WASHINGTON - During oral arguments in the case of Plains Commerce Bank v. Long Family Land and Cattle Co., Supreme Court Justice Antonin Scalia found ;'a smell of dealing with Indians,'' a jocular reference to ''consensual relations'' with the Cheyenne River Sioux Tribe that subjected the bank to its courts.
But in overturning lower courts to deliver a verdict in favor of the bank, Chief Justice John Roberts found Indians tangential to the guiding facts in the case, and Scalia joined him. The 5 - 4 vote reversed an award of monetary damages and a land purchase right to Ronnie and Lila Long. To the consternation and dismay of Indian law advocates, it also overruled a tribal court's assumption of jurisdiction to adjudicate the sale of on-reservation, non-Indian-owned fee land - fee land signifying in law the unrestricted inheritance rights that go with it. The contrast with trust land, where inheritance can be restricted at will by tribal government, is clear.
In short, Roberts wrote, non-Indian fee land has ceased to be tribal land, so tribes can't regulate its sale as tribal land.
In an opinion unlikely to harm his reputation in mainstream law for concise legal reasoning, Roberts singled out an overlooked but all-important fact: though Long Family Land and Cattle Co. was Indian-owned, the fee land at issue had been deeded to a non-Indian bank by a non-Indian owner, the late Kenneth Long. In the chief justice's view, joined by the majority, that fact liberated the court from settling any question beyond whether tribes possess authority to regulate the sale of non-Indian-owned fee land, even within the exterior boundaries of the reservation. The Indian General Allotment Act extinguished the authority; and though the Indian Reorganization Act of 1934 ended the allotment of tribal lands, it did not restore tribal regulatory authority over the sale of non-Indian-owned fee land.
Therefore the original tribal court decision in Long, though affirmed in lower courts, could not stand in the majority view.
The Indian General Allotment Act, also known as the Allotment Act or the Dawes Act (after the sponsoring congressman) or the Dawes Severalty Act, is pure poison throughout most of Indian country, where it is viewed as an aggrandized system of dispossession, leading to vast takings and losses of tribal land. A presumably innocent introductory clause in the Roberts opinion, ''Thanks to the Indian General Allotment Act of 1887,'' will strike a vast majority of Indians as strange language indeed.
Gavin Clarkson, a law professor in transition from the University of Michigan to the University of Houston, where he will teach in the fall, couldn't abide the court's decision.
''This is another in a series of decisions where the court just made it up.''
He derided the ruling's reliance on precedent cases that he considers ill-reasoned, and asked when the Supreme Court is going to take up Worcester v. Georgia, 1832, in which Chief Justice John Marshall affirmed the precedent of precedents for Indian country: ''The Cherokee Nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force.''
Marshall recognized limiting conditions to his statement, and the saturating racism of the age eventually seized upon them to overcome the unwelcome home truth of Marshall's precedent ruling, Clarkson said; yet the Supreme Court still hangs its hat on the racist reasoning of such later ''precedents.''
''Dred Scott and Plessy v. Ferguson were racist precedents,'' he said, referring to Supreme Court findings that reduced slaves to chattel - mere property - and that enshrined ''separate but equal'' racism as reasonable social doctrine. ''At some point, racist precedents need to be overturned.''
In a dissenting opinion, Justice Ruth Bader Ginsburg insisted that the sale of land is an ''activity'' on land and so within the definition of ''consensual relations'' that would properly subject the bank to tribal court jurisdiction. The majority found the distinction between ''activities'' on land and the sale of land well-established in law; but in any case, Roberts wrote, fee land that is owned by non-Indians is not tribal land, and its sale is not subject to tribal regulation.
Even Clarkson agreed that the court did not weigh in against tribal sovereignty in a sweeping way, as some had feared it would. ''The holding is bad but narrow.''
The bank has stood accused of predatory lending to the Longs only since 2007, the eighth year of litigation, said attorney David Von Wald. (Von Wald Law Firm represents the bank.) Ginsburg seemed to lend credence to the charge of predatory lending in her dissent, writing, ''Eventually, the bank collected from the BIA [in loan guarantees] almost $400,000, more than 80 percent of the net losses resulting from its loans to the Longs.''
''That is a hundred percent wrong,'' Von Wald said. Following default by the Longs, the bank put in a loss claim to the BIA for approximately 80 percent of $400,000.
''They didn't receive that amount, and the amount they did receive can't be disclosed'' - a BIA stipulation. ''I can say they didn't receive anything close to that.''
Of the impression that the bank willingly entered tribal court to pursue defaulted borrowers until the court ruled against it, Von Wald said that, too, is wrong. The bank entered tribal court to repossess automobiles because tribal law forbids so-called ''self-help'' repossessions, he said, adding that it didn't view permission from tribal court to repossess on the reservation as a win.
The concepts of sovereignty, predatory lending, consensual relations, jurisdiction and company have circled the case in the courts. But the facts on the ground suggest that a concept as old as banking and agriculture should get some attention too - the concept of risk.
As a calculation of risk and lending, Von Wald said, the bank took a variety of steps, following Kenneth Long's death in 1995, that were intended to lower the Longs' debt burden. It also entered into a land-lease with option to purchase arrangement with the Longs, he said.
On the same day, Dec. 6, 1996, Ronnie Long said, the bank modified a loan request of the Longs to the BIA. Long, working now for the Cheyenne River Sioux Tribe's Game, Fish and Parks Department, said the modification involved requesting a 90 percent guarantee from the BIA, instead of 84 percent. The higher guarantee request helped to ensure the BIA would classify the modified loan as a new loan altogether. That led to predictable delays in the loan's approval, Long said.
Von Wald said the Longs were in default on a previous BIA-guaranteed loan. Standard banking practice called for a larger loan guarantee, reflecting the risks of lending to a borrower in default, he explained.
Meanwhile, the Longs met the risks of a horrific winter. The bank extended smaller loans than the guaranteed one would have been, hoping to help them save their cattle, Von Wald said.
But it wasn't enough.
''I had about 3,600 round bales [of hay] that I could have moved down,'' Long said. ''It would have got them [cattle] through the winter and then some. But it took money to move it'' - more than he had or could get without the BIA-guaranteed loan.
Long said that as far as court action, he doesn't know his next step. He said that he is sorely disappointed. First reached in a vast pasture, he had gotten onto higher ground to improve his cell phone reception - ''Can you copy me now?'' - and that's where he stood when the call ended.