U.S Supreme Court deals another blow to tribal sovereignty


Washington D.C.-In a disappointing outcome, on June 25, 2008 a sharply divided United States Supreme Court (5-4) held in Plains Commerce Bank v. Long Family Land & Cattle Company that the Cheyenne River Sioux Tribal Court does not have jurisdiction over a claim by tribal members Ronnie and Lila Long that Plains Commerce Bank tortiously discriminated against them by selling fee (privately owned pursuant to acts of Congress) lands within the Cheyenne River Sioux Reservation to non-Indians on terms more favorable than the Bank offered to the Longs. The Native American Rights Fund was part of the Longs’ co-counsel team in the Supreme Court that broke the news of the Court’s decision to Ronnie Long Wednesday morning by cell phone. “I was on the Reservation driving in my truck and the attorneys told me to pull over,” said Ronnie. “My heart was beating fast. But after they told me what the Court did, I went into a long silence.”

In a hypertechnical distinction which the dissent found unpersuasive, Chief Justice Roberts, joined by Justices, Scalia, Kennedy, Thomas and Alito, distinguished between sales of fee land by non-Indians on the Reservation, over which the majority opined that Tribes have no regulatory authority, and activities by non-Indians on fee lands which may implicate a Tribe’s sovereign interests and be subject to tribal regulation. According to the majority, since the discrimination claim “is tied specifically to the sale of the fee land” land alienated from tribal trust land and removed from tribal control the Tribe has no authority to regulate the terms upon which the land can be sold, even if those terms are discriminatory and favor non-Indians over Indians. Lacking authority to regulate fee land sales, the Tribe has no adjudicatory authority over claims based on such sales since a Tribe’s adjudicatory authority cannot exceed its regulatory authority. Interestingly, however, because the majority expressly made clear that it was not addressing whether the Tribal Court had jurisdiction over the Longs’ breach of contract and bad faith claims (the Bank had not appealed those claims), that leaves the Tribal Court jury award of $750,000 to the Longs possibly open to be the subject of further proceedings.

Justice Ginsberg, joined by Justices Stevens, Souter and Breyer, dissented, finding the majority’s position “perplexing.” If the tribal court has jurisdiction over the Longs’ breach of contract and bad faith claims “that the Bank has broken its promise or acted deceptively in the land-financing transactions at issue” the dissent was hard pressed to understand why the Tribe could not likewise enforce its laws prohibiting discrimination arising out of those same transactions. In the view of the dissent, “the Longs case, at heart, is not about ‘the sale of fee land to non-Indian individuals,’ ‘[r]ather, this case is about the power of the Tribe to hold nonmembers like the Bank to a minimum standard of fairness when they voluntarily deal with tribal members.’”

Plains Commerce Bank is the first Indian law case since the addition of Chief Justice Roberts and Justice Alito to the Court. Although it is only one case, the opinion is disturbing in its resort to technicalities to chip away at tribal sovereignty and its willingness to ignore the Bank’s lengthy and extensive dealings on the Reservation, including its successful use of the Tribal Court as a plaintiff in numerous other cases against tribe members. It is unclear what the long-term effects of the decision will be, but it is not a promising beginning to the Robert’s era.