In Plains Commerce Bank, the plaintiffs were members of the Cheyenne River Sioux tribe who were leasing land within the reservation boundaries from the defendant bank. The plaintiffs had an option to buy the land but were financially unable to exercise the option. They attempted to renegotiate the terms without success. When the bank sold the property to non-tribal members, the plaintiffs sued in tribal court, claiming that the bank discriminated against them by offering them less favorable terms on the sale than were offered to the actual buyers. (They also raised tort and contract claims not before the Supreme Court). As is often true, the Court decided the question of tribal court jurisdiction on purely formalist grounds; the case turned on the status of the land and the parties. Because the bank was not a tribal entity and owned the land underlying the claim in fee simple, the Court held that the tribe did not have any interest in the identity of the owner of the land and as a result, the tribal court lacked jurisdiction. By contrast, if the land had been tribal land or if the dispute involved only tribal members, tribal court jurisdiction would have been clear.

There is a lot wrong with this decision. First, everyone agrees that under Montana v. United States, tribes "may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements." (This is sometimes called the "first Montana exception"). The exception should allow tribes to enforce a non-discrimination norm against those who contract with tribal members. Moreover, the Court’s opinion has a simple factual flaw. The Court held that the tribe lacks any interest in who owns land within reservation boundaries. That conclusion is at odds with the long history of the interaction between tribal members and non-members– tribes are deeply concerned with the ownership and use of lands within reservation boundaries. This interest is especially strong in cases involving not just land ownership, but discrimination against tribal members in favor of non-members. You can see this simply by looking at how this land ended up being owned in fee simple. Ownership of land by non-tribal members within reservation boundaries is very common. In a deliberate attempt to eliminate tribes, Congress passed the 1887 General Allotment Act which removed tribal land from its traditional trust status and allotted small parcels in fee simple to tribal members while declaring the rest of the land surplus and turning it over to settlement by non-tribal members. By the time the Act was repealed in 1934, many of the allotments had been lost to non-members, leading to a checkerboard pattern of land ownership. Small parcels of land owned in fee simple can surround and be surrounded by tribal land. (A map showing this checkerboarding on the South Dakota Rosebud Reservation is available here.). As a result, having jurisdiction turn on the status of the land causes serious headaches for tribes.

What I want to consider, though, is the larger question of how we ended up on this path. If you teach Civil Procedure, this entire approach of determining jurisdiction based on land ownership and party identity should sound strange and outdated. This method is far more like Pennoyer than International Shoe. So what happened? The answer is that jurisdiction in Indian Country is complicated and often unrelated to jurisdiction in other contexts. I'll argue in my next post that the Court took this road as a result of deep and unfair assumptions about the nature of tribal courts.