Tribal Court Jurisdiction (III)
Over the last two days, I’ve been arguing that the Supreme Court’s decision in Plains Commerce Bank was fundamentally misguided and arises out of the assumption that all tribal courts are identical and are biased against non-members.
If you see the doctrine as primarily about the question of fairness to non-members, you are naturally led to the factual question: is there anything in tribal court practice that is fundamentally unfair for non-tribal litigants? A very nice general background of modern tribal court practice with a specific focus on the Navajo Nation is outlined in one of the amicus briefs, so I won’t repeat it here. Focusing in on what happened in this case, though, you see a procedure very similar to what you might see in state or federal court. The Cheyenne River Sioux Tribe has incorporated both the Federal Rules of Civil and Appellate Procedure by statute. The bank had the option (although it declined to exercise it) to request non-tribal members to serve on the jury. After the trial court issued a decision, the case was reviewed by an independent appellate body. Moreover, the bank had a history of successful prior litigation in the tribal court against tribal members.
The Chief Justice’s opinion relies on the fact that the lower courts viewed the claim as “novel” and arising from “Lakota tradition as embedded in Cheyenne River Sioux tradition.” This statement is clearly designed to make the tribal law appear foreign and incomprehensible. In fact, the tribal court of appeals was making a conscious effort to apply classic common law techniques to develop tribal law and have it mirror and draw on principles of federal and state law. Here’s the language about tradition in its original context.
While there is no express tribal ordinance creating a civil cause of action based on discrimination, there are nevertheless at least two other sources of tribal law that do recognize such a cause of action. They are tribal common law and the Cheyenne River Sioux Law and Ordcr Code § 1-4-3 which confers jurisdiction on
the trial court over claims arising out of “tortious conduct.” Since it is well understood that a claim based on
discrimination essentially sounds in tort, jurisdiction over “tortious conduct” necessarily includes jurisdiction over
Plaintiffs’ discrimination claim. In addition, there is basis for a discrimination claim that arises directly from Lakota
tradition as embedded in Cheyenne River Sioux tradition and custom. Such a potential claim arises from the existence of Lakota customs and norms such as the traditional Lakota sense of justice, fair play and decency to others,” Miner v. Banley, Chy. R. Sx. Tr. Ct. App., No. 94-003 A, Mem. Op. and Order at 6 (Feb. 3, 1995); and “the Lakota custom of fairness and respect for individual dignity.” Thompson v. Cheyenne River Sioux Thbal Board (~lPolice Commissioners, 23 ILR 6045, 6048 Chey. R. Sx. Tr. Ct. App. (1996). Such notions of fair play are core ingredients in federal and state definitions of discrimination. Therefore a tribal based cause of action grounded in an assertion of discrimination may proceed as a “tort” claim as defìned in the Cheyenne River Sioux Tribal Code, as derived fì’om Tribal tradition and custom, or even from the federal ingredients defined at 42 U.S.C. § 2000-2001.
The court follows this text with a footnote reading “Note this last theory is not the pursuit of a federal cause of action in tribal court like the 42 U.S.C. § 1983 claim in Nevada v. Hicks, but that of a “borrowing” of federal law to
stand in or amplify tribal law where it is necessary. See, e.g.. Cheyenne River Sioux Tribal Law and Order Code, Title VII Rule 1 (d).” (The tribal court opinions in the case can be found here. If you haven’t read tribal court opinions and are interested in these issues, they are worth a look.). Because the tribal court was trying to align tribal law with federal and state law, the Supreme Court’s analysis is here is quite flawed.
None of these factors shoudl decide the case standing alone, but in combination, the bank seems to have no reason to complain about the fairness of the process here. Of course, a case by case fairness analysis is far more complicated than drawing lines based on land ownership, but it is worth the effort. If fairness is the central concern, it hardly makes sense to treat all tribes as identical to each other but different from all other courts.