No. 07-411

PLA~IS COMMIRIE BANK,

P~~r,

~NG F~LY ~ ~ CA~ CO~, INC.

RO~E ~NG ~ L~ ~NG

Respo~.

On Writ of Certiorari to the United StatesCourt of Appeals for the Eighth Circuit

BRIEF OF NATIONAL CONGRESS OFAMERICAN INDIANS ET AL.

AS AM/CI CURIAEIN SUPPORT OF RESPONDENTS

Rrr~z A. KANJ~ CARTER G. PmLL~PSKANJI & KATZEN, PLLC VIRGINIA A. SEITZ*101 N. Main StreetSuite 555Ann Arbor, MI 48104(734) 769-5400

JOHN DOSSETT

SIDLEY AUSTIN LLP1501 K Street, N.WiWashington, D.C. 20005(202) 736-8000

NATIONAL CONGRESS OFA~ER~CAN INDL~NS

1301 Connecticut Ave.2nd FloorWashington, DC 20036(202) 466-7767

Counsel for Amici Curiae

March 19, 2002 * Counsel of Record

[Amici Curiae Listed on Inside Cover]

WlLImN~PES PmN~NG CO., INC. -- (202) 789-0098 -- WASHINGTON, D, C. 20002

This brief is filed on behalf of the following amicicuriae:

National Congress of American Indians

Confederated Salish and Kootenai Tribes of Montana

Confederated Tribes of the Warm Spring IndianReservation of Oregon

Duckwater Shoshone Tribe of the DuckwaterReservation of Nevada

Flandreau Santee Sioux Tribe

Fond du Lac Band of Chippewa

Hopi Indian Tribe

Minnesota Chippewa Tribe

Oglala Sioux Tribe

Omaha Tribe of Nebraska

Pueblo of Laguna

Rosebud Sioux Tribe

Saginaw Chippewa Indian Tribe oI[ Michigan

Salt River Pima-Maricopa Indian Community

St. Croix Chippewa Indians of Wisconsin

Standing Rock Sioux Tribe

Winnebago Tribe of Nebraska

TABLE OF CONTENTSPage

iiTABLE OF AUTHORITIES .................................

STATEMENT OF INTEREST OF AMICICURIAE .............................................................1

INTRODUCTION AND SUMMARY OF ARGU-MENT .................................................................2

ARGUMENT .........................................................6

I. THE ORIGINS AND EVOLUTION OFINDIAN TRIBES’ CIVIL JURISDICTIONDEMONSTRATE THAT THE TRIBALCOURTS HAD JURISDICTION HERE .......6

II. NONE OF THE BANK’S ARGUMENTSCASTS DOUBT ON THE EXERCISE OFTRIBAL-COURT JURISDICTION HEREUNDER MONTANA .....................................20A. This Civil Dispute Is Not About And

Does Not Arise On Non-Indian Land .......20B. Tribal Courts Had Jurisdiction Under

Montana 22

1. This Case Involves A Straightfor-ward Application of Montana’s FirstTest ........................................................22

2. Montana’s Second Test Also SupportsTribal Court Jurisdiction .....................27

III. NOTHING IN THE REALITY OF TRIBALCOURTS OR TRANSACTIONS AMONGTRIBES, TRIBAL MEMBERS AND NON-INDIANS REQUIRES THIS COURT TOFORBID TRIBAL-COURT JURISDIC-TION ..............................................................28

CONCLUSION .....................................................32

ii

TABLE OF AUTHORITIESCASES Page

Atkinson Trading Co. v. Shirley, 532 U.S.645 (2001) ..................................................15, 16

Berenyi v. District Dir., 385 U.S. 630(1967) ........................................................-.. 23

Brendale v. Confederated Tribes & Bandsof the Yakima Indian Nation, 492 U.S.408 (1989) ...................................................18

Buster v. Wright, 135 F. 947 (8th Cir.1905), limited on other grounds, AtkinsonTrading Co. v. Shirley, 532 U.S. 645(2001) ..........................................................15

Commissioner v. Bollinger, 485 U.S. 340(1988) ..........................................................26

Cherokee Nation v. Georgia, 30 U.S. (5Pet.) 1 (1831) ..............................................7

Cipollone v. Liggett Group, Inc., 505 U.S.504 (1992) ...................................................25

Duro v. Reina, 495 U.S. 676 (1990), super-seded by statute, Act of Oct. 28, 1991,Pub. L. No. 102-137, 105 Stat. 646, asrecognized by United States v. Lara, 541U.S. 193 (2004) ..........................................12, 13

Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9(1987) .........................................................18, 24

Kerr-McGee Corp. v. Navajo Tribe ofIndians, 471 U.S. 195 (1985) .....................16

Marbury v. Madison, 5 U.S. (1 Cranch) 137(1803) ..........................................................27

Merrion v. Jicarilla Apache Tribe, 455 U.S.130 (1982) ...................................................7, 16

Minnesota v. Mille Lacs Band of ChippewaIndians, 526 U.S. 172 (1999) .....................7

Montana v. United States, 450 U.S. 544(1981) ............................................ 1, 3, 14, 20, 23

TABLE OF AUTHORITIES - continuedPage

Morris v. Hitchcock, 194 U.S. 384 (1904) ....13, 15National Farmers Union Ins. Cos. v. Crow

Tribe, 471 U.S. 845 (1985) ........................17, 23Nevada v. Hicks, 533 U.S. 353 (2001) ........ passimNew Mexico v. Mescalero Apache Tribe, 462

U.S. 324 (1983) ...........................................16Oliphant v. Suquamish Indian Tribe, 435

U.S. 191 (1978), superseded by statute,Act of Oct. 28, 1991, Pub. L. No. 102-137,105 Stat. 646, as recognized by UnitedStates v. Lara, 541 U.S. 193 (2004) ..........11, 12

Riegel v. Medtronic, Inc., 128 S. Ct. 999(2008) .........................................................25, 26

Santa Clara Pueblo v. Martinez, 436 U.S.49(1978) .....................................................7

South Dakota v. Yankton Sioux Tribe, 522U.S. 329 (1998) ...........................................9

Strate v. A-1 Contractors, Inc., 520 U.S.438 (1997) ...................................... 15, 16, 18, 23

Talton v. Mayes, 163 U.S. 376 (1896) ...........8United States v. Lara, 541 U.S. 193

(2004) ...................................................... 7, 8, 13United States v. Mazurie, 419 U.S. 544

(1975) ..........................................................10Washington v. Confederated Tribes of the

Colville Indian Reservation, 447 U.S. 134(1980) 13, 14, 18

Williams v. Lee, 358 U.S. 217 (1959) ......4, 10, 11,23, 24

Worcester v. Georgia, 31 U.S. (6 Pet.) 515(1832), aborgation on other groundsrecognized by Nevada v. Hicks, 533 U.S.353 (2001) ...................................................6, 8

iv

TABLE OF AUTHORITIES - continuedFEDERAL STATUTES AND REGULATIONS Page

18 U.S.C. § 1151 (1994) .................................925 U.S.C. § 1302 ............................................12

§ 1451 et seq ..................................2125 C.F.R. § 103.4(d) .......................................22

§ 103.6 ............................................22

LEGISLATIVE HISTORY

Hearing on Concerns of Recent Decisions ofthe U.S. Supreme Court and the Futureof Indian Tribal Governments in AmericaBefore the S. Comm. on Indian Affairs,107th Cong. (2002) .....................................28

SCHOLARLY AUTHORITIES

Bethany R. Berger, Justice and the Out-sider: Jurisdiction Over Nonmembers InTribal Legal Systems, 37 Ariz. St. L.J.1047 (2005) .................................................28

Felix S. Cohen, Handbook of FederalIndian Law (2005) ............................. 6, 7, 21, 24

Philip P. Frickey, A Common Law for OurAge of Colonialism: The Judicial Divesti-ture of Indian Tribal Authority OverNonmembers, 109 Yale L.J. 1 (1999) .........8, 11

L. Scott Gould, The Congressional Re-sponse to Duro v. Reina: CompromisingSovereignty and the Constitution, 28 U.C.Davis L. Rev. 53 (1994) ...............................9

William T. Hagan, Indian Police andJudges: Experiments in Acculturationand Control (1966) .....................................27

STATEMENT OF INTERESTOF AMICI CURIAE1

Established in 1944, the National Congress ofAmerican Indians ("NCAr’) is the oldest and largestAmerican Indian organization, representing morethan 250 Indian Tribes and Alaskan Native villages.NCAI and the amici tribes are dedicated to protectingthe rights and improving the welfare of AmericanIndians and tribes.

The decision in this case may have criticallyimportant implications for tribal self-government.This Court has long recognized that the ~tribes’inherent sovereign powers include tribal-courtauthority to exercise civil jurisdiction over "theactivities of nonmembers who enter consensualrelationships with the tribe or its members, throughcommercial dealing, contracts, leases or otherarrangements," and over the "conduct of non-Indianson fee lands within [a] reservation when that conductthreatens or has some direct effect on the politicalintegrity, the economic security, or the health orwelfare of the tribe." Montana v. United States, 450U.S. 544, 565-66 (1981). The rule of law urged by thePlains Commerce Bank ("the Bank") would effectivelynullify this longstanding recognition of tribal-courtjurisdiction.

NCAI tribes have a strong interest in participatingin this case because they are responsible for theadministration of civil justice in Indian country,

1 No person or entity other than amici made a monetarycontribution to the preparation or submission of this brief.Counsel of record for both parties have consented to the filing ofthis brief, and the letters of consent have been filed with theClerk.

2

which they have long viewed as a critical attribute oftribal self-government and sovereignty. They opposethe abandonment of time-honored principles ofIndian law and seek to prevent the furtherdeterioration of tribal sovereignty that the Bankurges this Court to effect in this case.

INTRODUCTION ANDSUMMARY OF ARGUMENT

The Bank seeks to void a judgment of the CheyenneRiver Sioux Tribal Court of Appeals. That judgmentupheld a jury verdict for Ronnie and Lila Long andthe Long Family Land and Cattle Company (jointly,"the Longs"), on a number of claims against the Bank.The Bank, which has utilized the Cheyenne Rivercourts with favorable results for many years, seegenerally Amicus Brief of Cheyenne River SiouxTribe ("Tribe"), did not originally object to the tribalcourts’ jurisdiction, and continues to acknowledge thecourts’ jurisdiction over the Longs’ breach-of-contractand bad-faith claims. The Bank now contends thatthe tribal courts lacked jurisdiction only over theLongs’. claim that the Bank discriminated incontracting with them for the sale of their land inexchange for certain loans, and the right torepurchase that land, and in selling their land tononmembers "’on terms more favorable’" than theBank offered to the Longs. App. A-4.

NCAI agrees with the Longs that the Bank lacksstanding to challenge the judgment on the Longs’discrimination claim and that, even if the Bank hadstanding, the judgment should be affirmed on othergrounds. This brief, however, addresses the merits ofthe Bank’s arguments in the event the Court decidesto consider them. Specifically, the Bank claims that

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the tribal courts lacked jurisdiction over the Longs’discrimination claim for three reasons:

(i) the cause of action involved reservation landowned by a nonmember, the Bank;

(ii) although tribes may "regulate ... the activitiesof nonmembers who enter consensual relationshipswith the tribe or its members, through commercialdealing, contracts, leases or other arrangements,"Montana, 450 U.S. at 565, adjudication is notregulation; and, thus, tribes may not adjudicatecauses of action that involve such relationships, and

(iii) the cause of action did not involve "conduct[that] threatens or has some direct effect on thepolitical integrity, the economic security, or thehealth or welfare of the tribe," id. at 566.

In fact, however, this case involves a straight-forward application of Montana’s delineation of tribaljurisdiction over nonmembers. As the record makesclear, the Longs and the Bank had a longstandingconsensual, commercial relationship involving theLongs’ ranch and its cattle operations on thereservation - a relationship made possible anddirectly affected by the Bureau of Indian Affairs’("BIA’s") regulations concerning loans to tribes andtribal members. The Bank’s action against theLongs, and the Longs’ discrimination counter-claimagainst the Bank, arose directly from thesecommercial dealings. Specifically, the Longs chargedthat the Bank offered them terms less favorable thanthose offered to nonmembers in connection with thetransactions at issue. This relationship falls squarelywithin Montana’s terms. See Longs’ Br. 39-44.

The Bank’s first response - that the tribal courtslacked jurisdiction because the land at issue belongsto a nonmember - is based on mischaracterizations of

4fact and a faulty analysis of the jurisdictional issue.The Bank’s factual premise - that the Longs’ ranch isnonmember land for purposes of this case - is wrong.And, in any event, the question presented is notwhether the Tribe has jurisdiction over the Longs’ranch, but whether the Tribe has jurisdiction over aconsensual, commercial relationship between theLongs (tribal members), their Company (a tribalentity, see infra at 22-23) and the Bank - aconsensual relationship within which the Longsdeeded their land located within the reservation tothe Bank in exchange for additional loans and a leasewith an option to purchase. App. A-10.

The Bank argues in the alternative that tribalcourts lack jurisdiction under both tests set forth inMontana. The Bank asserts that the first test is notsatisfied because it never entered into a consensual,commercial relationship with a tribe or tribalmembers. This argument is demonstrably wrong andwas correctly decided against the Bank by both lowercourts.

The Bank’s principal argument is that the"consensual relationship" test does not apply to tribalcourts’ exercise of civil jurisdiction. The Bankcontends that although tribes can enact laws andregulations governing such relationships, tribalcourts cannot adjudicate claims arising from suchrelationships. This argument parses the language inMontana as if it were a statute, narrowly interpretingthe word "regulate" to exclude adjudication. But thatopinion is not a statute, see Nevada v. Hicks, 533U.S. 353, 371-72 (2001); and there is no logic to theargument. Indeed, this Court has held, bothgenerally and in the Montana context, that civillitigation regulates parties in the sense intended byMontana. And, in Williams v. Lee, 358 U.S. 217

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(1959), a seminal case relied on by Montana, thisCourt made clear that tribal courts have exclusivejurisdiction over non-Indians’ claims against tribalmembers based on consensual, commercialtransactions in Indian country.

The Bank’s reading of Montana would effectivelyeliminate tribal-court jurisdiction over nonmembersengaged in substantial commercial and domesticrelationships with tribes and tribal members,contrary to this Court’s precedent and in derogationof the tribes’ ability to operate effective governments.The Bank, in other words, would have this Courtundo both of the Montana tests in one fell swoop,despite the fact that neither this Court nor thepolitical branches have suggested in the quartercentury since Montana that its tests should bedismantled.

None of the Bank’s policy arguments vitiatesMontana’s application here. Based on this Court’s1959 decision in Williams and on Montana, non-Indians entering into consensual, commercialtransactions and relationships have been on noticefor almost half a century that tribal courts havejurisdiction over disputes arising out of suchtransactions and relationships. The traditional toolsof negotiation of choice of law and choice of forumprovisions provide nonmembers with flexibility indoing business with tribes and tribal members inIndian country, while preserving inherent tribalsovereignty. The Bank’s attacks on tribal courts(made despite its use of the Tribe’s courts) aregrounded in innuendo, not fact, and run counter toboth the strong congressional policy supporting tribalcourts and the demonstrable efficacy and fairness ofthose courts in practice.

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ARGUMENT

I. THE ORIGINS AND EVOLUTION OFINDIAN TRIBES’ CIVIL JURISDICTIONDEMONSTRATE THAT THE TRIBALCOURTS HAD JURISDICTION HERE.

A. The Constitution does not clearly delineate therelationship among Indian tribes, the federalgovernment, and the States. It has thus fallen toCongress and this Court to define what powers inherein the tribes’ sovereign authority and what powersare lost or limited in view of the tribes’ status asdomestic, dependent nations within the UnitedStates. To understand the scope of tribal civiljurisdiction today, it is critical to understand theevolution of the tribes’ historical and legal status.

Prior to conquest, the tribes possessed the powersof any sovereign state. See generally Felix S. Cohen,Handbook of Federal Indian Law ch. 1 (2005). And,during the colonial period, the tribes were recognizedas sovereigns, retaining and exercising plenary policepower over their own territories and members. SeeWorcester v. Georgia, 31 U.S. (6 Pet.) 515, 544-45(1832). However, under the so-called "discoverydoctrine," as European powers spread across thecontinent, they were deemed to have gained the rightto exclude other European powers from discoveredlands and the exclusive right to purchase Indianlands. Id. at 543-44.

When the United States declared independence, theBritish Crown’s discovery rights passed to thecolonies and, ultimately, to the United States. Aftera period of great confusion and conflict between thecolonies and the federal government over whopossessed the authority to deal with the Indiannations under the Articles of Confederation, the

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Constitution "grant[ed] Congress broad generalpowers to legislate in respect to Indian tribes, powersthat [this Court] has consistently described as’plenary and exclusive.’" United States v. Lara, 541U.S. 193, 200 (2004).

Critically, the tribes retained sovereignty in theirterritory except to the extent specifically and ex-pressly limited by Congress. See Cherokee Nation v.Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). In the Consti-tution’s text, the Indian Commerce Clause parallelsthe interstate and foreign Commerce Clauses in agrammatical sense. This parallel phrasing evincesthe Framers’ intention that the national governmentwould have bilateral relations with the Indian tribesas distinct sovereign entities, as it would with foreignnations and the States. See Merrion v. JicarillaApache Tribe, 455 U.S. 130, 153 & n.19 (1982).

In addition, this Court’s early jurisprudence madeclear that treaty provisions and federal statuteslimiting tribal powers and interests were to be con-strued narrowly to protect the tribes. See generallyCohen,. supra, § 2.02. These rules of constructionwere adopted in light of the trust relationshipbetween the tribes and the United States- a trustresulting from the tribes’ simultaneous dependencyand sovereignty. Id. § 2.02[2]. They retain theirvitality today. See, e.g., Minnesota v. Mille LacsBand of Chippewa Indians, 526 U.S. 172, 202-03(1999) ("Congress may abrogate Indian treaty rights,but it must clearly express its intent to do so"). Thecanons effect appropriate federal judicial deference totribal authority and to Congress’s ultimateresponsibility over federal Indian policy. See SantaClara Pueblo v. Martinez, 436 U.S. 49, 60 (1978) (ininterpreting a federal statute that arguably displacesinherent tribal sovereignty, "a proper respect both for

8tribal sovereignty itself and for the plenary authorityof Congress in this area cautions that we tread lightlyin the absence of clear indications of legislativeintent").

In sum, this Court has long understood Congress tohave plenary authority over Indian affairs, includingthe scope of tribal jurisdiction over nonmembers, seeLara, 541 U.S. at 205-07. But~ the tribes’ policepowers are not "federal powers created by andspringing from the [C]onstitution"; they are insteadinherent sovereign powers that "existed prior to the[C]onstitution." Talton v. Mayes, 163 U.S. 376, 382,384 (1896). Absent a clear treaty cession or contraryfederal law, the tribes remain "distinct politicalcommunities" and retain sovereignty over theirpeople and territory. See Worcester, 31 U.S. (6 Pet.)at 556-57, 561.

B. Under these principles, the tribes originallyretained significant authority over non-Indians foundin Indian country or engaged in relationships withtribal members. Since the Republic’s early days,however, Congress has exercised its power to regulateIndian affairs. In some instances, its actions havealtered the content of federal Indian policy withconsequences that have dramatically affected thescope of tribal sovereignty over both land andnonmembers. Philip P. Frickey, A Common Law forOur Age of Colonialism: The Judicial Divestiture ofIndian Tribal Authority Over Nonmembers, 109 YaleL.J. 1, 14-15 (1999).

The historical development that perhaps played thelargest role in the evolution of tribal authority overnonmembers occurred in the late 19th century, whenCongress "retreated from the reservation concept andbegan to dismantle the territories that it hadpreviously set aside as permanent and exclusive

9

homes for Indian tribes." South Dakota v. YanktonSioux Tribe, 522 U.S. 329, 335 (1998). The GeneralAllotment Act of 1887 (or "the Dawes Act") andrelated statutes allotted portions of reservation landover which the tribes had exercised dominion toindividual Indians, with "surplus" land opened tonon-Indian homesteading. Id. at 335-36. Beforeallotment, few non-Indians were present in "Indiancountry,"2 and the question of tribal authority toregulate non-Indians and othernonmembers onreservations rarely arose.

In 1934, Congress "formallyrepudiated" theallotment policy by passing theIndian Reorgan-ization Act, see id. at 339. That Act halted the vastlosses of tribal land that occurred during the allot-ment era.

The profound damage to tribal interests caused byallotment was never undone. Massive lands within"Indian country," are now owned by non-Indians andother nonmembers. See L. Scott Gould, The Con-gressional Response to Duro v. Reina: CompromisingSovereignty and the Constitution, 28 U.C. Davis L.Rev. 53, 122-46 (1994). This fact has resulted in asubstantial increase in tribal interaction with non-Indians and other nonmembers, raising significantquestions about the scope of tribal jurisdiction overtribal and member relationships with nonmembersand nonmembers’ conduct within the reservation.

C. In the modern post-allotment era, tribal civiljurisdiction over nonmembers may be based onexpress federal authorization or the tribes’ inherent

2 "Indian country" is, inter alia, "all land within the limits ofany Indian reservation under the jurisdiction of the UnitedStates government" and "dependent Indian communities" and"allotments." 18 U.S.C. § 1151 (1994).

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authority. This Court has routinely approved tribalcivil jurisdiction resulting from Congressionaldelegation. In United States v. Mazurie, 419 U.S. 544(1975), this Court unanimously held that a federalcriminal statute requiring all persons selling alcoholin Indian country to abide by state and tribal law wasa lawful delegation of regulatory authority to theTribe. Justice Rehnquist, speaking for the Court,explained that tribes are not "private, voluntaryorganizations,’" but "unique aggregations possessingattributes of sovereignty over both their membersand their territory." Id. at 557. And because tribesare government entities with their own "independentauthority of the subject matter," Congress lawfullyvested in the tribes "this portion of its own authority"to regulate Indian affairs. Id.

The scope of inherent tribal sovereignty overnonmembers has been the subject of evolution andsharper debate. The foundational precedent in thisarea is Williams v. Lee, 358 U.S. 217 (1959). There,the Court announced that Arizona’s courts lackedjurisdiction over a non-Indian’s claim against aNavajo seeking to collect for goods sold on thereservation. The Court held that permitting state-court jurisdiction over the non-Indian’s claim "wouldundermine the authority of the tribal courts overReservation affairs and hence would infringe on theright of the Indians to govern themselves." Id. at223. As Justice Black explained:

It is immaterial that respondent is not anIndian. He was on the Reservation and thetransaction with an Indian took place there. Thecases in this Court have consistently guarded theauthority of Indian governments over theirreservations. Congress recognized this authorityin the Navajos in the Treaty of 1868, and has

11

done so ever since. If this power is to be takenaway from them it is for Congress to do it. [Id.(citation omitted).]

The Court thus ensured that suits by non-Indiansagainst Indians concerning commercial relations inIndian country would fall within the exclusivejurisdiction of the tribal court, i.e., that the dispute inWilliams would be decided by tribal courts undertribal law. See id. at 222 (Navajo tribal courts areavailable to resolve "suits by outsiders against Indiandefendants"). The Court’s undergirding assumptionwas that tribal courts are a significant component ofinherent tribal sovereignty - that "self-governmentincludes having one’s own courts apply one’s ownrules of decision to disputes arising within one’s ownterritory." Frickey, supra, at 30. After Williams, wellover a decade passed before the Court againaddressed inherent tribal jurisdiction overnonmembers.

In Oliphant v. Suquamish Indian Tribe, 435 U.S.191 (1978), the Tribe prosecuted in tribal court a non-Indian living on its reservation for assaulting a policeofficer. The federal government clearly had juris-diction to prosecute this claim but declined to do so.The question presented was whether federaljurisdiction was exclusive or whether the Tribe hadconcurrent jurisdiction. This Court announced thatevolving federal common-law rules determinewhether and when tribal jurisdiction overnonmembers is "Dconsistent with their status" asdomestic, dependent nations. Id. at 208. Applyingthis standard, the Court held that tribal courts nolonger had criminal jurisdiction over non-Indians, butacknowledged that Congress had authority to restoresuch jurisdiction to the tribes. Id. at 208-12.

12In so holding, the Court relied in part on a

"commonly shared presumption of Congress, theExecutive Branch, and lower federal courts thattribal courts do not have the power to try non-Indians" for crimes. Id. at 206. Another criticalfactor was the United States’ interest in protecting itscitizens from "unwarranted intrusions on theirpersonal liberty." Id. at 210. The Court posited that"[b]y submitting to the overriding sovereignty of theUnited States, Indian Tribes... necessarily give uptheir power to try non-Indian citizens of the UnitedStates except in a manner acceptable to Congress."Id. The Court was particularly concerned that theIndian Civil Rights Act ("ICRA"), 25 U.S.C. § 1302,does not accord all of the Bill of Rights’ guarantees tocriminal defendants in tribal courts. See 435 U.S. at194 n.4 & 211.

That same concern caused this Court to rejecttribal-court criminal jurisdiction over Indians whowere not tribal members in Duro v. Reina, 495 U.S.676 (1990). Expressly distinguishing Williamsbecause it involved civil rather than criminaljurisdiction, Duro- like Oliphant- focused on theneed for protection of citizens’ personal liberty in aforum where the Constitution does not apply. See495 U.S. at 687; id. at 705 (Brennan, J., dissenting).See id. at 688 ("[t]he exercise of criminal jurisdictionsubjects a person not only to the adjudicatory powerof the tribunal, but also to the prosecuting power ofthe tribe, and involves a far more direct intrusion onpersonal liberties"). The Court thus concluded thatthe tribes’ inherent sovereignty no longer includedthe rightto exercise criminal jurisdiction over

13

nonmembers, including Indians, who committedcrimes on the reservation. Id. at 693-94.3

Critically, this Court has not extended the Oliphantrule to tribal civil jurisdiction over nonmembers. InWashington v. Confederated Tribes of the ColvilleIndian Reservation, 447 U.S. 134 (1980), the Courtrejected Washington’s contention that federal lawdisplaces the tribes’ inherent authority to tax theactivities or property of non-Indians. The Courtexplained that "[t]ribal powers are not implicitlydivested by virtue of the tribes’ dependent status."Id. at 153 (emphasis supplied). Instead, "[t]his Courthas found such a divestiture in cases where theexercise of tribal sovereignty would be inconsistentwith the overriding interests of the NationalGovernment." Id. at 153-54. With respect to taxationof non-Indians, the Court said:

[A]uthority to tax the activities or property ofnon-Indians taking place or situated on Indianlands, in cases where the tribe has a significantinterest in the subject matter, was very probablyone of the tribal powers under "existing law"confirmed by § 16 of the Indian ReorganizationAct of 1934. [Id. at 153.]

See also Morris v. Hitchcock, 194 U.S. 384 (1904)(upholding tribal taxes on nonmembers grazing cattleon land they owned within tribal territory).

D. Williams, Colville and Oliphant formed thebackdrop for the decision in Montana that governsthis case. In Montana, the Tribe had outlawed

3 Congress subsequently overrode in part the common-lawrule announced inDuro, restoring the tribes’ inherent sovereignpower to exercise criminal jurisdiction over nonmember Indianswho commit certain crimes on reservations. In Lara, 541 U.S.at 205-07, this Court confirmed Congress’s authority to do so.

14hunting and fishing by nonmembers including on thelands within the reservation owned in fee bynonmembers. The Court ultimately upheld theTribe’s civil jurisdiction over nonmembers huntingand fishing on tribal lands, but concluded that theTribe lacked such authority over nonmembers on"lands no longer owned by the tribe." 450 U.S. at564-65.

In doing so, this Court did not transport Oliphant’sban on tribal-court jurisdiction over nonmemberswholesale into the civil context. Rather, it recognizedtwo significant circumstances - critical to theeffective functioning of tribal governments and theircourts - in which the exercise of such jurisdiction isappropriate:

Indian tribes retain inherent sovereign power toexercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. [1] A tribe may regulate,through taxation, licensing, or other means, theactivities of nonmembers who enter consensualrelationships with the tribe or its members,through commercial dealing, contracts, leases orother arrangements. [2] A tribe may also retaininherent power to exercise civil authority overthe conduct of non-Indians on fee lands withinits reservation when that conduct threatens orhas some direct effect on the political integrity,the economic security, or the health or welfare ofthe tribe. [Id. at 565-66 (citations omitted).]

This Court cited four cases to illustrate the scope ofMontana’s first test. All involved nonmembers whoengaged in voluntary commercial transactions withthe tribes or tribal members, thereby submittingthemselves to tribal jurisdiction. See Hicks, 533 U.S.at 371-72. Confederated Tribes, 447 U.S. at 152-53,

15

involved nonmembers’ purchases of cigarettes from atribal outlet. Morris, 194 U.S. at 384, authorizedtribal regulation of ranchers grazing animals onIndian lands "under contracts with individualmembers of said tribe." Williams, as set forth supra,declared that tribal courts had "exclusive" juris-diction over a "lawsuit arising out of on-reservationsales transaction[s] between [a] nonmember plaintiffand member defendants." Strate v. A-1 Contractors,Inc., 520 U.S. 438, 457 (1997) (citing Williams, 358U.S. at 223). Finally, Buster v. Wright, 135 F. 947,949 (8th Cir. 1905), rejected a jurisdictional challengeto a tribe’s "permit tax" imposed upon nonmembersfor "the privilege.., of trading within [reservation]borders."

These cases provide significant "guidance... as tothe type of consensual relationship contemplated bythe first exception of Montana." Atkinson TradingCo. v. Shirley, 532 U.S. 645, 653 n.4 (2001); see alsoStrate, 520 U.S. at 457. They demonstrate thatMontana’s first test (i) covers "private commercialactors" who "voluntarily submitD themselves to tribalregulatory jurisdiction by the arrangements thatthey.., enterD into," Hicks, 533 U.S. at 372; (ii)treats as ’"inherent’" the tribes’ "authority... toprescribe the terms upon which noncitizens maytransact business within its borders,’" Strate, 520U.S. at 457 (omission in original) (quoting Buster, 135F. at 950); (iii) addresses the scope of tribal-courtjurisdiction, id. (describing Williams’ declaration ofexclusive tribal-adjudicatory jurisdiction over non-member merchant’s suit against tribal members); and(iv) does not require the express consent of non-Indians before tribes may exercise civil jurisdictionover them. These principles require affirmance inthis case.

16

E. Since Montana was decided, this Court hasaddressed the application of its first test in variouscircumstances. Three themes have emerged.

First, as already made clear, this Court hasconsistently reaffirmed that under Montana’s firsttest, tribes have civil jurisdiction over nonmemberswho are "private commercial actors" and who"voluntarily submitD themselves to tribal regulatoryjurisdiction by the arrangements that they (or theiremployers) entered into." Hicks, 533 U.S. at 372. Seealso Atkinson, 532 U.S. at 653 (same); Strate, 520U.S. at 457 (same). In each of these decisions, theCourt has cited and relied on Williams as anexemplar of the first Montana test, describing it as"declaring tribal jurisdiction exclusive over [a]lawsuit" by a nonmember bringing a civil claimarising out of a commercial transaction against atribal member. See, e.g., Strate, 520 U.S. at 457. Inthis context, the Bank’s arguments - that itsconsensual dealings with the Longs did not give riseto tribal-court jurisdiction and that the first Montanatest does not reach adjudication - are plainly wrong.

Indeed, since Montana, this Court has upheldvarious exercises of the tribes’ inherent authorityover the conduct of nonmember defendants on thereservation and in consensual, voluntary relation-ships with tribes and tribal members. See, e.g., NewMexico v. Mescalero Apache Tribe, 462 U.S. 324, 337(1983) (upholding tribal regulation of nonmembershunting and fishing on reservation); Kerr-McGeeCorp. v. Navajo Tribe of Indians, 471 U.S. 195, 200-01 (1985) (upholding tribal severance tax on mineralsextracted from reservation by non-Indian); cf.Merrion, 455 U.S. at 142 ("a tribe has no authorityover a nonmember until the nonmember enters tribal

17

lands or conducts business with the tribg’) (emphasissupplied).

Second, this Court has refused to bar tribal courtsfrom hearing civil cases against non-Indians, as it didwith criminal cases against non-Indians in Oliphant.In fact, the Court’s holding that a nonmembercontesting tribal-court civil jurisdiction must firstexhaust that claim in tribal court, see NationalFarmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845,855-56 (1985), would make no sense if tribal courtsalways lack jurisdiction over civil cases involvingnonmembers.

As this Court expressly said in National Farmers,"the reasoning of Oliphant does not apply to thiscase." Id. at 854. See id. at 855 ("the answer to thequestion whether a tribal court has the power toexercise civil subject-matter jurisdiction over non-Indians in a case of this kind is not automaticallyforeclosed"). The Court explained that

the existence and extent of a tribal court’sjurisdiction will require a careful examination oftribal sovereignty, the extent to which thatsovereignty has been altered, divested, ordiminished, as well as a detailed study ofrelevant statutes, Executive Branch policy asembodied in treaties and elsewhere, andadministrative or judicial decisions. [Id. at 855-56 (footnote omitted).]

The Court mandated that tribal courts resolve thequestion of their own jurisdiction "in the firstinstance," in part because "Congress is committed toa policy of supporting tribal self-government and self-determination." Id. at 856. This reasoning makesclear both that tribal courts possess civil jurisdictionin cases involving nonmembers, and that this type of

18civil jurisdiction is an important aspect of tribalsovereignty. See also Iowa Mut. Ins. Co. v. LaPlante,480 U.S. 9, 18 (1987) ("[t]ribal authority over theactivities of non-Indians on reservation lands is animportant part of tribal sovereignty") (citingMontana; Colville Indian Reservation, inter alia).

Finally, this Court has made clear that in applyingthe first Montana test, the nexus between thenonmember and the tribe, tribal members or triballands is significant. As the Court explained in Hicks,when nonmembers enter into ’"private consensual’relationships" "’with the tribe or its members,through commercial dealing, contracts, leases orother arrangements,’" that arrangement provides asufficient nexus for tribal civil jurisdiction. See 533U.S. at 371. See also Strate, 520 U.S. at 457(elaborating on the nexus required by "Montana’s listof cases fitting within the first exception"). Inaddition, tribal power to tax and otherwise regulate"non-Indians entering the reservation to engage ineconomic activity" has routinely been upheld. SeeConfederated Tribes, 447 U.S. at 153 (citing Buster v.Wright, inter alia). See id. at 152 ("[t]he power to taxtransactions occurring on trust lands and signifi-cantly involving a tribe or its members is a funda-mental attribute of sovereignty").4 As explained

4 The nexus between tribal-land regulation and reservation-land ownership has played a significant, but not dispositive rolein this Court’s analysis of tribal jurisdiction over nonmembersusing that land. See Hicks, 533 U.S. at 360 ("[t]he ownershipstatus of land, in other words, is only one factor to consider indetermining" tribal civil jurisdiction, albeit it is sometimes"dispositive"). See Brendale v. Confederated Tribes & Bands ofthe Yakiraa Indian Nation, 492 U.S. 408, 438-44 (1989)(Stevens, J., joined by O’Connor, J., announcing the judgment)(the tribe had authority to zone nonmember land in the area of

19

below, these recent iterations of Montana and thejurisdictional nexus it contemplates among tribes,their members and nonmembers plainly embrace therelationship between the Longs, their ranch, and theBank.

This Court’s post-Montana decisions, in sum,contain no hint that Montana’s tests should benarrowed as the Bank argues here. Nor hasCongress taken action suggesting that those testsshould be truncated or eliminated altogether. To thecontrary, as elaborated upon in the Amicus Brief ofthe National American Indian Court JudgesAssociation et al., Congress and the executive branchhave expressed strong support in the years followingMontana for tribal self-government and the tribalcourts in particular. If Montana was grounded in thecommon presumptions of the political branches andthis Court, then the developments since Montanastrongly counsel against eviscerating the Montanatests. And, as the next section demonstrates, any fairapplication of those tests supports the exercise ofjurisdiction by the Tribe’s courts in this case.

Deference to Congress, recognition of tribal self-government and the balancing of tribal and federalinterests are the doctrinal underpinnings of Montana.The Bank’s proposal - that tribes lack civil juris-diction over nonmembers absent express consent- isdivorced from the history and precedent that led toMontana, inconsistent with the context-specificanalysis mandated by the array of relevant consider-ations, and disrespectful of the tribes’ governmentalstatus.

the reservation that was largely Indian trust land, but lackedauthority to do so in areas largely owned by nonmembers).

2OII. NONE OF THE BANK’S ARGUMENTS

CASTS DOUBT ON THE EXERCISE OFTRIBAL-COURT JURISDICTION HEREUNDER MONTANA.

A. This Civil Dispute Is Not About AndDoes Not Arise On Non-Indian Land.

The Bank first argues that the Montana tests haveno applicatio.n here because this case involvesreservation land that was owned by a nonmember,the Bank. As the Longs have demonstrated, thisargument misapprehends the issue presented-whether the tribal courts had civil jurisdiction todecide the claim that the Bank engaged indiscrimination in the course of its consensual,commercial dealings with the Longs.

Thus, this case is not, as the Bank would have it,akin to a claim arising out of a tort physicallyoccurring on land held or controlled by a non-Indianor by the federal or state government (e.g., Strate) orto a tribal assertion of civil jurisdiction overtransactions among nonmembers occurring on suchland (e.g., Atkinson). Instead, this is a disputebetween tribal members (the Longs) and anonmember (the Bank) concerning a transaction thatwas an integral part of a longstanding commercialrelationship between these parties in which the BIAwas involved. This claim thus falls squarely withinthe ambit of tribal civil jurisdiction over nonmembersdescribed in Montana, 450 U.S. at 565-66.

NCAI will not repeat the detailed demonstration ofthis point by the Longs. Instead, NCAI will focus onhow the nature of the transaction here heightens thetribal interest in civil jurisdiction.

First, the transaction underlying the discriminationclaim involves the loss of tribal members’ ownership

21

of land within Indian country. Both as a historicalmatter and as a factor relevant to tribal sovereignty,this circumstance makes plain the nexus between thetransaction and tribal interests and self-government.It is no exaggeration to say that the post-settlementhistory of the tribes is a history centered on the lossof sovereignty and land. Conquest (resulting intreaties of cession) and allotment, described supra,caused the most substantial losses. Indeed, "[1]andspeculators and frontier settlers saw allotment as asure-fire scheme to open up Indian lands for moreproductive use and ultimate transfer to non-Indianowners." Cohen, supra, § 1.04, at 77. In 1887, whenthe Dawes Act was passed, the tribes held 138 millionacres; less than fifty years later, when allotmentended, only 48 million acres remained. Id. at 77-78.

Since the end of the allotment and assimilationeras, the federal government’s policy has been toprotect and foster tribal sovereignty and lands, withsubstantial federal statutory and regulatory schemesaddressing these subjects. See, e.g., Arnicus Brief ofthe National American Indian Court JudgesAssociation, et al. But, the critical point here is thatthe transaction that is the basis of the Longs’discrimination claim is one in which Indian historyand tribal sovereignty are uniquely implicatedbecause it involves the loss of tribal members’ landwithin Indian country.

Second, the role of the federal government, actingin furtherance of its trust obligation to the tribes inconnection with this transaction, supports the tribalcourts’ civil jurisdiction over this dispute. The IndianFinancing Act, 25 U.S.C. § 1451 et seq., authorizes anumber of BIA programs to promote development inIndian country, including the Indian GuaranteedLoan Program, which provides a guaranty or

22

insurance coverage up to and including 90 percent ofa loan to a tribe, tribal business or business entitieswith at least 51% Indian ownership for projects thatwill contribute to the tribal economy. See 25 C.F.R.§ 103.6. The loans must be those that would not bemade without the program. Id. § 103.4(d). TheBanks’ loans to the Longs, accordingly, would nothave been made - and thus the transaction that isthe subject of the tribal courts’ civil jurisdiction wouldnot have occurred - but for the Longs’ tribal statusand their ranch’s contribution to the tribal economy.This nexus between the transaction and tribalinterests militates strongly in favor of tribal-courtjurisdiction.

B. Tribal Courts Had Jurisdiction UnderMontana.

1. This Case Involves A Straightfor-ward Application of Montana’s FirstTest,

For two reasons, the Bank contends that this casedoes not fall within the first Montana test for tribaljurisdiction over nonmembers.

First, the Bank wrongly contends that the LongCompany is not a tribal entity. The discriminationclaim at issue was brought by the Longs, who areindisputably tribal members; and they, as well as theCompany, formed a commercial relationship with theBank, even guaranteeing the Company’s debt. App.A-10 to A-12.5 Two federal courts have concludedthat the Long Company is a tribal entity for purposesof this case (id. at A-5, A-7), a factual finding entitled

5 The Bank’s statement ttmt the Longs used the Company to

"shield [themselves] from personal liabglty," Bank Br. 34, isthus highly ~ron~c.

23

to deference under this Court’s two-court rule. SeeBerenyi v. District Dir., 385 U.S. 630, 635-36 (1967)(the Court generally will not "’undertake to reviewconcurrent findings of fact by two courts below’").

If more were .needed, the transaction was based onand occurred as a result of BIA loan guarantees andinsurance that were available because tribalmembers own more than 50% of the Company. Seesupra, at 21-22. The Bank’s suggestion that it hasnot "availed itself of the advantages of doing businesswith a member," Bank Br. 33, is belied by these facts.

Second, the Bank seeks to avoid the application ofthe first Montana test by arguing that it describesonly the scope of tribal "regulatory" jurisdiction overnonmembers, id. at 31, which is broader than tribaladjudicatory jurisdiction over nonmembers. Thisargument cannot withstand scrutiny.

Initially, as noted supra, this Court cited examplesof circumstances in which tribal courts satisfied thistest for tribal jurisdiction in Montana. See 450 U.S.at 565-66. Among these examples was Williams, 358U.S. at 223, a case involving not regulatory butadjudicatory jurisdiction. And, in National FarmersUnion, a case involving adjudicatory jurisdiction, theCourt noted that if it were to extend Oliphant to thecivil setting, it would have to forbid tribal courts fromever exercising civil jurisdiction over nonmembers,and this it declined to do. See 471 U.S. at 855-56.Finally, in Strate, this Court characterized Williamsas "declaring tribal jurisdiction exclusive over [a]lawsuit arising out of on-reservation sales transactionbetween [a] nonmember plaintiff and memberdefendants." 520 U.S. at 457. None of this is con-sistent with the Bank’s assertion that tribal courtslack jurisdiction over nonmembers under Montana’sfirst test.

24

Second, this Court has said that "[a]s to non-members,.., a tribe’s adjudicative jurisdiction doesnot exceed its legislative jurisdiction," id. at 453(emphasis supplied); but, surely, it does not fall shortof that subject matter either. See Cohen, supra,§ 7.01, at 598 n.12 ("[W]ith respect to a tribal court’ssubject matter jurisdiction ... it makes sense to viewthat power as reaching as far as the tribe’s legislativejurisdiction. Both legislative jurisdiction and subjectmatter jurisdiction are concerned with whether thesubject involved is properly within the authority of thegovernment in question.~") (emphasis supplied).

The argument that the tribe has civil-regulatorybut not civil-adjudicative jurisdiction makes neitherlogical nor practical sense. As a matter of practice, ifa tribe has civil-regulatory jurisdiction over the Bank,as the Bank concedes, that jurisdiction could beexercised either by an executive officer, with judicialreview available, or through litigation in courtbrought by the executive officer. Neither the federalnor the state courts, however, have jurisdiction toenforce or review tribal law. The only logical forumfor litigation concerning tribal regulation is a tribalcourt. If a sufficient nexus exists to warrant tribaljurisdiction in the first instance, then tribal-adjudicative jurisdiction must follow.

Thus, for example, if a nonmember is caughthunting on tribal land in violation of tribal civil law,the tribal game warden may seize the rifle as a civilforfeiture. Absent diversity jurisdiction (which is notavailable when a tribe is a party), the nonmembercould not litigate this forfeiture in federal or statecourt (Williams, 358 U.S. at 222-23). (If a federalcourt were to have diversity jurisdiction, the matterwould have to be stayed for exhaustion of tribalremedies, see LaPlante, 480 U.S. at 16.) The only

25

place he could seek judicial relief to get his rifle backwould be the tribal court (or some administrativeappeals process within the tribal executive branch,presumably subject to judicial review). In the samevein, where a tribe issues a comprehensive regulatoryregime governing consensual, commercial dealingsbetween nonmembers and the tribe (or its members),the enforcement of that regime would be a toothlessaffair without the availability of the tribal courtsystem. As a practical matter, without adjudicativejurisdiction, regulatory jurisdiction is largelymeaningless.

Nor is there any basis in logic for the Bank’s viewthat the first Montana test applies exclusively to"regulatory~’ jurisdiction, and that regulatory juris-diction somehow excludes adjudicatory jurisdiction."[C]ommon law rules administered by judges, likestatutes and regulations, create and define legalobligations." Riegel v. Medtro~ic, I~c., 128 S. Ct. 999,1012 (2008) (Stevens, J., concurring). Indeed, "it isthe essence of the common law to enforce duties thatare either at~rmative requirements or negativeprohibitions." Cipollo~e v. Liggett Group, I~c., 505U.S. 522, 504 (1992) (emphasis omitted) (pluralityopinion). In other words, far from being "world[s]apart," Bank Br. 36, statutes and regulations, andthe judicial enforcement of statutes, regulations andcommon law, all regulate. See also App. A-14 ("It]oftlaw is [simply another] means of regulating conduct")(citing W. Page Keeton et al., Prosser a~d Keeto~ or~Torts 25 (5th ed. 1984)).

This Court has clearly held that a state court’sentry of judgment on a state statutory or common-lawcause of action imposes state-law requirements onthe litigants. See, e.g., Riegel, 128 S. Ct. at 1008(common-law causes of action impose requirements

26on entities and thus are preempted when inconsistentwith federal statutes). That adjudicatory jurisdictionregulates litigants is clearest when the adjudicationenforces a statute or regulation. But, common-lawliability is also ’"premised on the existence of a legalduty,’ and a tort judgment therefore establishes thatthe defendant has violated a state-law obligation."Id. (quoting Cipollone, 505 U.S. at 522). "And, whilethe common law remedy is limited to damages, aliability award can be, indeed is designed to be, apotent method of governing conduct and controllingpolicy." Id. (internal quotation marks omitted)(quoting Cipollone, 505 U.S. at 521).

In essence, the Bank’s argument is that Montanashould be treated like a statute subject to a strictconstruction, and that the word "regulate" should begiven its narrowest conceivable interpretation andexclude adjudications that regulate. But this Courtdoes not "parse the text" of its opinions as thoughthey are "governing statute[s]:" Commissioner v.Bollinger, 485 U.S. 340, 349 (1988). See Hicks, 533U.S. at 371-72 (declining to treat Montana as astatute). The word "regulate" should be given itsnatural meaning - and the meaning clearly intendedby Montana - as embracing all forms in which thegovernment undertakes to establish and enforce thelegal rules governing behavior.6

6 The Bank’s attempt to use the Indian Commerce Clause tosupport its argument that "regulate" means only to enact lawsand regulations is far off the mark. Bank Br. 38. The Consti-tution refers solely to Congress, while Monta~ addresses tribalgovernment as a whole. Moreover, in exercising its authorityover the tribes, Congress can establish tribal courts or designatecourts to adjudicate clabns. Thus, Congress’s regulatory powerincludes the power to provide for adjudication.

27

2. Montana’s Second Test Also SupportsTribal Court Jurisdiction.

The Bank also urges this Court to reach a questionnot addressed by the courts below and to hold thatMontana’s second test does not apply. NCAIendorses the Longs’ showing that the Bank’s conductthreatens tribal integrity, economic security andwe]fare. Longs’ Br. 53-57. Amici will not repeat thatanalysis, but urges the Court to focus on oneimportant aspect of this test.

In Marbury v. Madison, 5 U.S. (1 Cranch) 137(1803), this Court declared that "[t]he government ofthe United States has been emphatically termed agovernment of laws, and not of men." Id. at 163. Ourgovernment warrants this "high appellation" insubstantial part due to its federal and state courtsystems. Although many tribal courts were initiallyestablished as part of the federal assimilation oftribes into the American mainstream, see generallyWilliam T. Hagan, I~dia~ Police a~d Judges:Experiments i~ Acculturatio~ a~d Control (1966),tribal judicial systems are now an importantcomponent of tribal "government[s] of laws" for manytribes; and those systems generally receive thepolitical and financial support of the United States.The Araicus Brief of the National American IndianCourt Judges Association, et al., makes this showingin detail.

Tribal legal systems with civil jurisdiction overnonmembers engaged in substantial, consensual,transactions and relationships with tribes and tribalmembers are crucial to tribal se]f-government. Triballegal systems have limited practical utility if theycannot resolve such disputes. Tribes cannot fostertribal economic and social policies, and they cannotact as true governments if they lack civil jurisdiction

28to implement and enforce their laws in the context ofsuch relationships. See generally Bethany R. Berger,Justice and the Outsider: Jurisdiction over Non-members in Tribal Legal Systems, 37 Ariz. St. L.J.1047, 1105-06 (2005). It is no exaggeration to say thatwithout tribal-court civil jurisdiction over non-Indians engaged in relationships or transactions thatgive them a nexus to the tribe and tribal lands, therewill be little respect either for tribal courts or tribalself-government. Id. at 1109-10. See also Hearing onConcerns of Recent Decisions of the U.S. SupremeCourt and the Future of Indian Tribal Governmentsin America Before the S. Comm. on Indian Affairs,107th Cong. 29 n.4 (2002) ("[restriction of tribal courtjurisdiction over non-Indians] creates resentment andprojects an image that non-Indians are above the lawin the area where they chose to reside or enter into.")(testimony of John St. Clair, Chief Judge of theShoshone and Arapahoe Tribal Court of the WindRiver Reservation), quoted in Berger, supra, at 1114.Montana certainly recognizes this point by citingWilliams as an illustration of test two, as well as testone.

III. NOTHING IN THE REALITY OF TRIBALCOURTS OR TRANSACTIONS AMONGTRIBES, TRIBAL MEMBERS AND NON-INDIANS REQUIRES THIS COURT TOFORBID TRIBAL-COURT JURISDICTION.

Montana authorizes but does not make exclusivetribal-court jurisdiction over consensual relationsbetween tribes, tribal members and nonmemberswith a sufficient nexus to Indian country. AfterWilliams and Montana, the general assumption ofnon-Indians doing business with tribes and tribalmembers in Indian country has been that tribalcourts enjoy jurisdiction over civil disputes arising

29out of those relationships and transactions. Thatassumption arises from Williams and was confirmedby Montana. The Bank clearly shared thatassumption, litigating in tribal court on manyprevious occasions and objecting to tribal-courtjurisdiction only when it lost below. See generallyAmicus Brief of Cheyenne River Sioux Tribe.

Under the Montana regime, parties havesuccessfully negotiated hundreds of thousands ofagreements and contracts that are essential toeconomic development in Indian country, but alsoallow tribal governments to protect important tribalinterests. The Bank nonetheless argues thatallowing the tribal courts to exercise jurisdiction overthe claims at issue is bad public policy because tribalcourts are underfunded; because the Constitutiondoes not apply and non-Indians lack notice of thesubstance of Indian law; and because transactionsamong tribes, tribal members and non-Indians do notimplicate tribal self-government.

First, as discussed above, there is no reason tobelieve that the political branches view the Montanatests as bad policy such that this Court, acting in itscommon-lawmaking capacity, should narrow oreliminate those tests. To the contrary, as the AmicusBrief of the National American Indian Court JudgesAssociation et al. demonstrates, Congress has shownconsiderable support for tribal courts in Montana’swake, affirming Montana’s delineation of civiljurisdiction in a variety of realms.

Second, the impact that affirmation of the tribalcourts’ jurisdiction would have on the Bank andsimilarly-situated businesses is vastly exaggerated.In any loan agreement or contract involving tribes,tribal members and nonmembers, the parties mayenter into agreements determining both the choice of

3Oforum and the choice of law governing that dispute.Such clauses are common in almost every formcontract and certainly in contracts negotiatedbetween commercial parties at arm’s-length.

In any event, thousands of contract relationshipsand other transactions take place in Indian countrybased on the premise that tribal courts will havejurisdiction unless the parties agree otherwise.Often, these contracts and loan agreements addresschoice of law and forum issues. The Montanaframework allows parties engaged in consensual,commercial transactions the freedom to negotiate thechoice of law and forum issues that best suit theirindividual requirements. Tribes and tribal memberscan decide when and the extent to which importanttribal interests are implicated by a transaction, whilebusinesses can decide whether questions of choice oflaw and forum must be resolved in a particular wayas a condition of entering into the transaction. Inthis setting, and in light of the consensual nature ofthe transactions at issue, there is no justification forworking the deep infringement of tribal sovereigntyand self-government urged by the Bank.

These kinds of negotiating options were certainlyopen to the Bank, which had been dealing with theLongs specifically and within Indian countrygenerally for many years under the Williams/Montana regime. Indeed, the Bank clearly believedthat its interests were best served by the tribal-courtforum in this case and in numerous others until itfailed to prevail here.

The Bank’s further arguments and assumptionsabout the inadequacy of tribal courts as comparedwith state and federal courts are demonstrablyincorrect and designed to engender prejudice againstthe former. The Bank would be hard pressed to

31explain in any serious way why it did not receivethorough and fair process below. As the Tribe’samicus brief carefully details, the Tribe operates amodern, serious court system that administers justicein an even-handed fashion. See generally ArnicusBrief of Cheyenne Sioux River Tribe. This is alsotrue of the Tribe’s sister courts around the Nation.See generally Arnicus Brief of the National AmericanIndian Court Judges Association, et al. The fairnessand efficacy of the Tribe’s courts no doubt explain theBank’s repeated utilization of those courts over thecourse of many years, as well as the fact that theBank has never objected to their jurisdiction untilnow. The Bank’s efforts to undo the Montana testsby casting unfounded aspersions on the Tribe’s courtsfind no support in Congressional policy and shouldnot be sanctioned by this Court.

The judgmentaffirmed.

32

CONCLUSION

of the court of appeals should be

Respectfully submitted,

RIY~Z A. KANJIKANJI ~ KATZEN, PLLC101 N. Main StreetSuite 555Ann Arbor, MI 48104(734) 769-5400

JOHN DOSSETTNATIONAL CONGRESS OF

AMERICAN INDIANS1301 Connecticut Ave.2nd FloorWashington, DC 20036(202) 466-7767

Counsel for Amici Curiae

March 19, 2002

CARTER G. PHILLIPSVIRGINIA A. SEITZ*SIDLEY AUSTIN LLP1501 K Street, N.W.

20005Washington, D.C.(202) 736-8000

* Counsel of Record