Rosser: Cautiously optimistic about court's perspective

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A strange thing happened at the U.S. Supreme Court April 14: The court seemed to take seriously Indian sovereignty. During oral argument on Plains Commerce Bank v. Long Family Land and Cattle Company Inc., et al., a case that involves the important question of whether tribes can exercise adjudicatory jurisdiction over disputes arising on Indian reservations when they involve non-Indians, the justices appeared willing to let stand a tribal court verdict against a non-Indian bank.

The tone and tenor of the oral argument was surprisingly pro-tribal jurisdiction, given the court's anti-Indian bias over the last 20-plus years. Indian law scholars and advocates are cautiously optimistic that the court will uphold tribal court jurisdiction, or at least will not be able to use the case to abolish such jurisdiction or establish a presumption against tribal jurisdiction.

The tone of the oral argument, to some extent, was driven by the facts of the case. The underlying dispute involves the predatory lending practices of a non-Indian bank in its dealings with the Long family on the Cheyenne River Sioux Reservation in South Dakota. The bank has a decade-long record of interaction with the Longs. Its family-owned, closely controlled corporation was in the business of supplying the Longs with working capital needed for their cattle operation. The bank derived benefits from BIA loan guarantees and worked with Cheyenne tribal officials as well as the Longs in its dealings on the reservation.

As the briefs to the court make clear, the bank failed to make emergency loans to the Longs, contributing to the death of the Long family's cattle in the cold of a South Dakota winter; the loss of the herd and its value made it impossible for the Longs to repay the bank's loan on their farm. Yet, the bank claimed that because formally the loan was with a corporation incorporated under South Dakota law, the bank was not subject to tribal court jurisdiction.

Fortunately, during oral arguments, even Justice Antonin Scalia - who has not been receptive to the arguments advanced on behalf of Indian sovereignty - had to acknowledge that given the lengthy dealings of the bank with the tribal and tribal members, ''there are many facts here that are favorable to your position.'' Those justices who might have been hoping that by granting cert they were going to be able to strike a blow against tribal courts were forced to resort to hypotheticals with facts less obviously in line with a straightforward application of prior precedent describing the scope of tribal judicial authority. The bank in many ways started out behind and stayed there throughout the oral argument, in part because of the talents of the attorney representing the Long family, David Frederick, who did an excellent job.

Coming out of the court after oral arguments, Indian advocates were as optimistic as they could be in advance of the court actually issuing an opinion. There were a few ominous signs: the newest members of the court, John Roberts and Samuel Alito, spent the hour asking questions seemingly at odds with tribal sovereignty, and other justices seemed somewhat bored by the whole experience. Justice Alito ended his questioning of the attorney for the bank by hinting at the rule he would adopt, ''that merely entering into consensual commercial transactions'' is not enough for tribes to have jurisdiction. But all that said, perhaps - and just perhaps - Plains Commerce Bank will end the dry spell Indian advocates have had in their arguments before the U.S. Supreme Court.

However, the court's voice is not the only one that should be heard regarding tribal jurisdiction over non-Indians who have engaged in business on reservations. As the advocates for the Long family made clear during the oral argument and in their briefs, tribal sovereignty is not merely something benefiting tribes; it also reflects the policies of the legislative and executive branches. After the court limited tribal jurisdiction over non-member Indians in Duro v. Reina, tribal advocates responded by successfully pushing for congressional recognition of tribal jurisdiction, accomplished through the ''Duro fix.'' In Montana v. United States, the court defined the types of situations in which tribes have authority over non-Indians. Since then, academics have batted around the idea of a similar ''Montana fix,'' but little has been done to date.

The fact that the justices can rightly point out that the court has read the Montana exceptions narrowly indicates the need for congressional legislation supporting tribal jurisdiction over non-Indians. In prior cases, the court majority failed to recognize the nature of tribal life and the connection and impact non-Indians can have with and on reservations. With lobbying and leadership from tribes, Congress could and should play an important role correcting the court's narrow perspective on tribal jurisdiction.

Ezra Rosser teaches federal Indian law at American University Washington College of Law, where he is an assistant professor.