Defending a Tribe’s Right to Govern Tribal Lands

Attorney: Melody McCoy, Wesley James Furlong, Kim Jerome Gottschalk, Matthew L. Campbell

In Big Horn County Electric Cooperative v. Alden Big Man, et al, the Native American Rights Fund (NARF) represents the Crow Tribe in its fight to defend its sovereignty and protect vulnerable Tribal citizens. In a big win for the Tribe, the Ninth Circuit Court of Appeals affirmed Crow tribal sovereignty in a March 11, 2022, decision.

Flag of Crown Nation

Background:

To protect vulnerable populations, the Crow Tribe has a statute similar to laws in place in almost 40 states that regulates whether and how utility companies may disconnect electric energy and service to indigent, elderly and disabled residential customers during winter months. The statute requires proper advance notice and the approval of the Crow Tribal Health Board. Big Horn County Electric Cooperative, the primary provider of electricity on the Crow Reservation in southeast Montana, disputes that it is subject to Crow statute, and disconnected service to Tribal citizen Alden Big Man in January 2012, allegedly without following the statute.

The Litigation:

Mr. Big Man Brings Suit in Tribal Court

Mr. Big Man, who lives on tribal trust land that he leases from the Crow Tribe, sued Big Horn in Tribal Court, alleging violations of the Crow statute. The Crow Court of Appeals upheld the application of the statute to Big Horn’s provision of electric energy and service to Big Man, and held that the Tribal Court could hear Big Man’s claims against Big Horn arising under the statute.

Federal District Court Upholds Crow Tribe’s Jurisdiction

Big Horn then sought federal court review of the Crow Court of Appeals’ decision. In addition to naming Big Man, Big Horn named the Tribal Court and Tribal Health Board as defendants. NARF represents the Tribal Court and the Tribal Health Board in the federal court proceedings.

After extensive briefing and oral argument, the federal district court in Montana upheld the application of Crow’s statute to Big Horn’s provision of service to Big Man. The federal district court held that the Tribal Court could proceed to hear Big Man’s claims against Big Horn arising from the disconnection.

Big Horn Appeals to Ninth Circuit Court of Appeals

Big Horn County Electric appealed the federal district court’s order to the U.S. Court of Appeals for the 9th Circuit. The court heard oral argument on the appeal on Feb. 8, 2022.

The U.S. Court of Appeals for the 9th Circuit archived the Feb. 8 live-online broadcast of the oral arguments in Big Horn County Electric Cooperative v. Alden Big Man, et al (above) at https://www.ca9.uscourts.gov/media/video/?20220208/21-35223/.

Ninth Circuit Affirms Tribal Sovereignty

In a big win for the Tribe, the Ninth Circuit Court of Appeals affirmed Crow tribal sovereignty in a March 11, 2022, decision in Big Horn County Electric Cooperative v. Alden Big Man, et al. From the decision [link to the decision online], “In Big Horn County Electric Cooperative, Inc. v. Adams, 219 F.3d 944 (9th Cir. 2000), we determined that the BHCEC’s “voluntary provision of electrical services” on the Tribe’s reservation and its contracts with tribal members to provide electrical services created a consensual relationship, within the meaning of Montana. 219 F.3d at 951. … Put simply, the winter electric regulation conditions one aspect of the consensual relationship.”

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