CHAPTER 6 LITIGATION WITH INDIANS
| Jurisdiction | United States |
(Feb 1989)
LITIGATION WITH INDIANS
Sherman & Howard
Denver, Colorado
TABLE OF CONTENTS
Page
I. INTRODUCTION
II. EXHAUSTION OF TRIBAL REMEDIES
A. The National Farmers Decision
B. The Iowa Mutual Decision
C. Exceptions to Exhaustion Under National Farmers and Iowa Mutual
1. The "Futility" Exception
2. The "Patently Violative of Express Jurisdictional Prohibitions" Exception
3. The "Bad Faith/Desire to Harass" Exception
D. Scope of Exhaustion Under National Farmers and Iowa Mutual and Other Possible Exceptions
E. Exhaustion or Abstention?
F. Federal Court Review Over Tribal Court Jurisdictional Decisions
III. INDIAN TRIBAL SOVEREIGN IMMUNITY
A. Scope and Origin of the Doctrine
B. Waivers of Tribal Sovereign Immunity
C. Exceptions to Tribal Sovereign Immunity
IV. COMITY AND FULL FAITH AND CREDIT FOR TRIBAL COURT DECISIONS
A. Background
B. Recognition of Tribal Decisions
V. CONCLUSION
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I. INTRODUCTION
The federal judiciary is a significant driving force for creating and shaping the contours of modern Indian law and policy. Beginning over 150 years ago with Chief Justice Marshall's famous trilogy of opinions,1 federal courts, especially the United States Supreme Court, have developed a substantial and complicated body of decisional law pertaining exclusively to American Indians.2 In many ways, there is no other body of law quite like federal Indian law. It is a unique blend of constitutional doctrine, international law and policy and raw American history. It embodies the often bitter struggle to strike a consistent, honorable and egalitarian balance of competing Indian and non-Indian interests.
It is of course true that, in enacting countless laws pertaining to Indians and Indian lands, the national Congress has played (and indeed still continues to play) an extremely vital role in the development of Indian law and policy. Congress possesses full power to legislate in every aspect of Indian affairs. Yet in spite of this power and the plethora of
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federal Indian law statutes, Congress has only touched upon some of the most important areas of modern Indian law, such as the scope of tribal civil jurisdiction over non-Indians.3 As a result, many of the rules concerning tribal civil jurisdiction have been carved by the judiciary on a case-by-case basis. Thus, the importance of litigation involving both tribes and individual Indians cannot be underestimated.
In the field of natural resource development on Indian lands, litigation has strongly influenced law and policy. For example, tribal authority to tax mineral development from within reservations was cast in stone with the Supreme Court's 1982 decision in Merrion v. Jicarilla Apache Tribe.4 About three-quarters of a century earlier, the Supreme Court decided Winters v. United States,5 which, along with the 1963 decision in Arizona v. California,6 continues to be a major influence on western water law. Future Indian law and policy concerning natural resource development will undoubtedly continue to be created and shaped in the courtroom. Although such litigation often results in a lack of consistent precedent, it will remain as an important breeding ground for new Indian law doctrine.
As a general matter, however, litigation is often costly and time-consuming. This is especially true in Indian law, as often times final resolution of cases involving matters of national Indian policy must occur in the United States Supreme Court. As will be seen in the discussion of cases in this paper, even the seemingly less important matters involving simple commercial dealings with Indians can turn into major pieces of litigation in the Supreme Court. Accordingly, negotiated settlement and compromise should always be explored first. Litigation with Indians should only be a last resort, for it is fraught with traps and pitfalls for the unwary and uniformed.
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This paper explores two of the most significant issues that must be confronted in any modern Indian law litigation: (1) exhaustion of tribal remedies; and (2) sovereign immunity. Since the importance of the former issue has been growing almost exponentially during the last two years, it will receive greater emphasis here. The discussion that follows will analyze the doctrinal law and, through this analysis, will provide guidance on how to deal with these difficult litigation issues when confronted with them. As part of the discussion, information on how and when each issue typically arises during litigation is also presented. Finally, the paper briefly considers the recurring topics of comity and full faith and credit for tribal court judgments.
II. EXHAUSTION OF TRIBAL REMEDIES
A. The National Farmers Decision
On June 3, 1985, the Supreme Court decided the case of National Farmers Union Ins. Cos. v. Crow Tribe of Indians.7 The decision held that the federal court plaintiff, a non-Indian, should first exhaust available tribal remedies before initiating a federal lawsuit to challenge the Crow Tribal Court's prior exercise of jurisdiction over the non-Indian. As a general matter, such an exhaustion requirement was hardly new to Indian law. Seven years earlier, the Supreme Court confirmed in Santa Clara Pueblo v. Martinez8 that habeas corpus relief was the exclusive federal remedy for alleged violations of the 1968 Indian Civil Rights Act.9 Stated differently, before bringing a federal suit under the Indian Civil Rights Act challenging
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tribal criminal proceedings, a litigant must first exhaust all available tribal court remedies.10
Given the exhaustion requirement under the Indian Civil Rights Act, the National Farmers decision at first might not seem to establish any new and exciting Indian law precedent. But, we have only begun to experience the depth of importance enveloped in the National Farmers decision. The ultimate scope of National Farmers exhaustion is broader than that in Santa Clara Pueblo v. Martinez. Martinez involved an intra-tribal dispute over internal discriminatory tribal membership regulations. National Farmers involved an Indian minor's dispute with non-Indians and their property on the reservation. Martinez is jurisdictional, while National Farmers exhaustion is a matter of comity. National Farmers is not limited to actions under a particular federal statute for review of tribal criminal convictions. Indeed, it has the potential to encompass virtually every type of civil action or suit arising within Indian country.11 In order to understand this new doctrine of exhaustion of tribal remedies, the best place to begin is with the facts underlying the National Farmers decision itself.12
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The National Farmers case originally arose on the Crow Reservation when a Crow Indian minor was struck by a motorcycle in the parking lot of a local state elementary school. The State of Montana owned the surface, while the Crow Tribe owned the underlying minerals. The Indian minor initiated a civil lawsuit in Crow Tribal Court against the non-Indian school district, a political subdivision of the State of Montana. The school district never appeared in Tribal Court and a default judgment was entered against it. The school district's insurer, National Farmers, was never notified of the Tribal Court action until after the default was entered.
National Farmers thereafter filed suit in Federal District Court to enjoin enforcement of the Crow Tribal Court judgment. As grounds for the requested relief, National Farmers argued that the Tribal Court lacked jurisdiction over the non-Indian school district. The District Court agreed and granted the injunction. A divided panel of the Ninth Circuit reversed, with the majority holding that the District Court's exercise of federal jurisdiction could not be justified on any constitutional, statutory or common law grounds.13 National Farmers then applied for certiorari to the United States Supreme Court.
After the District Court injunction was vacated by the Ninth Circuit, Crow tribal officials levied on some of the school's property and scheduled a sale to satisfy the default judgment. On the day of the sale, the school district
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voluntarily appeared in Tribal Court in an "eleventh hour" attempt to set aside the default and enjoin the sale. The Tribal Court did not grant the requested relief, but postponed the sale and indicated it would entertain a proper motion to set aside the default. The very next day, Justice Rehnquist granted a temporary stay and the Supreme Court ultimately reviewed the case.
In rare unanimous form, the Supreme Court reversed the judgment of the Ninth Circuit, and thus upheld the District Court's exercise of federal jurisdiction. "The question whether an Indian tribe retains the power to compel a non-Indian property owner to submit to the civil jurisdiction of a tribal court ... is a 'federal question' under [28 U.S.C.] §1331."14 Such an issue simply cannot be resolved without reference to and reliance upon federal statutory and common law.
Having established the basis for federal jurisdiction in the case, the Supreme Court next turned to the ultimate question of the Crow Tribal Court's exercise of civil subject-matter jurisdiction over the non-Indian school district. As a starting point, the Court rejected the argument that the rule in Oliphant v. Suquamish Indian Tribe,15 which precludes all tribal criminal jurisdiction over non-Indians, should be extended to civil actions like the one before the Court.16 The Court then set forth its guidelines for analyzing the crucial issue of tribal court civil jurisdiction over non-Indians:
[T]he existence and extent of a tribal court's jurisdiction will require a careful examination of tribal sovereignty, the extent to which that sovereignty has been altered, divested, or diminished, as well as a detailed study of...
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