National Farmers Union Ins. Cos. v. Crow Tribe - Oral Argument

ORAL ARGUMENT OF CLAY RIGGS SMITH, ESQ., ON BEHALF OF MONTANA AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

Chief Justice Burger: We will hear arguments first this morning in National Farmers Union Insurance Companies against the Crow Tribe of Indians.

Mr. Smith, you may proceed whenever you are ready.

Mr. Smith: Mr. Chief Justice, and may it please the Court, the State of Montana as amicus curiae has been granted leave to participate in argument today with respect to the first question as to which certiorari has been granted.

That question presents the issue of whether a complaint which alleges that a tribal court has exceeded its jurisdiction with respect to a non-member states a federal claim for relief.

The second question presented by this case, the substantive issue of whether under the facts here the Crow Tribal Court did exceed its jurisdiction, will be handled or discussed by petitioners' counsel.

I will briefly outline the facts that are material to determination of the first issue in this case.

The facts that I will be reciting have been taken from the complaint as initially filed and certain documents which were appended to the complaint.

In May of 1982, respondent Leroy Sage was a fifth grade student at the Lodge Grass Elementary School.

The Lodge Grass School is located on property owned by the petitioners' school district but lies within the exterior boundaries of the Crow Indian Reservation in southeastern Montana.

Sage is a member of the Crow tribe.

In May of 1982, Sage, having just returned from a school picnic and still on the property of the school itself, was struck by a motorcyclist and injured.

In September of that year, through his guardian respondent, Flora Not Afraid, Sage initiated an action against the school district in Crow Tribal Court.

The action alleged that the school district had been negligent and that the negligence had resulted in his accident.

Although a copy of the complaint in the tribal action was served on the chairman of the school board, he apparently notified no one else of the service.

No answer was filed, and in late October of 1982 a default judgment against the school district was entered in the amount of $153,000.

Five days later this action was initiated by the petitioners in the United States District Court for the District of Montana.

The District Court eventually issued a preliminary injunction enjoining enforcement of the tribal judgment.

Appeal has followed, and in July of last year the Ninth Circuit Court of Appeals reversed in a two to one decision.

The majority decision of the Ninth Circuit concluded that the complaint as amended did not allege a federal common law claim cognizable under 28 USC Section 1331.

Although the Ninth Circuit panel below recognized the prior Ninth Circuit decisions had permitted nonmembers to maintain federal common law action with respect to alleged excesses of tribes with respect to their regulatory jurisdiction, the Court reasoned that because this matter arose from a civil adjudicatory proceeding, that the Court's 1978 decision in Santa Clara Pueblo versus Martinez counseled a different result.

My remarks on the first issue will be relatively brief.

Brevity is counseled in this case, we believe, because as expressly or implicitly admitted by the Crow respondents in virtually all of the amici curiae supporting affirmance in this case, the Ninth Circuit's refusal to find a valid federal common law claim and Section 1331 jurisdiction was erroneous.

Montana fully recognizes that federal courts can and indeed are required to determine independently in each case the question of whether their jurisdiction has been properly invoked.

Nonetheless, we find it significant that prior to the Ninth Circuit's decision in this case, none of the parties had challenged the existence of a federal common law claim cognizable under Section 1331.

The absence of such a challenge is not remarkable because of the admittedly interrelated nature of federal law and retained tribal sovereignty rights.

Indeed, the United States in its amicus brief before the Court in this matter has stated that all limitations on tribal power necessarily derive from federal law, whether in the form of constitutional principles, treaties, statutes, or rudimentary propositions of Indian law.

Unidentified Justice: Mr. Smith, is it your position that the tribal court never has jurisdiction over a non-Indian defendant in a civil case?

Mr. Smith: Your Honor, the State of Montana as amicus has taken no position with respect to the second issue in this case.

Unidentified Justice: Well, what is your position on it, having been asked?

Mr. Smith: Our position is that in this case, under these fact, the Crow Tribal Court did not have jurisdiction.

Unidentified Justice: May I ask, Mr. Smith, suppose we agree with you that there is a federal cause of action.

We would still then have to decide, would we not, whether we would have to exhaust tribal remedies before going to federal court?

That is one of the issues here, isn't it?

Mr. Smith: Well, you are correct, Mr. Justice.

Unidentified Justice: And what is your view of that?

Mr. Smith: Well, the question of whether tribal remedies need exhaustion in this case will be discussed by petitioners' counsel.

I can only suggest that in this case the Crow respondents have indicated their position on that question.

Several of the... all of the Crow judges have been named as respondents in this case, and presumably would know the answer to your question.

Unidentified Justice: Your position is that... if your position is that the tribal court had no jurisdiction, there are no remedies to exhaust.

Mr. Smith: Your Honor, that is the position that has been taken by the petitioners below.

The Solicitor General's position with respect to the existence of a federal common law claim in this matter, of course, merely reflects the Court's own statement in Cliphant versus Suquamish Indian Nation, in which the Court stated that Indian law generally and the scope of tribal retained powers specifically must be determined with reference to the treaties executed by the executive branch and legislation passed by Congress, which instruments beyond their actual text form the backdrop of the intricate web of judicially made Indian law.

Consequently, irrespective of how the second issue in this case may be decided, the first question must be determined, we submit, with reference to applicable and relevant treaties, federal statutes, and executive branch policies.

The Ninth Circuit's reliance on Santa Clara Pueblo was clearly misplaced.

This matter does not assert a private right of action under the Indian Civil Rights Act.

The effect of the Ninth Circuit's decision is to make tribal courts the final arbiters of quintessentially federal rights except in those limited instances where the tribal court judgment is sought to be enforced through collateral state proceedings.

We suggest that Congress in enacting the Indian Civil Rights Act never intended tribal courts or state courts in the first instance to make these kinds of determinations of admittedly federal law.

We therefore suggest that the Ninth Circuit's decision as to the jurisdictional question was incorrect and should not be sustained.

That concludes my remarks, if there are no further questions.

Unidentified Justice: May I just ask one question?

Do you take a position on the tribe's claim of sovereign immunity?

Mr. Smith: No, we have not.

Again, Mr. Justice, the State of Montana wrote only with respect to the first issue in this case.

Thank you.

Chief Justice Burger: Very well.

Mr. Hartman.

ORAL ARGUMENT OF RODNEY T. HARTMAN, ESQ., ON BEHALF OF THE PETITIONERS

Mr. Hartman: Mr. Chief Justice, and may it please the Court, your petitioners stand before you today prepared to argue on the second issue granted certiorari in this matter.

We would like to begin our argument by characterizing the makeup and constitution of school districts in the State of Montana.

We will then discuss the exhaustion issue, followed by a discussion of the sovereign immunity issue.

We would propose to conclude our remarks by discussing the actual merits of the second issue which is before the Court today.

In Montana, there are 47 school districts that are located within the exterior bounds of Indian reservations.

Lodge Grass School District is but one of these.

School Districts in Montana are created exclusively by Montana state law.

Title 20 of the Montana Codes Annotated provide for the creation, the governance, and the regulation of school districts in Montana.

In 1972, the state citizens of the State of Montana enacted a new constitution.

Article X of the constitution is of great importance when we examine the nature of school districts in Montana.

Section 1, Article X of the Montana state constitution provides that it is the goal and the aim of the people of the state of Montana to provide equal educational opportunities to all children in the State of Montana, regardless of race, religion, and creed.

Further in Article X the State of Montana has recognized the unique cultural heritage of Indian tribes in the State of Montana.

There is a constitutional, state Constitutional provision in Montana that this unique cultural heritage be abided by, recognized, and maintained in the public school domain in Montana.

In short, the Lodge Grass School District Number 27, which is a petitioner in this matter, is exclusively a creature of state law.

There has been no suggestion whatsoever that any Crow tribal ordinance or enactment is responsible for the creation of Lodge Grass School District Number 27.

Unidentified Justice: Well, how did the school district get the property?

Mr. Hartman: The school district is situated on fee land.

It is not tribal trust land.

Unidentified Justice: Well, it is still within the reservation.

Mr. Hartman: It is within the exterior--

Unidentified Justice: Did they buy it from the tribe?

Mr. Hartman: --Your Honor, there has been some confusion, apparently, about where the property was first obtained.

At the District Court level, Judge Batten found that the land was obtained pursuant to the Crow Allotment Act of 1920, particularly Section 16.

At the trial court level there was never any dispute about this fact.

That particular fact was never the subject of the appeal at the Ninth Circuit.

Apparently now respondent Sage claims that the land was purchased by a private party and was used for a school for the first time in 1918.

We know that the land came from the Crow tribe.

We know that it probably came from the Allotment Act.

And as a result thereof, the 1920--

Unidentified Justice: It is on the reservation?

Mr. Hartman: --It is on the reservation.

If we may speak to the issue of exhaustion, your respondents in this matter have alleged that Issue Number 2 is really not ripe for determination by this Court because of the fact that the petitioners allegedly refused to exhaust their tribal remedies below.

Unidentified Justice: Do I correctly read Judge Wright, who apparently thought there ought to he a federal cause of action, but only if, as I understand him, there is first invoked the tribal remedies?

Mr. Hartman: Your Honor, I do believe that Judge Wright held that--

Unidentified Justice: Do you agree with that?

Mr. Hartman: --Do I agree with Judge Wright's holding?

Unidentified Justice: With Judge Wright, yes.

Mr. Hartman: I believe that you have to take a look at the existing facts in any case, because as Judge Wright made note of, the exhaustion doctrine is a flexible one.

I would argue--

Unidentified Justice: Yes, but his basic proposition as I understand it was not that the tribal courts had no jurisdiction.

Even though you had a cause of action, a federal cause of action, you could not press that cause of action until after you had exhausted tribal remedies.

Mr. Hartman: --That was Judge Wright's position.

Our response to that would be that under the exigent and emergency situation that was involved in this case in the first instance, that there was no meaningful opportunity for exhaustion.

What has terrified the school board--

Unidentified Justice: Do you mind?

Before you get to that, suppose he was right.

Suppose we agreed with Judge Wright that you had to exhaust.

When would you federal remedy be available, do you think?

Mr. Hartman: --I think under Judge Wright's analysis it would be at that point when after a full litigation of the jurisdiction issue in tribal court resulted in a tribal court decision that there was jurisdiction, that the federal right under 1331 would then attach, but in this case--

Unidentified Justice: So in other words there would have to be some kind of a judgment, is that it--

Mr. Hartman: --I think so.

Unidentified Justice: --in the tribal court before you would be able to pursue your federal court remedy.

Mr. Hartman: That is correct, Your Honor.

And in this case there was a judgment.

Unidentified Justice: A default judgment, wasn't it?

Mr. Hartman: Correct.

We might have had a different situation had the school district and its insurer been notified in timely fashion that there was a claim that the tribal court could assert jurisdiction in this matter.

Unidentified Justice: Well, Mr. Hartman, did you not subsequently ask the tribal court to decline to exercise jurisdiction in this case?

Did you file a motion?

Mr. Hartman: You are referring to action taken again under emergency circumstances in August, and there was a special appearance made.

Unidentified Justice: And a motion was made asking the tribal courts not to exercise jurisdiction here?

Mr. Hartman: That is correct.

Unidentified Justice: And did the tribal court ever rule on that motion?

Mr. Hartman: The tribal court held in abeyance a ruling according to its own order.

Unidentified Justice: That was because you didn't appear at the hearing on the action, or counsel for the petitioner did not appear at the hearing?

Mr. Hartman: As I understand the order, Your Honor, it was because a stay had been issued by Justice Rehnquist, and the tribal court uttered its preference to at that time, in August, await and abide by a decision of this Court.

The reason a supplemental brief has been filed in this matter, however--

Unidentified Justice: Just let me find out, if I can, did the tribal court rule on the motion?

Yes or no?

Mr. Hartman: --No.

Unidentified Justice: And your reply brief says that the tribal court held it had jurisdiction in some order dated October 25th, 1982.

Is that order in the record some place?

Mr. Hartman: It is, Your Honor.

Unidentified Justice: Because I couldn't find it.

Mr. Hartman: I am sorry.

When this action was initiated by a verified complaint and required certificate of counsel, appended to those documents was in fact the Crow tribal court default judgment that is at the very bedrock of this case.

Conclusion of Law Number 1 in that document, which is a part of the record, is a specific holding by the tribal court that it does have jurisdiction over the parties, including Lodge Grass School District Number--

Unidentified Justice: We would find that in the appendix some place?

Mr. Hartman: --Your Honor, I believe that complaint is not in the appendix, it is in the record.

Unidentified Justice: Okay.

Thank you.

Mr. Hartman: Okay?

Unidentified Justice: All right.

Thank you.

Mr. Hartman: And if we might develop that train of thought for just a moment, if there was ever any doubt that the tribal court would entertain a jurisdictional challenge, it has been dispelled by the rather unusual happenings that have taken place in this case over the last several months.

As recently as March 11th, 1985, Judge Roundface has uttered his order and opinion that the tribal court has jurisdiction to the exclusion of the Federal District Court in this matter, and in fact characterizes his relationship at present with Judge Batten as one of hopeless impasse.

So, we would conclude our remarks on exhaustion by stating that exhaustion may be an available remedy when there is a meaningful opportunity to take advantage of remedies.

In this case, there is no doubt, as has been argued throughout the entire course of the case, that the tribal court does indeed believe it has jurisdiction, and that is what brings us to this Court.

Unidentified Justice: May I ask... I still don't quite understand your theory on exhaustion.

Doesn't the tribal legal system provide a method for moving to vacate a default judgment in a timely fashion, and if it is denied, for appealing?

Mr. Hartman: It does, Your Honor.

Unidentified Justice: And why didn't you take advantage of that procedure?

Mr. Hartman: When the default judgment was mailed to the school principal, who otherwise had no information concerning the judgment, and he in turn sent it to his insurance company, the petitioners contacted counsel for respondent to find out if there could be some time for a meaningful decision on what to do.

This was done, and this also, Your Honor, appears in the record in the certification of service of counsel.

It was the position of the respondents at that time that the Crow tribal--

Unidentified Justice: Who are you referring to when you say respondents?

Are you talking about--

Mr. Hartman: --Sage and Not Afraid.

Unidentified Justice: --But not the judge?

Mr. Hartman: Not the judge.

What made it an emergency situation was, under the Crow tribal code, on November 4, respondents Sage and Not Afraid took the position that they could go execute, actually execute against physical assets of the school district.

This was discussed with the board of trustees, and the board of trustees are aware that under Montana law there will be no physical execution against assets of a school district, and that other procedures must be followed.

The board of trustees was terrified that their school operation, which was in effect in October of 1982, was in immediate danger of disruption by reason of execution upon physical assets.

Unidentified Justice: Bear in mind, I am not asking you why you filed your federal case.

I think you should run into federal court as fast as you can.

I am asking you why you did not also simultaneously seek relief before the tribal court.

Mr. Hartman: Your Honor, what happened was, upon application of Judge Batten for a temporary restraining order, the matter was immediately set for hearing on November 3rd.

One of the unusual aspects of this case was, there was a temporary restraining order at that time entered that basically restrained anybody from doing anything with regard to the tribal court judgment.

Unidentified Justice: You got an order that prevented you from exhaustion.

Is that what you are saying?

Mr. Hartman: What we are saying is that we believe that Judge Patten has always entered an order--

Unidentified Justice: But at your request.

Mr. Hartman: --Right.

Unidentified Justice: On your motion Judge Batten entered an order that prevented you from exhausting before Judge... the tribal court.

Mr. Hartman: Again upon a showing, we think, to Judge Batten that we didn't have a meaningful chance to exhaust.

Parenthetically we might add that the exhaustion argument that was made by Judge Wright in this matter cited several cases.

Those cases upon careful review will indicate that they all arose under the Indian Civil Rights Act, and that they involved intratribal disputes such a voting rights and the undisputed right of a tribe to determine the status of its own membership.

Those cases do not apply to a Section 1331 case such as is present before the Court today.

The respondents and several amici have suggested to the Court that the tribes themselves and indeed the individual members are clothed with a sovereign immunity against suit.

And for that reason it is the contention once again of respondents that this Court should not consider Issue Number 2 a ripe one for determination, but should in fact remand.

We think that there is a quick answer to that claim.

And as a matter of fact we would direct respectfully your attention to the Santa Clara Pueblo case decided in 1978.

Even though that case arose under and pursuant to the Indian Civil Rights Act, one of the individual tribal officers who was sued, Officer Podia, made the same argument that the individual tribal defendants are making right now, the argument, of course, being that as tribal officers they are immune from suit.

This Court held, however, in Santa Clara Pueblo that Mr. Podia was not immune from suit.

I should add that from the very time the Ninth Circuit accepted the briefs in this case until the present, that your petitioners have conceded that the tribe itself and the tribal governing bodies are clothed with the immunity suggested by the respondents.

It is our position, however, that under authority such as Ex Parte Young and indeed the Puyallup Tribe versus Washington Department of Fish and Game that the individual tribal officers themselves are amenable to suit for injunctive and/or declaratory review.

Indeed, had they not been joined in this action they would not have had the opportunity to so aggressively and thoroughly litigate the issues which are of importance today before the Court.

And that would have been in our view an unfair situation.

So certainly there is no reason to avoid deciding the ultimate issue in this case under the doctrine of sovereign immunity as espoused by respondents.

Finally, your petitioners have all along alleged and believed that the case Montana versus United States should be the case which most closely focuses the meritorious disputes in this matter, and I say that for several reasons.

First of all, Montana, which was, I believe, decided in 1981, examined the very treaties and statutes that are involved in this case, because it was the Crow tribe as well that was involved in Montana versus U.S.--

The holding, we suggest, of Montana versus U.S. is that the exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the admittedly dependent status of the tribe as a quasi-sovereign.

And the only way to get around that basic holding is if one can find express Congressional delegation to the contrary.

The analysis used in Montana which led to the holding that the tribe was without power to regulate hunting and fishing on non-member land within the reservation involved basically a three or four stepped analysis.

First of all, Judge Batten quite correctly conducted a thorough research of any relevant treaties and/or statutes enacted by the Congress which may have given the Crow tribal court jurisdiction in this case.

He found none, and indeed we suggest that there are more that cover the peculiar cases of this case... peculiar facts of this case.

Therefore, another level of inquiry arose at that time, and that is, was the school district on the reservation in consensual type of relationship which would amount to a voluntary session of jurisdiction to the Crow tribal court.

We believe and Judge Batten believed that that prong of the Montana case necessarily involves for profit business people who come onto reservations to make profit and to avail themselves of the services provided by tribes, and thereby voluntarily subject themselves to jurisdiction.

This is most certainly not the case with Lodge Grass School District Number 27.

It exists not for profit.

It exists to educate member and non-member children alike in an equal fashion, and therefore it is the last prong of what sometimes has been called dicta, but at other times has been called the holding of Montana that becomes all important for our case presently before the bar.

And that is, is the denial by the federal court of Crow tribal jurisdiction in this case, does that somehow directly and adversely impact the political integrity or economic well-being and health and welfare of the tribe as a whole?

I wish there were easy, concrete calculations or formulas or holdings that we could all point to to say this is an easy question.

The Court, however, upon being requested several times to develop doctrinaire, inflexible, black and white rules has quite correctly held that you cannot do this in this difficult area, and that every case therefore deserves a fact by fact, case by case analysis.

Unidentified Justice: Judge Wright made an effort to do just what you suggested, didn't he?

Mr. Hartman: In this particular case, Your Honor, as I recall his holding--

Unidentified Justice: He suggested that there should be exhaustion of the tribal remedy as a prerequisite to federal jurisdiction, but that there was federal jurisdiction.

Mr. Hartman: --He did.

He suggested that... again, I think that his holding was that petitioners were before the Ninth Circuit prematurely, because they hadn't exhausted, but I don't believe that anyone has ever or the Ninth Circuit certainly did not examine or quarrel with the facts that were relied upon by Judge Batten to issue his ruling on the merits in this case.

Unidentified Justice: Mr. Hartman, this may be an unfair question, but I for one could stand a little education about tribal courts out in your part of the country.

Are they fully structured?

Do they have a clerk, all the trappings that we have in our general system?

Do they vary from tribe to tribe?

Mr. Hartman: Your Honor... I think they vary from tribe to tribe, and I can tell you what the Crow tribal codes itself provide as far as its sum and substance.

It was created in 1976, so it is not yet ten years old.

The Crow tribal judges, if I recollect, are appointed or elected for four-year terms.

Unidentified Justice: By whom?

Mr. Hartman: By the tribal members.

There is no requirement that a tribal judge be a member of a state bar or indeed that he go to law school or anything of that nature.

The tribal codes themselves provide... I believe that the red light has come on.

Unidentified Justice: Go ahead and finish.

Mr. Hartman: Provide that the Crow tribe through its judges will enunciate tribal law not based on what state law is all about but what it will develop as a case by case evolution will later provide.

Some of the cultural traditions and customs will necessarily tell or lead the tribal court in how it is going to develop its substantive law.

Unidentified Justice: Have you ever practiced in a tribal court?

Mr. Hartman: I have not, Your Honor, but I have two partners who have.

Unidentified Justice: Counsel, you say you quarrel about the fact that there is no requirement that they be lawyers, that they go to law school.

Mr. Hartman: I don't quarrel with that.

Unidentified Justice: There is no requirement that we go there either.

0 [Generallaughter.]

Mr. Hartman: Your Honor, I didn't know that.

Thank you so much for your time.

Chief Justice Burger: Mr. Belue.

Mr. Belue, if it is more convenient, you may elevate the lectern.

ORAL ARGUMENT OF CLARENCE T. BELUE, ESQ., APPOINTED BY THIS COURT FOR RESPONDENTS LEROY SAGE AND FLORA NOT AFRAID

Mr. Belue: Mr. Chief Justice, may it please the Court, Mr. Justice Blackmun, if I could respond to that question for just a moment before I begin my remarks, ten years ago on the Crow reservation there were no licensed attorneys within the Crow tribe.

Today there are over four.

The Crow court, although it does not have attorneys as judge, it does have a licensed attorney as an advisor to the court.

The appellate portion of the court system renders reasoned opinions which are catalogued and available for the attorneys who are licensed by the court to practice before that court.

Unidentified Justice: Who assists the reviewing court?

Mr. Belue: Pardon?

Unidentified Justice: Who assists the reviewing court?

Do they have separate counsel or a separate advisor?

Mr. Belue: Yes, and they very often, Your Honor, hire attorneys to act as substitute appellate judges.

The respondent Flora Not Afraid is a part of the Not Afraid family of Indians.

She is raising her sister's daughter... her sister's daughter's son, who is also a respondent in this action, Leroy Sage.

And she sent Leroy Sage to the petitioner, Lodge Grass School, for his education.

That school is 85 percent Indian children.

Four of the five trustees of that school are also Indians.

The school is patrolled regularly by tribal, not state policemen.

Unidentified Justice: Mr. Belue, is the school located in or near the town of Lodge Grass?

Mr. Belue: Yes, a part of the town of Lodge Grass, although the entire town and the entire district are located within the exterior boundaries of the reservation.

As I was about to say, fire protection, enforcement of state truancy laws, and juvenile problems with students are handled by Crow truancy and delinquency officers rather than state officers.

As I already mentioned in response to Justice Rehnquist, the school is in the heart of the reservation.

It is considered an Indian community and an Indian school, although it is administered and organized under state law.

On May 27th, 1982, Leroy Sage was injured at the school, as has already been mentioned, and Flora sought compensation for his injuries in the way, seemingly natural to her, to go to the tribal court and seek compensation.

She filed her complaint in the tribal court, and the chairman of the school board was duly served with a summons which commanded the school to appear in 15 days under the Crow Code of Civil Procedure.

Unidentified Justice: May I ask two factual questions?

Mr. Belue: Yes, Your Honor.

Unidentified Justice: How big is the school?

How many pupils?

Mr. Belue: Approximately 500 students.

There are about 300 in the high school portion.

Unidentified Justice: I see.

Mr. Belue: There are two districts, but they are on the same ground.

Unidentified Justice: And where do the revenues that support the school come from?

Mr. Belue: Of course, they indirectly, I would like to point out, come from approximately 40,000 acres of Crow land that was given to the state of Montana under the Allotment Act.

There is state aid.

There is also 874 money from the federal government in lieu of Indian taxation and other funding for the school.

Unidentified Justice: Mr. Belue, does the record show why the school board chairman did not notify the insurance company of the filing of the suit?

Mr. Belue: Of course, the only real record in this case, because it was a default matter, is the complaint of the petitioners in the federal court.

Beyond that, there are facts that are known to myself and the parties as to what happened, but that is not part of the record.

I don't know what you are asking.

If you would like me to elaborate, it would go beyond the record.

Unidentified Justice: Is it possible that the tribal court could have set aside that default judgment?

Mr. Belue: I was just getting to that.

Unidentified Justice: Were there grounds available which would have led it to set aside--

Mr. Belue: Yes, in the joint appendix given to you there is an excerpt... in fact, a complete set of the Crow Code of Civil Procedures that pertains to this action, and Rule 17 of the code... incidentally, I might add that the Crow Code of Civil Procedure is generally patterned after the federal rules.

Rule 17 affords a defendant in any action a second notice after the summons, a second opportunity to come to the Crow court and move to set aside a default within 30 days of the entry of that default, and that notice is given, according to Rule 17, by certified mail to this defaulting party.

Unidentified Justice: --Well, of course, it is too late for that, isn't it?

Mr. Belue: It is too late now, but it was not too late at the time that the petitioners herein decided to ignore that provision and go to the federal court instead.

Unidentified Justice: Well, do you agree that at this time, in any event, exhaustion would be futile?

Mr. Belue: There is at the present time the motion that you mentioned earlier that was made on the 22nd day of August, 1984, the only appearance--

Unidentified Justice: Was that a timely motion within the 30 days?

Mr. Belue: --Not Afraid argued that was not, and the argument was held by the court and submitted to the court in the absence of the petitioners who did not come to the hearing, the court issued its order stating that it had made a decision on the merits of that motion, but out of deference to the proceedings in this Court it would withhold its ruling until the order of the Supreme Court.

So, that motion is still pending before the tribal court.

Unidentified Justice: Well, whatever the right is to have the default judgment set aside, your Rule 17 says that nothing in this section shall prevent execution of the judgement pending this action.

Mr. Belue: Under that particular provision, no.

Unidentified Justice: So if you were going to avoid an execution, you would have to go to the federal court, I take it.

Mr. Belue: No, Your Honor, I respectfully say that is not correct.

I don't recall the number of the rule, but I believe it is 22 on executions, and I might be wrong about that, but the petitioners in this action actually obtained relief from the pending execution when they filed their motion on the 22nd.

The court on the 22nd--

Unidentified Justice: The tribal court?

Mr. Belue: --The tribal court on the 22nd of August, in answer to the petitioner's special appearance, they did impose a temporary bond for staying the sale and a full bond for staying all further executions, and they even returned some property that--

Unidentified Justice: Was that because of their stay issued here, or what?

Mr. Belue: --No, that was issued the day before Justice Rehnquist's stay.

Justice Rehnquist's stay was issued the 23rd.

Judge Roundface issued his order on the 22nd.

Unidentified Justice: When you say that a bond was imposed, Mr. Belue, does that mean that the tribal court in effect stayed the execution conditioned upon the petitioners putting up a bond in the amount of the property?

Mr. Belue: That August 22nd order stated that if a bond in the appraised value of the property, which would approximately by $50,000, were to be posted that day, the sale would be stayed.

If they wanted to avoid further executions, they would have to put up a bond for the amount of judgment plus interest and other costs.

Unidentified Justice: What was that amount?

Mr. Belue: Well, it ended up being $200,000.

I think for purposes here it is appropriate to say that amount.

Unidentified Justice: Is that order of the tribal court in the record?

Mr. Belue: I think it is in the record now.

As I understand the record has been supplemented greatly in the last few days.

Unidentified Justice: Oh, it has?

Mr. Belue: You won't want to read all that record.

Unidentified Justice: Well, I was hunting for the order, hunting for the default judgment, and I don't find it in the initial record that was filed.

Mr. Belue: I believe it is there, but I... in fact, I know that it is in the record as of... it may be in some of the lodgings.

As I understand it, some of the--

Unidentified Justice: So it is in some of the supplementing of the record.

Mr. Belue: --Yes.

Yes.

I think the word is that it is lodged, but maybe it is not circulated to this Court at this time.

Unidentified Justice: It is available to us, however.

Mr. Belue: It is certainly available.

I think it is in this building.

Unidentified Justice: And this order of the tribal court you have just been talking about has also been lodged?

Mr. Belue: Yes, there was an order issued on the 22nd, the 23rd, the 27th, then December 20th, and--

Unidentified Justice: Do you think there is some, following up Justice O'Connor's question, do you think at this time there is any exhaustion to be done?

Mr. Belue: --Yes, Your Honor, because the tribal court still hasn't been afforded an opportunity to rule on these matters after hearing argument from the petitioners.

They still have not appeared.

Every order that the tribal court has entered is uncontested.

I have had an easy time persuading the tribal court to accept my view of the law, because the other side has never appeared except that one day in which they were afforded a great deal of relief on the matters that they were pressing, and the others were reserved for later judgment, and there are a number of items that are still pending and still could be ruled on.

Unidentified Justice: Mr. Belue, all of this addition to the record, both sides agree as to what has been going in the record, or is this being done ex parte?

Mr. Belue: It is ex parte.

The filings that--

Unidentified Justice: Well, how can you increase the record ex parte?

Mr. Belue: --I don't know.

Unidentified Justice: But it has been done?

Mr. Belue: As I understand, it was lodged, which I think means it is not before you at the present time, and maybe that is a matter for future determination.

Unidentified Justice: You mean, is lodged an expression of ours?

Mr. Belue: I think so.

It is an expression of you clerk.

Unidentified Justice: Well, I have been here only 29 years, and I have never heard it before.

0 [Generallaughter.]

Mr. Belue: Well, I have been here about 15 minutes, so I don't pretend to know.

Unidentified Justice: Well, but you have been talking about things that really aren't part of the record.

Mr. Belue: I believe so, Your Honor.

I did mention the remedy that the petitioners could have availed themselves under Rule 17 of the Crow Code of Civil Procedure.

Another remedy that they had is under Rule 7.

They are guaranteed under the rules the right to appear before the tribal court specially without waiving any claims they might have objecting to the... jurisdiction over them, and they did not avail themselves of that opportunity to press their basic claim which they now assert, and that is that the tribal court had no subject matter jurisdiction.

As I think might have been mentioned, Flora Not Afraid and Leroy Sage were not originally parties to the federal action that the petitioners decided to pursue rather than exhaust their tribal remedies.

Flora and Lercy appeared specially in the Federal District Court to object to subject matter jurisdiction in the federal court, and that motion and a like motion of the Crow tribe was the basis of Judge Batten's decision.

He never held any evidentiary hearings, and that partially answers some of the questions about the facts that are in his opinion.

They appear without a hearing to determine those basic facts, and of course on appeal the Ninth Circuit reversed for the reasons that have already been stated, and now this case comes before this Court.

I would like to emphasize that this case of course is of great concern to Flora Not Afraid and to the Indian people generally, and we believe that it ought to be controlled by two simple rules.

First of all, we believe that it is controlled by Section 1322 of the Indian Civil Rights Act.

This provision in essence provides that no state such as Montana is can exercise jurisdiction over a civil cause of action to which an Indian is a party where that--

And under this Court's decision in Kennery versus District Court, that statute of course was strictly adhered to, and it was that finding that Montana could not assume jurisdiction over a reservation like the Crow reservation, where no affirmative act on the part of the tribe and the state for state assumption of jurisdiction.

Unidentified Justice: Do you think you and the Solicitor General see eye to eye on this?

Mr. Belue: I don't know.

You will hear from him in a minute.

Yes, I think--

Unidentified Justice: You have read his brief.

Mr. Belue: --Yes, I think basically we do.

Unidentified Justice: And you think then that just any isolated tort on fee-owned property is subject to the--

Mr. Belue: I guess you are talking about the tranchant tort.

I concede... I am not sure I would concede that a tranchant tort is not a matter for tribal jurisdiction, but I can certainly concede and readily understand that the Indian nature of such a tort is a lot less than it is here, where we have a school which is an integral part of the Indian community, and tied closely with governmental service to the--

Unidentified Justice: --Do you agree with the solicitor general that the test to be applied is the one taken from the Montana case?

It is a question of whether the issue involves directly the political integrity, economic security, or health and welfare of the parties?

Mr. Belue: --Yes, I do, and I think this case falls squarely within that rule, because the welfare of the individual Indian, Leroy Sage, is the welfare of this tribe.

An infected part is part of the whole.

Unidentified Justice: Well, you would say any time an Indian is hurt on fee owned property the tribal entity is affected?

Mr. Belue: I don't think that the status of the land where the tort is committed makes any difference.

Unidentified Justice: Where the Indian is hurt by a non-Indian.

Mr. Belue: That is correct.

It is the situation where we have conduct inside the reservation that injures an Indian.

Unidentified Justice: Any act of negligence or--

Mr. Belue: That is correct.

The tribe has an integral interest in protecting the safety and health--

Unidentified Justice: --Or any other act.

For instance, if there are some tribal members receiving welfare benefits in your view because those checks are mailed to the reservation, then there is a cause of action in the tribal courts to secure any alleged unpaid welfare benefits, for example.

Mr. Belue: --It certainly has the nexus--

Unidentified Justice: That would be your view?

Mr. Belue: --Yes, it has the nexus which ties it to Indian affairs, something that they are integrally interested in, and have a legitimate interest in, to protect their people.

Unidentified Justice: Mr. Belue, in your brief I get the impression that you were defending the Court of Appeals' holding that there was no jurisdiction in the District Court.

Is that still your position?

Mr. Belue: Yes, Your Honor.

We still feel that 1331 is a general, not a specific grant of jurisdiction, and that it is an original, not an appellate grant of jurisdiction, and that because of exhaustion especially it was an improper exertion of federal authority.

We are not denying that federal review is not appropriate at some time.

We do not subscribe to the idea that Indian tribes are the last arbiters of their own jurisdiction.

Unidentified Justice: Then you really don't agree with the Ninth Circuit's opinion.

Mr. Belue: I see the Ninth--

Unidentified Justice: It sounds to me more like agreement with Judge Wright's view.

Mr. Belue: --With Judge--

Unidentified Justice: With Judge Wright's view, which, as I understood it, was, there was jurisdiction but not exercisable by the federal court until there has been exhaustion in the tribal court.

Mr. Belue: --I view that 1331 is one basis for jurisdiction, but it is not all basis for federal review.

The petitioners chose to come under 1331, and they mischose their basis for jurisdiction.

That doesn't speak to the general question of how and when federal review will be afforded.

Unidentified Justice: When do you think it should be?

Mr. Belue: My own view is quite novel, and it is in my brief, and I would contend, Your Honor, that it would be appropriate under this Court's appellate power under the Constitution to grant certiorari from the appellate decisions of the Indian courts until Congress makes a regulation which would do it otherwise.

Unidentified Justice: Is that common law certiorari jurisdiction?

Mr. Belue: Well, it is constitutional.

Thank you.

Chief Justice Burger: Mr. Claiborne.

ORAL ARGUMENT OF LOUIS FENNER CLAIBORNE, ESQ., ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

Mr. Claiborne: Mr. Chief Justice, may it please the Court, let me say straightaway that for our part we do not quarrel with the District Court, the Federal District Court's entertaining jurisdiction of the complaint filed before it.

We have been somewhat ambivalent as to the question whether having received that complaint the District Court ought to have abstained and required the plaintiffs before it first to exhaust tribal remedies.

Unidentified Justice: In other words, to follow Judge Wright's--

Mr. Claiborne: Indeed, Mr. Chief Justice.

The reason for our ambivalence was identified by Justice White in that it seems perhaps that if the allegation is, as Judge Batten thought it was, and as he found it to be well founded, that the tribal court wholly lacks subject matter jurisdiction, it may have been unnecessary to require the applicants to the federal court to exhaust remedies before a court that by definition lacked all jurisdiction of the subject matter.

On the other hand, if it was arguable that there was jurisdiction in the tribal court, that we believe that not only was it arguable, but plainly the tribal court did have jurisdiction, if it was arguable, then the exhaustion of remedies before that Court was certainly appropriate.

And I want to stress that there was ample opportunity to exhaust remedies before the tribal court.

A little chronology may help.

The case was filed in the tribal court on September the 27th by Lesage and Not Afraid.

Service was affected on the chairman of the school board on the same date.

Now, it is said that it went no further, and for the purposes of the argument in this Court we must accept that.

A default judgment was accordingly entered under the perfectly normal rules of the tribal court in the absence of any appearance, any answer by the defendants in that court on October the 25th.

Now, we don't know when notice of that default judgment was actually received by any of the petitioners in this Court, but we do know that at the latest, they received notice, according to an affidavit in this record, filed by counsel for petitioners, on the 29th of October.

Now, there were still several days left before execution could possibly have occurred, and still 20 days left during which the default judgment under the rules of the tribal court could have been moved to have been set aside, instead of which the petitioners in this Court went racing to the federal court.

They made no attempt whatever to obtain relief from the tribal court by saying, we ought not be subject to your orders.

This is a matter beyond your jurisdiction.

Judge Batten did not require any repairing to the tribal court even though time was not yet at the back of the plaintiff's before you, instead of which he immediately entered a temporary restraining order the next day.

That restraining order, as he recites in his opinion some months later, expired in ten days by its own terms and was not renewed.

Again there was an opportunity for repair to the tribal court before Judge Batten had made his order permanent.

Then, much later, when the Court of Appeal reversed the judgment entering a permanent injunction against the proceedings in the tribal court, and that judgment of the Court of Appeals occurred July the 3rd, the mandate issues on the 25th of July.

In that interim there was no effort by the petitioners to appear before the trial court to set aside the default judgment.

On August the 1st, the tribal court issued a writ of execution, and the property of the school board was seized.

It was not until August the 17th that the petitioners applied to the Court of Appeals for a stay, but still they did not appear in the tribal court.

They finally did make their one and only appearance before the tribal court on August the 22nd, and they obtained a form of relief on that day.

This was the day before Justice Rehnquist had issued his stay.

I should note that our brief, and in this respect copying Justice Rehnquist's later opinion, recites his original order as August 21st.

It was in fact August 23rd.

Now, that order of the tribal judge is reprinted in the appendix to the brief in opposition at Page 1A, and so are the subsequent orders of the tribal court, all of which indicate the tribal court was at all times within all allotted time to entertain a motion to set aside the default judgment, and the last order concludes... this is on the 19th of September... this court stands ready now to rule on the merits of the defendant's motion to set aside the default judgment based on the information received to date.

Nevertheless, this Court wishes to give the defendants every possible opportunity in this case, and therefore a final ruling will not be entered until this case has received its final review before the United States Supreme Court.

Accordingly, relief from the tribal court is not yet beyond the realm of possibility.

Now, if the Court determines that it ought to reach the second question presented, whether or not the tribal court had jurisdiction of the case, it seems to us that the answer must be in the affirmative.

It is no need, there is no need, I trust, in this Court to argue that a tribal court has jurisdiction over non-Indians in some cases with respect to events that occur on a reservation and that implicate the interests of the tribe.

The only serious question in this case, it seems to us, arises out of the status of the defendant as a state agency.

Now, supposedly that fact is very little stressed by our opponents.

They seem to argue as though the case were no different than if the defendant in the tribal court were a private non-Indian.

If that is so, it seems to us the answer, given the facts of this case, is very clearly in favor of tribal court jurisdiction.

Unidentified Justice: --Mr. Claiborne, do you think the tribal court would have jurisdiction if it were just a tourist driving through the reservation who had an accident injuring an Indian on the reservation?

Mr. Claiborne: Justice O'Connor, I hesitate to give a definitive answer.

My inclination is to say that it would not, probably would not extend to such a case.

Unidentified Justice: Would your answer be different if the person driving the car drove that route with some regularity?

Mr. Claiborne: Well, that might be a repeated peril to the residents of the reservation, and might add an ingredient.

I would suppose that was probably not a sufficient additional ingredient.

It is difficult to draw a line, but this Court, as has been said, has chosen to determine these matters not on an absolute basis but under the standards articulated by the Court in the Montana case, and it is obviously some difficulty in determining when it is that the activity of non-Indians within Indian lands sufficiently impacts all the tribal interests to justify the assertion of jurisdiction by--

Unidentified Justice: In my example of the welfare checks being mailed to tribal members, do you think then that questions relating to federal welfare... social security benefits are going to decided then in tribal courts?

Mr. Claiborne: --I think I can be clear on that one, Justice O'Connor.

That would not be a case properly implicating the interests of the tribes in a way that would justify the assertion of tribal court jurisdiction any more than it would justify the assertion of tribal court... of tribal jurisdiction in a regulatory way.

It seems to us that the test ought to be in most instances the same; when the tribe can regulate, when the tribe can tax non-Indian activity, so also can it require a non-Indian defendant to appear in its courts.

And I suggest that that has been the understanding, though implicit, ever since Williams versus Lee.

I cannot suppose that the result in that case would have been different had it been the Indian who were sued for a refund of his money on the ground that he delivered defective goods rather than the other way around.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.