1. Forest County Potawatomi Law Day October 1, 2009 Presented by the Forest County Potawatomi Tribal Court Approved for 3 CLE Credits

2. Plains Commerce Bank v. Long Family Cattle Company

3. Plains Commerce Bank v. Long Family Land & Cattle Company  Decided June 2008  Limited tribal court jurisdiction by holding that the Cheyenne River Sioux Tribal Court did not have jurisdiction to hear a discrimination claim relating to the sale of non-Indian fee land.

4. Plains Commerce Bank v. Long We are our story and our story is us. We are a part of one another and like the instincts in our oldest friend the dog, who simply knew things we could not see, its beauty is carried instinctually within us all and its burden is ours to carry so that it not be forgotten. The burden of keeping it is our joy, our survival, our revival, and our dream of always living our story and living it well. Listen then to our story if you have been given ears to hear it.

5. Plains Commerce Bank v. Long

6. Plains Commerce Bank v. Long Family Land & Cattle Company  FACTS:  2,230 acres of agricultural land in the Long family on the Cheyenne River Sioux Res.  Ken Long died in 1995 with money owed to the bank holding the loan. Kenneth and the Long Company owed $750K to bank at time of his death.  Ronnie and Lila Long had discussions with bank in 1996 to work out a deal.

7. Plains Commerce Bank v. Long Family Land & Cattle Company  In December 1996, the Longs and the Bank entered into two year lease at the end of which the Longs would have the option to buy the land for $468,000.  The Bank received deed in lieu of foreclosure from Kenneth’s estate.  Long Company and Bank also entered into Loan Agreement. Bank agreed to seek BIA guarantees and make operating loans.

8. Plains Commerce Bank v. Long Family Land & Cattle Company  Harsh winter of 1996-97. Longs lost 230 cows, 277 yearlings, 8 horses; heavy snows prevented Longs from reaching cattle to feed them.  When the lease expired, the Longs could not purchase the land. The Longs did not vacate the land.  Nevertheless, Bank sold the land to third parties. Terms were more favorable than those offered the Longs.

9. Plains Commerce Bank

10. Plains Commerce Bank v. Long Family Land & Cattle Company

11. Plains Commerce Bank  NDSU summary:  Snow blanketed region on Nov. 5; stayed until April.  $59 million lost statewide due to cattle deaths  Fargo had 117 inches of snow; previous 30 year average = 40 inches.

12. Plains Commerce Bank  Long Company started an action in CRST Tribal Court seeking to restrain the sale of the land.  Bank sought dismissal stating the Tribal Court did not have jurisdiction.  Tribal Court denied both motions.

13. Plains Commerce Bank  Cheyenne River Sioux Trial Court judge was BJ Jones:

14. Plains Commerce Bank  The Longs then added several causes of action including:  1. Bank engaged in impermissible self help.  2. Discrimination claim  3. Breach of contract  4. Bad faith

15. Plains Commerce Bank  Bank counterclaimed seeking eviction and damages.  Seven member jury trial.  Bank did not ask for non-Indians on the jury.  Before the jury was charged, the Bank contested the Tribal Court’s jurisdiction on the discrimination count claiming it was based on federal law and therefore disallowed under Nevada v. Hicks, 533 U.S. 353 (2001).

16. Plains Commerce  Trial Court stated that it had the power to hear claims based on federal law.  “Federal ingredients”

17. Plains Commerce Bank  Jury returned verdict in favor of the Longs on all counts except the self-help claim. Jury awarded $750,000 to the Longs in damages.  Trial Court awarded the Longs an option to purchase 960 acres.

18. Plains Commerce Bank  Bank appealed tribal court jury verdict to Tribal Appellate Court.  Appellate Court ruled that although the Tribal Court may not be able to hear federal claims, the Longs discrimination claim was based on tribal law.

19. Plains Commerce Bank  Under Lakota notions of justice, fair play and decency to others, discrimination because of race or trial affiliation = tortious conduct.  Bank filed in federal court seeking to nullify tribal court jurisdiction.

20. Plains Commerce Bank  Montana test. From U.S. v. Montana, 450 U.S. 544 (1981)  Tribes can regulate non-Indians on non- Indian fee land under two circumstances:

21. Plains Commerce Bank  1 st Montana category:  1. A tribe may regulate through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases or other arrangements.

22. Plains Commerce Bank Second Montana category: A tribe may exercise civil authority over the conduct of non-Indians on fee lands within the reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.

23. Plains Commerce Bank  U.S. District Court:  Ruled in favor of the Longs  Focused on first Montana category: “consensual relationships with the tribe or its members, through commercial dealings, contracts, leases, or other arrangements” may be regulated through taxation, licensing or other means.  What are “other means”?

24. Plains Commerce Bank South Dakota Federal Courthouse

25. Plains Commerce Bank  District Court found that tort law is a form of regulation.  District Court also found it significant that Bank had the following statement in brief:

26. Plains Commerce Bank  The Court has jurisdiction over Long Family Land and Cattle Company, Inc. and Ronnie Long and Lila Long in that the majority ownership of the corporation is owned by Ronnie Long and Lila Long, enrolled members of the Cheyenne River Sioux Tribe and the court has jurisdiction over the subject matter of this action.” (Emphasis added).

27. Plains Commerce Bank  Eighth Circuit Court of Appeals

28. Plains Commerce Bank  Eighth Circuit: “Because the bank not only transacted with a corporation of conspicuous tribal character, but also formed concrete commercial relationships with the Indian owners of that corporation,”

29. Plains Commerce Bank  “we conclude that it engaged in the kind of consensual relationship contemplated by Montana.”

30. Plains Commerce Bank  Bank appeals to the U.S. Supreme Court.

31. Plains Commerce Bank U.S. Supreme Court decision:  Fewer facts  Opening sentence: “This case concerns the sale of fee land on a tribal reservation by a non-Indian bank to non-Indian individuals.”

32. Plains Commerce Bank  For the Supremes, case hinged on the fact that the Montana exceptions discuss activities and non-member conduct.  Sale of land is not an activity or conduct, according to Supreme Court.

33. Plains Commerce Bank  Supremes: “By virtue of their incorporation into the United States, the tribe’s sovereign interests are now confined to managing tribal land, …”

34. Plains Commerce Bank  Court focuses on “the risk of subjecting nonmembers to tribal regulatory authority without commensurate consent.”  Tribal sovereignty is “outside the basic structure of the constitution.”

35. Plains Commerce Bank  What happened after the Supreme Court ruled?  Only four original claims in tribal court:  1. Impermissible self help.  2. Discrimination claim  3. Breach of contract  4. Bad faith Only discrimination claim was subject of federal court action.

36. Plains Commerce Bank  REST OF THE STORY:  No further proceedings in CRST Tribal Court  Longs still occupy the land. Eviction would have to come through tribal court.

37. Plains Commerce Bank v. Long  Discussion questions:  What considerations, if any, for tribal courts and how they conduct their business?  What are the lessons of the Long case?  What could the Tribal Court or Longs done differently, if anything, to have helped reached a different result?

38. This presentation will be available on my web site: www.paulstenzel.com