Denying Sovereignty: The Louisiana Supreme Court?s Rejection of the Tribal Exhaustion Doctrine

• Author: Carey Austin Holliday
• Pages: 1339-1362

Denying Sovereignty: The Louisiana Supreme Court’s

Rejection of the Tribal Exhaustion Doctrine

INTRODUCTION

In its recent decision in Meyer & Associates, Inc. v. Coushatta

Tribe of Louisiana, the Louisiana Supreme Court declined to require

the application of the Tribal Exhaustion Doctrine (the “Doctrine”) in

Louisiana state district courts.1 The Doctrine is a federal

jurisprudential rule that applies when a tribal court has a claim of

jurisdiction over a dispute.2 It requires federal courts to abstain from

hearing the case until the tribal court has determined whether it can

properly retain jurisdiction over the matter.3 The effect of this ruling

by the Louisiana Supreme Court is that tribal courts will be denied

the ability, in many instances, to determine questions related to

tribal sovereign immunity. The United States Supreme Court has not

yet had the occasion to determine whether the Doctrine is required

of state courts, and several states have reached different conclusions

as to whether their courts will be required to apply the Doctrine.4

Upon further examination of federal common law, as well as strong

prudential considerations in favor of the Doctrine’s application, it

becomes apparent that the Louisiana Supreme Court erred in

declining to apply the Doctrine to Louisiana state district courts.

This Note will analyze the Louisiana Supreme Court’s decision

not to follow the Tribal Exhaustion Doctrine in Meyer. The first part

of this Note will recount the history of the Tribal Exhaustion

Doctrine and its status in both federal and state courts. The second

part will discuss the decision in Meyer and will summarize the

analysis of both the majority and dissenting opinions. The third part

will discuss the Louisiana Supreme Court’s duty, under the

Supremacy Clause of the U.S. Constitution, to apply the Doctrine to

Louisiana courts.5 The fourth part will argue that, in addition to the

Louisiana Supreme Court’s obligation under the Supremacy Clause,

a careful consideration of prudential factors, as well as state and

federal policies in favor of tribal sovereignty and self-determination,

should have led the court to require that lower Louisiana state courts

apply the Tribal Exhaustion Doctrine to disputes like Meyer.

Copyright 2011, by CAREY AUSTIN HOLLIDAY.

1. Meyer & Assocs., Inc. v. Coushatta Tribe of La., 992 So. 2d 446, 452

(La. 2008), cert. denied, 129 S.Ct. 1908 (2009).

2. Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845,

856 (1985).

3. Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15 (1987).

4. See discussion infra Part I.B.

5. U.S. CONST. art. VI.

1340 LOUISIANA LAW REVIEW [Vol. 71

I. THE TRIBAL EXHAUS TION DOCTRINE

A. The Doctrine in General

Native American tribes are characterized by the United States

Supreme Court as being “domestic dependent nations.”6 They are

“distinct political communities, having territorial boundaries,

within which their authority is exclusive.”7 In recognition of its

responsibility to these domestic dependent nations, Congress has

made efforts to ensure that tribal sovereignty is both maintained

and respected.8 Tribal courts play an important role in sustaining

tribal sovereignty, and the federal government took steps to ensure

their development.9 Native American tribes retain the ability to

govern their lands and tribe members, provided that there is no

federal statute or treaty restricting the exercise of that authority.10

Necessarily, then, Native American tribes and their courts “occupy

a unique status under our law.”11 Because of this unique position,

tribes often find themselves caught in a power struggle between

tribal, federal, and state governments.12

In response to problems that the tribes’ unique legal status

poses, federal courts inventively created a set of jurisdictional rules

to apply in disputes involving both members and non-members of

a tribe. One such rule is the “Tribal Exhaustion” or the

“Exhaustion of Tribal Remedies” Doctrine, which was first

announced by the U.S. Supreme Court in National Farmers Union

v. Crow Tribe of Indians.13 The Doctrine requires that, in situations

where a tribal court has a claim of jurisdiction that has been

challenged, the tribal court will be the first institution with the

opportunity to evaluate the basis upon which the challenge has

been made.14 Thus, the Doctrine requires that federal courts stay

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

7. Worchester v. Georgia, 31 U.S. (6 Pet.) 515, 557 (1832).

8. See Iowa, 480 U.S. at 14.

9. Id.

10. Id.

11. Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845,

851 (1985).

12. Robert D. Cooter & Wolfgang Fikentscher, Indian Common Law: The

Role of Custom in American Indian Tribal Courts (Part I of II), 46 AM. J. COMP.

L. 287, 293 (1998).

13. 471 U.S. 845.

14. See id. at 856; see also Ninigret Dev. Corp. v. Narragansett Indian

Wetuomuck H ous. Auth., 207 F.3d 21, 31 (1st Cir. 2000) (“[W]hen a colorable

claim of tribal court jurisdiction has been asserted, a federal court may (and

ordinarily should) give the tribal court precedence and afford it a full and fair

opportunity to determine the extent of its own jurisdiction . . . .”).