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.1The Doctrine is a federal

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

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

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

properly retain jurisdiction over the matter.3The 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 furtherexamination 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

decliningto apply the Doctrine toLouisiana 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 recountthe history of the Tribal Exhaustion

Doctrine and itsstatus in both federal and state courts. The second

part will discuss the decision in Meyerand 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.5The fourth part will argue that, in addition to the

Louisiana Supreme Court’sobligation under the Supremacy Clause,

a careful consideration of prudential factors, as well as stateand

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

should have led the courtto require that lower Louisiana state courts

apply the Tribal Exhaustion Doctrine to disputes likeMeyer.

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. Seediscussion infraPart 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 Americantribesare characterized by the United States

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

“distinct political communities, having territorial boundaries,

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

responsibility to these domestic dependent nations, Congress has

made efforts to ensure thattribal sovereigntyis both maintained

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

tribal sovereignty, and the federal government took steps to ensure

their development.9Native 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 tribesand their courts“occupy

a unique status under our law.”11Because 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 thetribes’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, whichwas first

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

v. Crow Tribe of Indians.13The 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.14Thus, 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. SeeIowa, 480 U.S.at14.

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 alsoNinigret 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. . . .”).