Friday, February 15, 2008

Tribal Supreme Court Project Update

Washington D.C.-In a major development, on January 4, 2008, the Supreme Court granted review in Plains Commerce Bank v. Long Family Land and Cattle Company, No. 07-411, to review a decision by the U.S. Court of Appeals for the Eighth Circuit which held that the Cheyenne River Sioux Tribal Court has jurisdiction over claims by tribal members against a non-Indian bank doing business on the reservation. The question presented by the petitioner, Plains Commerce Bank, is: “Whether Indian tribal courts have subject matter jurisdiction to adjudicate civil tort claims as an ‘other means’ of regulating the conduct of a nonmember bank owning fee-land on a reservation that entered into a private commercial agreement with a member owned corporation.” Throughout the proceeding in the federal courts, the Bank has only challenged the tribal court’s jurisdiction over the discrimination (tort) claim, leaving the breach of contract and bad faith claims unchallenged.

NARF is representing the Long family as pro-bono co-counsel before the Supreme Court and the Project is working with co-counsel in the preparation of the merits brief. The Project is also working with the attorneys representing the Cheyenne River Sioux Tribe, NCAI and NAICJA and others to develop a tribal amicus brief strategy in support of affirming tribal court jurisdiction. The Bank’s opening brief is due on February 14, 2008, and the Long family’s response brief is due March 12, 2008. Oral arguments will be heard on April 14, 2008.

The Project is closely monitoring the Carcieri v. Kempthorne, a case which involves another challenge to the Secretary’s authority to take land into trust for the benefit of Indians and Indian tribes and is currently pending before the Court on a petition for cert. The case is scheduled for conference next Friday, February 22, 2008. The Tribal Supreme Court Project has also been busy preparing amicus (“friend of the court”) briefs in two important cases the Court is reviewing that have serious implications for American Indians and Alaska Natives: Crawford v. Marion County Election Board (challenging the constitutionality of state voter identification laws which require voters to show state or federal photo identification as a requirement to vote) which was argued on January 9, 2008; and Exxon Shipping Company v. Baker (defending award of punitive damages against Exxon for destruction of subsistence fishing and hunting as result of Exxon Valdez oil spill) which will be argued on February 27, 2008.

For more information and for copies of briefs and other materials for each of the cases listed in the Update are available on the NARF website at http://www.narf.org/sct/index.html. The purpose of the Tribal Supreme Court Project is to strengthen tribal advocacy before the U.S. Supreme Court by developing new litigation strategies and coordinating tribal legal resources, and to ultimately improve the win-loss record of Indian tribes. The Project is staffed by attorneys with the Native American Rights Fund (NARF) and the National Congress of American Indians (NCAI) and consists of a Working Group of over 200 attorneys and academics from around the nation who specialize in Indian law and other areas of law that impact Indian cases, including property law, trust law and Supreme Court practice.