United States Congress and failure to

legislate in a particular area shall not be

deemed a waiver of that authority. The

jurisdiction of the Crow Tribal Courts shall be

used to insure due process and equal protection

of the law for all persons residing within the

exterior and entering the boundaries of the

Crow Indian Reservation.

3-2-202. Jurisdiction-Territorial.

The jurisdiction of the Crow Tribal

Courts shall extend to any and all lands within

the exterior boundaries of the Crow Indian

Reservation as the same may exist from time

to time including all easements, rights-of-way,

and fee patented lands within such boundaries.

3-2-203. Jurisdiction—Personal.

(1) The Crow Tribal Court shall

have jurisdiction over all

5

CMe Le

(2)

3-2-204.

(1)

(2)

persons who reside, enter,

and/or transact business within

the exterior boundaries of the

Crow Indian Reservation,

provided that the Court shall

not exercise’ criminal

jurisdiction over non-Indians.

For purposes of jurisdiction

“persons” shall include

individuals, businesses,

partnerships, associations,

cooperatives, and corporations.

Jurisdiction-Property.

The Crow Tribal Court shall

have jurisdiction over ll

property, real and personal,

‘which is located within the

exterior boundaries of the Crow

Indian Reservation. Such

jurisdiction shall extend to the

determination of ownership

rights in property, interests in

property, and the application of

property to the satisfaction of a

judgment for which the owner

-of the property is deemed to be

liable. :

The jurisdiction of the Crow

Tribal Courts shall be limited

only by federal law; provided

however, that the Crow Tribal

6

3-2-205.

Court shall have jurisdiction to

render money judgments

against persons, businesses,

partnerships, corporations, and

cooperative associations who

are not subject personally to the

jurisdiction of the court only if

the action is commenced by an

attachment of the defendant’s

' property which is_ located

within the exterior boundaries

of the Crow Indian

Reservation. Unless ~ the

defendant subjects himself to

the jurisdiction of the court,

any judgment in an action

commenced by the attachment

of property belonging to a party

not personally subject to the

jurisdiction of the court may be

executed only against the

property actually attached.

Jurisdiction—Subject Matter.

The Crow Tribal Courts shall have

jurisdiction over all civil causes of action

arising within the exterior boundaries of the

Crow Indian Reservation and over all criminal

offenses which are enumerated in Title 8 of the

Crow Tribal Code and which are committed

within the exterior boundaries of the Crow

Indian Reservation.

STATEMENT OF THE CASE

In accordance with Supreme Court Rule 24.2, the

Respondent Crow Tribe agrees with Petitioners’ Statement of

the Case, with the following clarifications.

First, the reservation land upon which the train

accident occurred is not owned by the Crow Tribe in fee

simple absolute. Instead, the land is tribal land, legal title to

which is held in trust by the United States for the benefit of

the Crow Tribe. Indian land of this type is commonly

referred to as tribal trust land. The train accident which killed

members of the Red Wolf and Bull Tail families occurred at

the intersection where a tribal road crosses Burlington

Northern’s railroad tracks, within the 150 foot right-of-way

granted by Congress to Burlington Northern’s predecessor in

interest. Thus, the accident occurred on tribal trust land, not

land “owned in fee simple absolute title by the Crow Tribe.”

(See Petition for Certiorari at p. 8.)

Second, the Crow Tribal Law and Order Code,

adopted pursuant to federal law and the Crow Tribe’s

federally approved Constitution, expressly- provides for the

exercise of civil jurisdiction over an action which occurs on

the reservation and results in the death of a tribal member.

(Crow Law and Order Code, §§ 3-2-202 - 203, 3-2-205.)

Third, the Crow Indian Reservation, where the train

accident occurred, was established by the Treaty of 1868

between the Crow Tribe and the United States. The treaty

was a treaty of peace between the Crow Tribe and the United

States under which the Tribe relinquished its title to millions

of acres of land to the United States. In return, the United

States promised that the remaining Crow Reservation would

be “set apart for the absolute and undisturbed use and

8

occupation” of the Crow Indians. (Treaty with the Crows,

Articles 1, 2.) Like the Navajo treaty of 1868, Articles 1 and

2 of the Crow treaty reserved to the Crows a portion of their

traditional territory. Thus, “[i]n return for their promises to

keep peace, this treaty ‘set apart’ for ‘their permanent home’

a portion of what had been their native country.”

McClanahan v. Arizona Tax Commission, 411 U.S. 164, 174

(1973); quoting Williams v. Lee, 358 U.S. 217, 223 (1959).

This Court has held that this treaty language established the

reservation “within the exclusive sovereignty of the Tribe

under general federal supervision.” McClanahan, 411 U.S.

at 175; Williams, 358 U.S. at 222-23. The rights which the

Crow Tribe reserved under their treaty lie at the heart of this

case.

ARGUMENT

This case presents an opportunity for the Court to

clarify its holding in Strate v. A-1 Contractors, et al., 520

U.S. 438 (1997), and to harmonize its decision in Strate in

order to avoid conflict with its other Indian law decisions,

most notably, Williams v. Lee, supra. This case also presents

the opportunity for the Supreme Court to clarify the

continuing vitality of the tribal court exhaustion doctrine first

enunciated in National Farmers Union Insurance Co. v. Crow

Tribe, 471 U.S. 845 (1985). This Court should grant the

Petition for Certiorari because the Ninth Circuit’s

interpretation of Strate conflicts not only with other federal

courts of appeals, but with controlling decisions of this Court.

Moreover, the Ninth Circuit decision divests the tribal court

of jurisdiction over actions which involve injured tribal

members, an important question of federal law that has not

been, but should be, settled by this Court. Review on a

j

2

i

i

Petition for Certiorari is therefore appropriate under Supreme

Court Rule 10(a) and (c).

I. The Court Should Grant the Petition for Certiorari

Because the Ninth Circuit Has Decided an

Important Question of Federal Law in a Way

Which Conflicts with Prior Decisions of this Court.

Relying on Strate, the Ninth Circuit held that the Crow

tribal courts do not have jurisdiction to adjudicate the Red

Wolf Estates’ action against Burlington Northern because the

railroad right-of-way within which the accident occurred was

thé equivalent of fee land under Strate, such that the main rule

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

196. F.3d at 1063. The Ninth Circuit then analyzed the two

Montana exceptions to the main rule, and held that neither

exception justified the exercise of tribal court jurisdiction. /d.

at 1064-65. The Ninth Circuit’s decision not only

misconstrues Strate and Montana, it construes Strate in a way

which brings it into direct conflict with other decisions of this

Court.

A. Burlington Northern’s Right-of-way

Is Not Equivalent to Fee Land.

First, the Ninth Circuit’s holding that Burlington

Northern’s right-of-way was the equivalent to fee land under

this Court’s analysis in Strate conflicts with the Court’s earlier

decisions in Oneida v. Oneida Indian Nation, 470 U.S. 226,

247-48 (1985), U.S. v. Soldana, 246 U.S. 530 (1918), and

U.S. v. Santa Fe Pacific Railroad, 314 U.S. 339 (1941). This

Court has consistently held that, because of the unique trust

relationship between the United States and Indian tribes,

congressional intent to extinguish Indian property or treaty

rights must be “plain and unambiguous” and “will not be

10

lightly implied.” Oneida, 470 U.S. at 247-48; Santa Fe

Pacific, 314 U.S. at 346, 354; South Dakota v. Bourland, 508

U.S. 679, 687 (1993).” In Soldana, this Court held that the

exact same right-of-way at issue in the case below did not

extinguish the Crow Tribe’s title and underlying property

interest. 246 U.S. at 532-33. In Santa Fe, this Court held

that the extinguishment of Indian title to their land is a matter

over which Congress, not the courts, has supreme power.

314 U.S. at 347; accord, Oneida, 470 U.S. at 233-34.

Nothing in the congressional statute which granted

Burlington Northern a right-of-way across the Crow

Reservation indicates that it was intended to affect the Crow’s

underlying property interest in any way, shape or form. On

the contrary, two sections of the statute granting the right-of-

way support the opposite proposition, that Congress intended

to protect the Tribe’s underlying interest in the land over

which the railroad was to be constructed. Section 3 of the Act

provided that the construction and operation of the railroad

“shall be conducted with due regard for the rights of the

Indians. . . .” Section 5 of the Act declared that the grant of

the right-of-way was on the condition that the railroad “will

neither aid, advise, nor assist in any effort looking towards

the changing or extinguishing the present tenure of the Indians

in their land, and will not attempt to secure from the Indian

> There are a number of historical and moral reasons why

the canons of construction employed by this Court require Indian

treaties to be interpreted in favor of Indian Tribes. See e.g.,

McClanahan, 411 U.S. at 174-175; Montana v. Blackfeet Tribe,

471 U.S. 759, 766 (1985); see also, Charles F. Wilkinsun & John

M. Volkman, Judicial Review of Indian Treaty Abrogation: “As

Long as Water Flows or Grass Grows Upon the Earth”-How Long

a Time is that?, 63 Cal. L. Rev. 601, 610-17 (1975).

11

Pt Aan thai i ORAL, Aa ats ance

De etna bas DM

ELI 1 bic eas AS IER EI es

tribes any further grant of land or its occupancy than is

hereinabove provided.” Both of these sections were relied

upon by this Court in Soldana to conclude that the

congressional grant of a railroad right-of-way across the

reservation did not affect the Crow Tribe’s property rights.

Soldana, 246 U.S. at 532.

Nothing in Strate even suggests that its holding is so

broad as to encompass railroad or other commercial rights-of-

way which cross Indian reservation land. The key factors in

Strate which led the Court to conclude that the state highway

was the equivalent of fee land were that the right-of-way was

granted to the state, open to the public, traffic on the highway

was subject to state control, and the tribe reserved no

“gatekeeping” right. Strate, 520 U.S. at 454: see Kerr-

McGee Corp. v. Farley, 115 F.3d 1498, 1506 n.4 (10th Cir.

1997), cert. denied, 522 U.S. 1090 (1998). The right-of-way

at issue in this case is markedly different. There is no grant

of any interest to the state of Montana. Burlington Northern’s

right-of-way is not open to the public, and maintenance and

operation of the right-of-way is not subject to state control.

Furthermore, both Congress and the Crow Tribe reserved

important rights as conditions to the maintenance and

Operation of the right-of-way by the railroad. Those

conditions, set forth in sections 3 and 5 of the right-of-way

Act cited above, required Burlington Northern to operate the

railroad with “due regard for the rights of the Indians” and to

respect the “present tenure of the Indians in their land.” In

Short, the factors which led this Court to equate a state

highway to alienated fee land are simpiy not present in this

case. The Ninth Circuit’s extension of the Strate analysis to

apply to a railroad right-of-way conflicts with the Court’s

other decisions which protect the continuing property interest

of Indian tribes notwithstanding the grant of a conditional

right-of-way across tribal land.

12

This Court’s recent decision in El Paso Natural Gas

Co. v. Neztsosie,- 526 U.S. 473 (1999), supports the

proposition that a right-of-way which is not open to the public

or granted to the state is not the equivalent offée land. In E}

Paso, this Court rejected the argument that Strate foreclosed.

tribal court jurisdiction over nuclear tort claims arising on

tribal land leased to nonmembers. The Court distinguished

Strate as a case dealing with “claims against nonmembers

arising on state highways, [which] expressed no view on the

governing law or proper forum when an accident occurs on a

tribal road within a reservation. . . . By contrast, the events

in question here occurred on tribal lands.” 526 U.S. at 483

(citations omitted). Significantly then, the Court recognized

that the land remained tribal land even though it was leased to

a nonmember. As a practical and legal matter, there is no

distinction between a congressionally granted right-of-way to

a private entity such as a railroad, and a congressionally

authorized lease of tribal land to a non-Indian mining

company. The Ninth Circuit's decision to extend the analysis

in Strate beyond state highways thus conflicts with this

Court’s subsequent decision in E] Paso. Certiorari should be

granted in order to resolve the conflict.

B. The Holding in Strate Cannot Be

Extended to Civil Actions in Which

Tribal Members Are Parties.

The Ninth Circuit's ultimate conclusion, that tribal

courts lack jurisdiction to adjudicate reservation-based tort

claims brought by injured tribal members, is an overly broad

interpretation of Strate which, if it stands, would bring Strate

into conflict with this Court’s earlier decisions recognizing

that tribal courts have jurisdiction to adjudicate reservation-

based civil disputes between tribal members and nonmembers.

In particular, the Ninth Circuit’s characterization of Strate

13

_————

Rhea

arma De dy Al rie

Ce Te ote eae wa a eee

Prem nes

pon aris wrt at LA AOC SE ty AON HEC a dea Ka

conflicts with Williams v. Lee, supra; Santa Clara Pueblo v.

Martinez, 436 U.S. 49 (1978); New Mexico v. Mescalero

Apache Tribe, 462 U.S. 324 (1983); and Iowa Mutual

Insurance Co. v. LaPlante, 480 U.S. 9 (1987).

In Williams v. Lee, this Court held that tribal courts,

not state courts, have jurisdiction over a dispute between a

tribal member and a non-Indian over the collection of a debt

on the reservation. Underlying the Court’s holding in

Williams was the notion that the treaty which created the

Navajo Reservation established the reservation within the

exclusive sovereignty of the tribe, and that the “treaty

embodied ‘the understanding that the internal affairs of the

Indians remained exclusively within the jurisdiction of

whatever tribal government existed.” Williams, 358 U.S. at

221-22 (emphasis added). The Court then clarified that it was

“immaterial that the respondent was a non-Indian. He was on

the reservation and the transaction with the tribal member

took place there.” /d. at 223. Williams, then, held that

exclusive jurisdiction over an on-reservation dispute involving

a tribal member and a nonmember was vested in the tribal -

court, and if this jurisdiction was to be limited, it was for

Congress to do so. /d.; accord, Santa Clara Pueblo, 436 U.S.

at 60; Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 149

(1982).

The Ninth Circuit should have followed Williams.

Nothing in this Court’s decision in Strate supports the notion

that its holding should be extended to cases which involve

injured tribal members. Strate involved a case between two

nontribal members arising from a car accident on a state

highway. Unlike Williams, no tribal members were parties

to the dispute. As the Court in Strate noted, the dispute was

“distinctly non-tribal in nature. It arose between two non-

Indians involved in a run of the mill highway accident,” and

14

“the Tribes were strangers to the accident.” Strate, 520 U.S.

at 457. The Ninth Circuit ignored these distinguishing

factors, and extended Strate to apply to reservation-based

claims brought by injured tribal members, in direct conflict

with Williams, Mescalero, and other cases in this Court

recognizing tribal authority to adjudicate disputes between

tribal members and nonmembers.’ This Court should grant

certiorari to clarify that the ruling in Strate does not apply to

reservation-based civil actions brought by injured tribal

members.

oe The Ninth Circuit’s Decision

Conflicts with Acts of Congress and

Federal Policy.

Not only does the Ninth Circuit’s decision conflict

with previous decisions of this Court, it conflicts as well with

congressional and executive branch policy which recognizes

and upholds tribal sovereignty in general, and strong tribal

courts in particular. Congress has recently spoken on the

issue of tribal court jurisdiction over non-Indians, and it is the

obligation of the judicial branch to respect and defer to

congressional policy in this area. Santa Clara, 436 U.S. at 60

(“a proper respect both for tribal sovereignty itself and for the

plenary authority of Congress in this area cautions that we

tread lightly in the absence of clear indications of legislative

intent”).

> Accord, lowa Mutual, 480 U.S. at 18 (“Tribal authority

over the activities of non-Indians on reservation lands is an

important part of tribal sovereignty. Civil jurisdiction over such

activities presumptively lies in the tribal courts unless affirmatively

limited by a specific treaty provision or federal statute”).

15

patna BALA pan of oven

In the Indian Tribal Justice Act of 1993, Congress

expressly reaffirmed the importance of tribal sovereignty and

the role of tribal courts in promoting and preserving tribal

sovereignty. 25 U.S.C. § 3601. In particular, Congress

expressly stated that tribal courts are “an essential part of

tribal governments and serve as important forums for insuring

public health and safety and the political integrity of tribal

governments,” and that tribal courts are “appropriate forums

for the adjudication of disputes affecting personal and

property rights.” 25 U.S.C. §§ 3601(5)-(6). The legislative

history of the Indian Tribal Justice Act clarifies that Congress

intended by these sections to reaffirm tribal court jurisdiction

over non-Indian defendants whose conduct injures tribal

members on the reservation. The Senate Report

accompanying the Act states:

[25 U.S.C. § 3601(6)] was added to emphasize

that tribal courts are permanent institutions

charged with resolving the rights and interests

of both Indian and non-Indian individuals.

The language tracks similar language of the

Supreme Court in its ruling in Santa Clara

Pueblo v. Martinez, 436 U.S. 49 (1978), in

which the Court stated that “tribal courts have

repeatedly been recognized as appropriate

forums for the exclusive adjudication for

disputes affecting important and personal

property interests of both Indians and non-

Indians.

Id. at 65.; S.REP. NO. 88, 103RD CONG. IST SESS. 8 (1993).

The House Report accompanying the Act also clarified

Congress’s understanding that Indian tribal courts retain the

right to exercise civil jurisdiction within their territory,

16

including jurisdiction over the activity of non-Indians on

reservation land in which the tribes have a significant interest.

“Hence, non-Indians may be sued in tribal court.” H.R. REP.

NO. 205, 103RD CONG. 1ST SESS. at pp. 8-9 (1993).

Congress’s policy in this area has been unwavering

since the dawn of the self-determination era in the early

1970s. See, e.g., Mescalero Apache, 464 U.S. 334-35 n.17

(and statutes cited); lowa Mutual, 480 U.S. at 14-15 nn. 5 and

6. Current Executive Branch policy echoes the commitment

of Congress:

The United States has a _ unique legal

relationship with Indian tribal governments as

set forth in the Constitution of the United

States, treaties, statutes, Executive orders, and

court decisions. Since the formation of the

Union, the United States has recognized Indian

tribes as domestic dependent nations under its

protection. In _ treaties, our Nation has

guaranteed the right of Indian tribes to self-

government. As domestic dependent nations,

Indian tribes exercise inherent sovereign

powers over their members and territory. The

United States continues to work with Indian

tribes on a government-to-government basis to

address issues concerning Indian tribal self-

government, trust resources, and Indian tribal

treaty and other rights.

Exec. Order No. 13084, 63 Fed. Reg. 27655 (1998)

(emphasis added).

The Ninth Circuit’s decision below erroneously

extends the holding in Strate to apply to actions which directly

17

CAPE DED Etat LN eR IIIS LTTE SP ATE ALDI ORB LIN IS TEI Te 8 oka then Bar a

involve tribal members and is contrary to federal policy and

Congress’s findings in the Indian Tribal Justice Act, as shown

above. This Court should grant certiorari to resolve the

conflict and bring the Ninth Circuit’s decision in line with the

expressed policy of Congress as stated in the Indian Tribal

Justice Act.

The Ninth Circuit’s extension of Strate’s holding to

apply to actions brought by tribal members who are injured as

a result of the negligent acts of non-Indians on the reservation

is also inconsistent with the 1968 amendment to Public Law

280, 25 U.S.C. § 1326. Under § 1326 Congress expressly

required tribal consent (via a secretarial election) as a

prerequisite to the exercise of state court jurisdiction over

reservation-based actions involving tribal members. 25

U.S.C. § 1326. This Court has held that Pub. L. 280 does

not preclude state courts from exercising jurisdiction when a

tribe or its member “seeks rather than contests” state court

jurisdiction to resolve a dispute between a tribal member and

nonmember, because tribal self-government is not impeded in

such a case. Three Affiliated Tribes v. Wold Engineering,

467 U.S. 138, 140, 149-51 (1984). However, § 1326 does

indeed prohibit the judiciary from divesting tribal court

jurisdiction and requiring a tribal member to seek redress in

state court instead of tribal court against his or her will for a

reservation-based claim. Before a tribal member can be

forced to seek redress in state court, the tribe has to consent

to the exercise of state court jurisdiction in accordance with

the procedures outlined in § 1326. Kennerly v. District

Court, 400 U.S. 423 (1971). Thus, the Ninth Circuit’s

holding that a tribal member cannot seek relief in tribal court

but must instead seek redress in the state courts conflicts with

Pub. L. 280, not to mention Williams and this Court’s other

decisions which have heretofore upheld the jurisdiction of

18

tribal courts to adjudicate actions between tribal members and

nonmembers.

D. The Ninth Circuit’s Decision

Excusing the Parties from

Exhausting Their Tribal Court

Remedies Conflicts with this Court’s

Previous Decisions in National

Farmers Union Insurance Co. V.

Crow Tribe, and lowa Mutual

Insurance-Co. V. La Plante.

The facts of National Farmers, supra, are identical in

all material respects to this case. National Farmers involved

a personal injury action brought by a Crow tribal member

against a nontribal member. The cause of action occurred

within the Crow Reservation on fee land owned by the Lodge

Grass School District. 471 U.S. at 847. Thus, even

assuming that the Ninth Circuit’s decision to equate -

Burlington Northern's right-of-way with fee land is correct,

the fact remains that this case is factually identical in all

material respects to National Farmers. The Ninth Circuit

nevertheless interpreted Strate to excuse exhaustion even

though Strate did not involve a tribal member who was a party

to the law suit. The Ninth Circuit's interpretation of Strate

thus directly conflicts with this Court’s previous decision in

National Farmers. It also conflicts with this Court’s later

decision in lowa Mutual, supra. Both cases required the

parties to exhaust all of their tribal court remedies, including

review in the tribal court of appeals, prior to a federal court

entertaining the issue of tribal court jurisdiction. Both cases

involved parties who were tribal members (Strate did not),

and both cases arose within the boundaries of a reservation,

either on fee land or on a right-of-way. There is simply no

way to reconcile the Ninth Circuit's decision in this case with

19

a

ee eee ee

the exhaustion doctrine as it has developed under National

Farmers and Iowa Mutual. The Ninth Circuit’s interpretation

of Strate to divest the Crow Tribal Court of its jurisdiction in

this case brings Strate into direct conflict with National

Farmers and Iowa Mutual. The Court should accept

jurisdiction to resolve this conflict and Clarify what, if

anything, remains of the exhaustion doctrine first announced

in National Farmers.

This Court’s recent decision in El Paso Natural Gas,

supra, supports the notion that the Ninth Circuit should have

required the parties to exhaust their tribal court remedies in

this case. The Court explained the rationale underlying the-

exhaustion doctrine in El Paso:

{National Farmers] was a suit involving the

federal question jurisdiction of the United

States district court under 28 U.S.C. § 1331,

brought to determine whether a tribal court has

the power to exercise civil subject matter

jurisdiction over non-Indians. We held,

initially, that federal courts have authority to

determine, as a matter arising under federal

law, whether a tribal court has exceeded the

limits of its jurisdiction. After concluding that

federal courts have subject matter jurisdiction

to entertain such a case, we announced that,

prudentially, a federal court should stay its

hand until after the tribal court has had a full

opportunity to determine its own jurisdiction.

In justification of a prudential requirement of

tribal exhaustion, we stated that the existence

and extent of a tribal court’s jurisdiction will

require a careful examination of tribal

sovereignty, the extent to which that

20

sovereignty has been altered, divested, or

diminished, as well as a detailed study of

relevant statutes, executive branch policy as

embodied in treaties and elsewhere, and

administrative and judicial decisions. The

same decisions of comity [in Iowa Mutual]

provided the rationale for extending the

doctrine to cases where a defendant in tribal

court asserts federal diversity jurisdiction in a

related action in district court. Exhaustion was

appropriate in each of those cases because

Congress is committed to a policy of

supporting tribal self-government which favors

a rule that will provide the forum whose

jurisdiction is being challenged the first

opportunity to evaluate the factual and legal

basis for the challenge.

El Paso, 526 U.S. at 484 (citations and quotations omitted).

Although El Paso held that exhaustion was not

required in that particular case, it did so only because of a

“unusual preemption provision” of the Price Anderson Act,

under which Congress had preempted state and tribal court

jurisdiction over nuclear tort claims. 526 U.S. at 584-85. No

such congressional act preempting tribal court jurisdiction is

at issue in this case. On the contrary, the only congressional

Statute which arguably is relevant here is the Indian Tribal

Justice Act, and that Act expressly supports the existence of

tribal court jurisdiction over this case.

A review of the procedural history of this case, as

outlined in the Petition for Certiorari, illustrates that it has

become the exact procedural nightmare that this Court in

National Farmers sought to avoid. This Court should grant

21

the Petition for Certiorari to resolve the conflict created by the

Ninth Circuit between Strate on the one hand, and National

Farmers, Iowa Mutual, and El Paso on the other.

II. This Court Should Grant Certiorari Under Rule

10(a) Because the Ninth Circuit’s Decision Conflicts

With Decisions of Other Court’s Of Appeals.

The Ninth Circuit’s decision below conflicts with the

Tenth Circuit’s decision in Kerr-McGee Corp., supra. In

Kerr-McGee, the Tenth Circuit held that exhaustion of tribal

court remedies was required in a case where tribal member

plaintiffs sued a nonmember in a reservation-based tort action.

In the course of its holding, the Tenth Circuit recognized that

strong tribal interests were implicated by the tribal members’

claims. The mill that allegedly produced the toxic and

radioactive waste was located on the reservation pursuant to

a tribal lease, and the alleged victims of the tort were tribal

members residing on the reservation. In such cases, the Tenth

Circuit noted that the “tribal nexus is strong, as is the interest

of the tribe as a sovereign in protecting and vindicating the

rights of its residents.” More important, the court discussed

the implications of Strate and Montana on its holding:

Even Strate and Montana, cases that curtailed

tribal authority over non-Indians, recognized

that tribes retain a core sovereign interest in

protecting the health and welfare‘ of the tribe

such that they may regulate non-Indians on all

lands within the reservation. This appears to

be such a case.

Kerr-McGee, 115 F.3d at 1508.

22

By contrast, the Ninth Circuit below was blind to the

fact that tribal members who resided on the reservation were

victims in this case, and failed to recognize that this factor, a

factor not present in Strate, implicates the significant tribal

interest in not only protecting the health and welfare of tribal

members, but in providing a judicial forum where tribal

members can seek redress for their injuries caused as a result

of the negligence of non-Indians on the reservation. These -

are the exact same considerations that underlie the Supreme

Court’s decision in Williams v. Lee, supra.

Moreover, the Ninth Circuit’s analysis in this case is

in conflict with the Eighth Circuit’s en banc decision in

Strate, which this Court ultimately affirmed. A-1 Contractors

v. Strate, et al., 76 F.3d 930 (8th Cir. 1996), aff'd, 520 U.S.

438 (1997). Although the Eighth Circuit held that the tribal

court lacked jurisdiction in Strate, the court rested its holding

on principles much more consistent with the Supreme Court’s

other precedent in the area of tribal jurisdiction. The Eighth

Circuit recognized that this Court’s decision in Montana v.

U.S. was seemingly at odds with the Court’s other decisions

like Williams v. Lee, lowa Mutual, and Merrion. In its en

banc decision, the court harmonized the two seemingly

conflicting lines of cases:

Arguably, some of the language from lowa

Mutual, Williams, and Merrion can be viewed

in isolation to create tension with Montana. A

careful reading of the particular language of

those cases, however, indicates that they can

and should be read together with Montana to

establish one comprehensive and integrated

rule: a valid tribal interest must be at issue

before a tribal court may exercise civil

jurisdiction over a non-Indian or nonmember,

23

Ne AP sis AR A hate

but once the tribal interest is established, a

presumption arises that tribal courts have

jurisdiction over the non-Indian or nonmember

unless that jurisdiction is affirmatively limited

by federal law. This rule is supported by the

above authority and by the leading treatise on

American Indian law, which specifically states:

“Tribal courts probably lack jurisdiction over

civil cases involving only non-Indians in most

Situations, since it would be difficult to

establish any direct impact on Indians or their

property.” This well accepted rule controls

this case.

76 F.3d at 938-39 quoting Felix S. Cohen’s Handbook of

Federal Indian Law, 342-43 (1982 Ed.).

The en banc court went on to conclude that no valid

tribal interest existed in A-1 Contractors because the dispute

was “exclusively between non-Indians involved in [a] run-of-

the-mili [highway] accident” making the dispute “distinctively

non-tribal in nature.” /d. at 940. In affirming, this Court

recognized the same principle. 520 U.S. at 457.

The Ninth Circuit’s decision below Strays far beyond

the principles identified by the en banc Eighth Circuit

decision in A-1 Contractors, principles which were implicitly

accepted by this Court in its affirmance. The holding in

Strate can not be extended to civil actions brought by injured

tribal members. In the latter case, tribal courts presumptively

have jurisdiction as Williams, lowa Mutual, and Merrion all

hold. This Court should grant the Petition for Certiorari and

harmonize Strate with Williams, lowa Mutual, Merrion and

the numerous other cases decided by this Court which uphold

24

tribal sovereignty in cases where the interests of the tribe or

tribal members are directly implicated.

il. This Court Should Grant the Petition for Certiorari

Because the Ninth Circuit Has Decided an

Important Question of Federal Law That Has Not

Been, But Should Be, Settled by this Court.

As the above discussion illustrates, the Ninth Circuit

has extended the holding in Strate to apply to reservation-

based civil claims brought by injured tribal members in tribal

court. No case in this Court has ever decided that tribal

courts lack civil jurisdiction over such cases. Strate only

involved a tort action between two nonmembers. Such a case

does not implicate any tribal interest because it did not involve

tribal members who were killed as a result of the negligent

conduct of a non-Indian on the reservation. Prior to Strate,

the decisions of this Court and the lower courts were uniform

in upholding tribal jurisdiction over actions where tribal

members were parties in a dispute against nonmembers.* The

conflicts which the Court’s decision in Strate has created in

the lower courts has led to increased litigation where judges,

particularly tribal court judges, must decide jurisdictional

challenges in nearly every civil case filed by tribal members

against nonmembers on the reservation. The courts facing

these jurisdictional challenges have in many cases reached

different and anomalous results. For example, after Strate the

* E.g., Williams v. Lee; lowa Mutual; National Farmers;

Santa Clara, supra; Hinshaw v. Mahier, 42 F.3d 1178 (9th Cir.

1994), cert. denied, 513 U.S. 988 (1994); Babbitt Ford, Inc. v.

Navajo Indian Tribe, 710 F.2d 587 (9th Cir. 1983), cert. denied,

466 U.S. 926 (1984).

25

Ninth Circuit has held on the one hand that an Indian tribe

retains the power to regulate non-Indian use of water on non-

- Indian lands within the reservation. Montana v. U.S. EPA,

137 F.3d 1135 (9th Cir. 1998), cert. denied, 525 U.S. 921

(1998). On the other hand, the Ninth Circuit in the case

below, and in at least one other case, has also held that an

Indian tribe cannot provide a judicial forum for its own

members who are injured or even killed due to the alleged

negligence of nonmembers on reservation lands. See Wilson

v. Marchington, 127 F.3d 805 (9th Cir. 1997), cert. denied,

523 U.S. 1074 (1998). The Supreme Court should grant

certiorari to clarify that Strate does not extend to reservation-

based claims brought by tribal members who are injured as a

result of the allegedly negligent conduct of nonmembers on

reservation land.

CONCLUSION

The Respondent Crow Tribe respectfully requests that

the Petition for Certiorari be granted, and that the Ninth

Circuit’s decision divesting the tribal court of its jurisdiction,

and holding that exhaustion of tribal court remedies is not

required, be reversed.

/s/

FREDERICKS, PELCYGER & HESTER, LL

Robert S. Pelcyger

John Fredericks III

Counsel of Record

1075 S. Boulder Rd. Suite 305

Louisville, CO 80027

(303) 673-9600

Attorneys for Respondent Crow Tribe

26