This article will examine the current state of the law governing tribal court practice in North Dakota with an emphasis on the ever-changing civil jurisdiction rules governing tribal courts, an examination of full faith and credit between tribal and state courts as well as between tribal courts, and finally a review of recent federal legislative proposals which undoubtedly will impact tribal court civil practice. With four tribal courts in North Dakota(2) and a substantial native and non-native reservation population in this state, tribal court practice is becoming a necessary staple of civil practice for many attorneys wishing to provide the full panoply of legal services for their clients. It is hoped that this article, however brief, may set out some of the fundamental rules governing tribal court practice(3) which in turn may induce more attorneys to venture into the realm of tribal court practice.
I. TRIBAL COURT CIVIL JURISDICTION RULES
Determining whether a tribal court in North Dakota has civil jurisdiction over a particular dispute and/or party requires an analysis of several different issues. The following rules are benchmarks for determining whether a particular dispute that arises within or without Indian country(4) is within a tribal court's authority to adjudicate:
A. Look to Whether Federal Law Delegates or Deprives the Tribal Court of Jurisdiction
Because the question of whether a tribal court can exercise civil jurisdiction is a question of federal law,(5) and the Supreme Court has recognized that Congress has plenary authority(6) over Indian affairs, Congress has enacted legislation which vests tribal courts with jurisdiction in certain cases, and deprives them of jurisdiction in others. Examples of delegated tribal court civil jurisdiction include: 1) exclusive jurisdiction to foreclose mortgages held by a private lender on Indian trust land, see 25 U.S.C. 483A; 2) exclusive jurisdiction over child custody proceedings involving Indian children residing in Indian country and concurrent jurisdiction over those proceedings when the child resides off under the Indian Child Welfare Act, see 25 U.S.C.1911; 3) concurrent jurisdiction, with state governments, to regulate liquor distribution within Indian country and resulting tribal court authority to enforce regulations, see City of Timber Lake v. Cheyenne River Sioux Tribe, 27 F.3d 1294 (8th Cir. 1994). These are examples and are not an exhaustive list of delegated types of cases.
There are other particular disputes that arise within Indian country that Congress, arguably, has divested tribal courts of jurisdiction. This is a much less clear area of the law, however, because the federal courts have been reluctant to rule that tribal court civil jurisdiction is precluded in an instance where state court jurisdiction appears lacking.(7)
One important area, however, where Congress has apparently divested tribal courts of civil jurisdiction are tort claims against federal employees, and tribal employees or entities that are funded under the Indian Self-Determination Act.(8)
Therefore, if a tribal employee or entity commits a tort against a person within Indian country that seems destined for tribal court adjudication, this new federal law may derail that and require the case to be prosecuted under the Federal Tort Claims Act.(9)
This also applies to certain schools on Indian reservations that are operated by Indian tribes through contracts with the Department of Interior.(10) A litigant does not want to be pursuing a case in a tribal forum, while the FTCA statute of limitations runs, especially since there is no apparent way to remove a case from tribal to federal court.(11)
B. Look to Whether the Dispute Arose Within the Territorial Jurisdiction of The Tribe
Just as with a state court's exercise of jurisdiction, in general a tribal court can only exercise jurisdiction over a dispute that arises within its territory. For most of North Dakota Indian country, this is not a difficult analysis because the four Indian reservations here have well-established boundaries determinable by an examination of their respective treaties .(12)
However, there are two areas in North Dakota, the Trenton Service area near Williston, North Dakota and the Dakota Magic casino near Hankinson, North Dakota, that lie ouside clearly-established reservation boundaries and may present more difficult questions. North Dakota United States Attorney John Schneider has opined that the casino is "Indian country" and that opinion is a very sound analysis. The Trenton service area, created for the sake of the Turtle Mountain Band of Chippewa by the federal government after it realized it had would never be able to allot enough land to Turtle Mountain Chippewa Indians at their present location, creates a more meddlesome situation because the argument could be made that that area is a "dependent Indian community."(13) There appears to be no case at present addressing that area.
Some disputes that arise within the territorial jurisdiction of the Tribe may be within the exclusive province of the tribal court to adjudicate,(14) while state courts may have concurrent jurisdiction with tribal courts over others.(15)
C. Look to Whether the Tribal Court Has Subject Matter Jurisdiction Under Federal Law-Whether the Tribe Can Regulate the Underlying Activity
The distinction between the subject matter jurisdiction of a tribal court over a particular type of dispute and the personal jurisdiction over a particular person or entity has often been a murky one. This has been clarified somewhat by the recent United States Supreme Court decision in A-1 Contractors v. Strate(16), wherein the Supreme Court postulated that Indian tribal courts can only exercise subject matter jurisdiction over disputes involving subject matter which the tribe can regulate under federal law. Therefore, when the tribal court exercises civil jurisdiction over non-Indians, that exercise of jurisdiction must comport with the United States Supreme Court's pronouncements regarding the authority of a Tribe to regulate the conduct of a non-Indian within Indian country, especially Montana v. United States.(17) Apparently, if the Tribe cannot regulate the activity, the tribal court cannot adjudicate a case questioning the activity. This should not be confused with the tribal court exhaustion rule, which mandates that a dispute arising within Indian country be adjudicated first through the tribal court to permit the tribal court to explain its exercise of subject matter jurisdiction before a federal court can review the exercise.(18) Federal courts will generally stay their jurisdiction to enjoin a tribal court action until such time as the tribal trial and appellate courts have had the opportunity to address the subject matter jurisdiction of the tribal court.
D. Look to Whether the Tribal Court Has Personal and Subject Matter Jurisdiction Under Tribal Law
A final step in the analysis is whether the tribal court has personal jurisdiction over a litigant and subject matter jurisdiction over a dispute under its own constitution and laws. In general, such determinations are tribal matters not reviewable in federal court.(19) Tribal courts can generally exercise personal jurisdiction over any party that maintains sufficient "minimum contacts" with the reservation sufficient to comply with the due process clause of the Indian Civil Rights Act.(20) The tribal status of the litigant is largely irrelevant in a personal jurisdiction analysis, although it may be in a subject matter jurisdiction one discussed supra.
Determining whether the tribal court has subject matter jurisdiction under tribal law over a particular type of dispute is always a dicey proposition because many Tribal codes are lacking in much of the substantive law which a practitioner has come to expect under state law. Few, if any, tribal codes, have ordinances governing the liability of tortfeasors in Indian country, yet the North Dakota Supreme Court has on numerous occasions recognized the exclusive subject matter jurisdiction of tribal courts over personal injury actions arising on the reservation involving native people.(21) Most Tribes compensate for this deficiency by having a "savings" clause incorporating state or federal substantive or procedural law which permits the practitioner to act on the premise that state law will frequently apply in certain, but not all, disputes.
II. FULL FAITH AND CREDIT
Tribal courts were largely overlooked when the constitutional and federal statutory full faith and credit clauses were enacted.(22) This is slowly changing as Congress has recently enacted statutes requiring Tribes and States to honor each other's child support orders(23), and domestic violence protection orders.(24) In addition the National Conference of Commissioners on Uniform State Laws recently suggested amendments to the Uniform Child Custody Jurisdiction and Enforcement Act to include tribal court orders.(25) This is a positive trend and is reflected by activity on both the state(26) and tribal levels(27) to grant full faith and credit to judgments issued by foreign courts. Just as with Supreme Court Rule 7.2, the exact procedure is not laid out in most of the tribal codes for the filing of a foreign judgment, therefore a separate petition, with the necessary filing fee, requesting recognition followed by notice to the opposing party is generally called for. Litigants should be aware that tribal courts, just as North Dakota state courts, have the authority to look beyond the judgment to determine appropriate jurisdiction before recognizing a judgment from another tribal court or a North Dakota district court.
III. SOVEREIGN IMMUNITY
Recently, the United States Supreme Court reaffirmed that Indian tribal governments are generally immune from suit in federal and state courts even when they engage in off-reservation business enterprises.(28) Not surprisingly, many tribal courts have followed federal court precedents and similarly held that Indian tribal governments are immune from suit in tribal court also, especially when a suit for money damages is brought.(29) This article has already demonstrated that many of the causes of action that arise out of tortious conduct by tribal entities and enterprises are governed by the Federal Tort Claims Act making the sovereign immunity defense a legal irrelevancy. This has not prevented some persons, most notably Senator Slade Gorton of Washington, from attempting to legislatively abrogate tribal sovereign immunity and permit Indian tribes to be sued in state and federal courts.(30) A negative aspect of this trend is the failure of Gorton and others to recognize that tribal courts in many instances have found waivers of tribal sovereign immunity. especially in cases requesting injunctive relief for violations of the Indian Civil Rights Act, and have acted accordingly in ordering appropriate remedies.(31)
Practicing law in a tribal forum is an interesting, yet sometimes intimidating, prospect for many attorneys unfamiliar with those unique forums. Hopefully, this article has served to allay some of the concerns regarding the mysteries of civil jurisdictional rules and will prompt more attorneys to practice there.(32)
1. Director, Northern Plains Tribal Judicial Institute, University of North Dakota School of Law; Chief Judge, Sisseton-Wahpeton Sioux Tribal Court; Chief Justice, Turtle Mountain Chippewa Tribal Court; JD, University of Virginia School of Law, 1984.
2. Those four tribal courts are: 1) the Standing Rock Sioux Tribal Court in Fort Yates, North Dakota and its independent appellate court; 2) the Spirit Lake Tribal Court located in Fort Totten, North Dakota and its appellate court, the Northern Plains Inter-Tribal Court of Appeals located in Aberdeen, South Dakota; 3) the Turtle Mountain Band of Chippewa Tribal Court and its independent appellate court located in Belcourt, North Dakota and; 4) the Fort Berthold District Court of the Three Affiliated Tribes located in New Town, North Dakota and its appellate court, the aforementioned Northern Plains Inter-Tribal Court of Appeals. Each of these Tribal Courts are governed by their own substantive and procedural laws contained generally in their internal governing documents, including their tribal constitutions and tribal codes. All also have treaties and agreements with the United States government which may also form the basis for some substantive law.
3. One surprisingly pleasant aspect of tribal court practice in North Dakota is that most of the courts are very reasonable regarding their admission and practice rules and dues. At one time, for example, the Standing Rock Sioux Tribal Court bar required a one-time admission fee of $5.00. Attorneys should also be aware that the practice of law in tribal courts may also require the retention of a tribal business license from the Tribe itself. This is the practice of the Spirit Lake Tribe for example.
4. The term, Indian country, for purposes of civil jurisdiction, is not defined under federal law. As a general principle, however, the definition of Indian country contained at 18 U.S.C. 1151- all lands within exterior boundary of reservation, all Indian allotments and rights of way through them, and all "dependent Indian communities"- for criminal jurisdiction is generally accepted for civil jurisdiction. See DeCoteau v. District Court, 420 U.S. 435 (1978).
6. The plenary authority doctrine, essentially concocted out of thin air by the United States Supreme Court in United States v. Kagama, 118 U.S. 375 (1886), holds that because the relationship between Indian tribes and the federal government is a "political" one, Congress can act with unlimited discretion in legislating reservation affairs.
7. An example of this are the federal statutes authorizing the United States to utilize the federal courts when it asserts its rights as a litigant. The US cannot be forced into a state forum as a Plaintiff, yet at least two federal courts have ruled that they can be forced into a tribal forum. See e.g. United States v. Plainbull, 957 F.2d 724 (9th Cir. 1992)
8. Congress, in 1990, made tribal employees and entities federal actors for purposes of the Federal Tort Claims Act. See Pub. L. 101-512, 107 Stat. 1416 (codified at 25 U.S.C. 450(f). See FGS Constructors v. Carlow, 64 F3d 1230 (8th Cir. 1995).
9. One court has already ruled that federal court jurisdiction lies and tribal court jurisdiction is not called for. See Louis v. United States, 967 F.Supp. 456,459-490 (D.N.M 1997). Senator Slade Gorton of Washington, not a fan of tribal court jurisdiction, recently overlooked this law when he held out a case involving a tribal police officer striking an individual while on duty and that individual being denied a tribal forum because of tribal sovereign immunity as a poster child for eliminating the sovereign immunity defense. See Washington Post, OP-ED of Senator Slade Gorton, Pg. A17, September 16, 1997.
14. For example, the North Dakota Supreme Court has ruled that tribal courts have exclusive jurisdiction over paternity actions involving Indian children conceived in Indian country, notwithstanding their or their natural parents' present residences. See In Interest of M.L.M., 529 N.W.2d 184 (N.D. 1995); McKenzie County Social Services Bd. v. V.G., 392 N.W.2d 399 (N.D. 1986)
15. For example, if a reservation-domiciled native american enters into a contract off the reservation, which is subsequently breached on, it is likely that both the state and tribal court would have jurisdiction over the action. The tribal court may be the more appropriate forum, however, since enforcement of any judgment would require the assistance of the tribal forum.
16. 117 S.Ct. 1404 (1997). In A-1 Contractors, a case arising on the Fort Berthold Indian reservation, the Court held that the tribal court had no subject matter jurisdiction over a personal injury action brought by one non-Indian against another on a state highway running through the reservation because the Tribe had granted an easement to the State and had not reserved the authority to regulate the highway. That decision has been carried further by the Ninth Circuit which ruled in Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997) that a tribal court lacks subject matter jurisdiction over a personal injury action filed by a tribal member against a non-Indian arising on a federal highway running through Indian country.
17. 450 U.S. 544 (1981). In Montana, the Supreme Court determined that Indian tribes can regulate the activities of all persons that occur upon trust or allotted lands, but could only regulate the activities of non-Indians on fee land if the non-Indian has entered into a consensual relationship with the tribe or its members, or the activities of the non-Indian have a serious impact upon the political integrity of the Tribe or health and welfare of the Tribe. This appears to be a difficult standard to meet.
19. See Basil Cook Enterprises v. St. Regis Mohawk Tribe, 117 F.3d 61 (2nd Cir. 1997); City of Timber Lake v. Cheyenne River Sioux Tribe, 10 F.3d 554 (8th Cir. 1993). Both of these cases suggest that tribal court interpretations of tribal law are entitled to absolute deference in federal court.
27. Three of the tribal codes, Turtle Mountain, Spirit Lake and Three Affiliated Tribes, have general provisions regarding the recognition of foreign judgments. Standing Rock apparently has no provision in its code but has recognized foreign judgments if those foreign jurisdictions recognize its court orders.
29. For example, the Turtle Mountain Tribal Court of Appeals recently held that the Casino owned and operated by the Tribe in Belcourt, North Dakota was immune from suit in a personal injury case, although the Court went on to rule that if the Tribe was mandated to have liability insurance the insurance carrier could be joined as a Defendant. See Davis v. Turtle Mountain Casino.
30. Gorton called his bill the American Indian Equal Justice Act , S.1691, and it would have waived an Indian tribe's immunity from suit in several different contexts in state and federal court. Gorton eventually withdrew the bill after massive tribal opposition, especially in his home state, but he has now introduced various new bills which would achieve the same results.
31. See, e.g., Francis v. Wilkinson, 20 Indian Law Reporter 6015(Northern Plains Intertribal Court of Appeals)(finding that the Constitution of the Three Affiliated Tribes waived the Tribe's immunity from suit in ICRA violations).
32. For a thorough review of the present relationship between tribal and other courts see Jones, B.J., Welcoming Tribal Courts Into the Judicial Fraternity: Emerging Issues in Tribal-State and Tribal-Federal Court Relations, 24 William Mitchell Law Review 458 (1998)