Transcript

IN THE SUPREME COURT OF THE UNITED STATES

THREE AFFILIATED TRIBES OF THE FORT BERTHOLD RESERVATION, Petitioner v. WOLD ENGINEERING, ET AL.

No. 84-1973

March 24, 1986

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:03 a.m.

APPEARANCES:

RAYMOND CROSS, ESQ., Parshall, North Dakota; on behalf of the Petitioner.

GARY H. LEE, ESQ., Minot, North Dakota; on behalf of the Respondent.

PROCEEDINGS

CHIEF JUSTICE BURGER: The Court will hear arguments first this morning in Three Affiliated Tribes against Wold Engineering Company.

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

ORAL ARGUMENT OF RAYMOND CROSS, ESQ. ON BEHALF OF THE PETITIONER

MR. CROSS: Mr. Chief Justice, and may it please the Court:

This matter is before this Court for the second time on a Writ of Certiorari to the Supreme Court of North Dakota.

This case squarely presents the issue left undecided by this Court in its previous decision in this matter. That issue is whether a state may enact a statute barring tribal Indians but not non-Indians, from state court for hearing damage actions against non-Indian defendants in state court.

Respondent, Wold Engineering, urges this Court to uphold the state statute that bars all tribal Indians residing on the four Reservations in North Dakota from access to state court for the enforcement of their damages actions against non-Indians.

This Court previously held in this matter that such a state statute is not required nor authorized by federal law, particularly Public Law 280, as a measure to protect the tribal Indians in the area of their rights.

The facts of this case are simple. This case involves a breach of contract and negligence action for damages brought by the Three Affiliated Tribes against Wold Engineering, a non-Indian firm in North Dakota.

This action arose on the Fort Berthold Indian Reservation. In 1974, the Three Affiliated Tribes contracted with Wold Engineering to design and build a water supply system known as the Four Bears Water Supply System on the Fort Berthold Reservation. However, in 1977, after the project was completed, the Tribes discovered that the project failed to supply a safe and continuous water supply to the portion of the Reservation people it was intended to serve.

Despite efforts at correction by Wold Engineering, the project never functioned properly and in 1980 the Three Affiliated Tribes commenced this action in the State District Court for the Northwest Judicial District of North Dakota.

The trial court, upon Wold's motion, dismissed the Tribes' complaint, holding that actions arising on the Indian reservations in North Dakota brought by tribal members cannot be enforced against non-Indian defendants.

In 1982, the North Dakota Supreme Court affirmed the trial court's judgment and held that actions arising on the reservations and brought by tribal Indians against non-Indians cannot be heard in state court because of a state disclaimer known as the Indian Civil Jurisdiction Act of 1963, as well as the influence of Public Law 280 ousted the state court from subject matter jurisdiction.

This Court granted the Tribe the first petition for Certiorari and after hearing reversed -- pardon me, vacated the judgment of the North Dakota Supreme Court, holding that Public Law 280 neither authorized nor required such a jurisdictional bar to tribal Indians' access to state court.

Further, the Supreme Court, this Court, remanded the case for further proceedings in light of the Supreme Court's holding that this matter should be scrutinized by the court below for possible constitutional infirmities and further that Chapter 27-19 was not authorized by Public Law 280 or any other federal law as a jurisdictional disclaimer of subject matter jurisdiction in this category of actions.

The court below on remand held that the matter of state law alone, that Indians, tribal Indians, residing on the reservation were barred from maintaining these actions. The reason for this barrier arises from the state jurisdictional statute, known as the Indian Civil Jurisdiction Statute of 1963, and that this state law alone barred the tribal Indians access to state court in these cases.

QUESTION: Unless --

MR. CROSS: Unless, Justice, the consent to the full extension -- that is unless the tribal Indians either collectively as a tribal group or individually consent to the full extension of state civil jurisdiction over the pertinent property.

The only exception to this extension would be that the state court's power to levy and execute on tribal property may be exempted by state or federal law.

QUESTION: And, the waiver -- the condition is not only for this case, but for all cases?

MR. CROSS: That is right. The waiver would have the jurisdictional effect of conferring general judicial jurisdiction on the court for all cases. That would be true whether the consenting Indian was a tribal government or whether the Indian was an individual seeking to pursue a damage action in state court, Justice.

QUESTION: Would you have the same objection if the state conditioned its consent to use its courts just to the waiver of any objection to proceedings in connection with that particular case; for example, a counterclaim and making the tribe subject to discovery orders and contempt sanctions and so forth, in connection with the particular case?

MR. CROSS: Justice O'Connor, as we conceded in this Court in the previous hearing in this matter, the Three Affiliated Tribes would be subject to the counterclaim of the Respondent, Wold Engineering, up to the extent of jurisdictional --

QUESTION: I thought you said as a setoff, but not --

MR. CROSS: As a setoff.

QUESTION: -- as a counterclaim that would result in additional liability.

MR. CROSS: That is right, Your Honor.

QUESTION: How about the discovery procedures and so forth?

MR. CROSS: The Three Affiliated Tribes believe it would be proper in the interest of justice that they would be subject to discovery proceedings and to proceedings that would insure a fair trial to the non-Indian defendants.

QUESTION: Well, could the state adopt a statute just requiring consent by the tribe to jurisdiction for all purposes in connection with that particular suit? Would that be valid?

MR. CROSS: I think, Your Honor, if the statute had the purpose of insuring that a fair trial would be provided to the non-Indian defendant and that if the plaintiff, the tribe, would not conform to such requirements, then, I think, yes, the state court would be entitled to institute that suit in the interest of justice.

QUESTION: Mr. Cross, in this case, are there any individual Indians who are plaintiffs or is it just the Three Affiliated Tribes?

MR. CROSS: Just the Three Affiliated Tribes.

QUESTION: Then these tribes themselves have refused to consent to state court jurisdiction?

MR. CROSS: The consent issue did not finally become crystallized until the final decision by the North Dakota Supreme Court. In other words, the presumption had been, and it appeared under state law prior to the decision in Wold II, that the consent did not bar tribal Indians, including tribal governments, from suing non-Indians in state court. It was after the State Supreme Court took a second look at the jurisdictional effect of the state statute that they held that the intent was to completely bar tribal Indians, including suits against non-Indians for the enforcement of damages.

QUESTION: But, at any rate, it is clear that if Wold Engineering had wanted to sue the Three Affiliated Tribes in the state court, it could not have done that?

MR. CROSS: That is correct.

QUESTION: Suppose in this case the tribes comes into sue for breach of contract, for failure to perform, and Wold says we didn't fail anything, we performed and now we are counterclaiming for the amount you promised us for building this structure or whatever it was. Suppose the court finds for Wold that they didn't breach the contract and that the tribe owes them something. I take you wouldn't think the tribe's consent to the counterclaim would permit that judgment to be entered against them?

MR. CROSS: Justice White, the present law on tribal sovereign immunity should be respected and the --

QUESTION: So, your answer is, yes, that judgment should not be entered?

MR. CROSS: The counterclaim can be heard up to the extent of a recoupment or equitable setoff.

QUESTION: Well, there isn't any equitable setoff. Wold just wins the case supposedly. No breach. Wold doesn't owe the tribe a thing, but the tribe owes Wold something, but that judgment could not be entered?

MR. CROSS: Not under the law of tribal sovereign immunity as it now stands, Justice.

QUESTION: At least that is your view of tribal immunity.

MR. CROSS: Yes, that is our view of the doctrine as explained by this Court.

QUESTION: And, you would say that even if that is the case, the state could not dismiss the action in the first place? You would say the state would not be permitted to say to the tribe, now, look, if you want to file this complaint and have us entertain it, you must waive your immunity with respect to the counterclaim.

MR. CROSS: If a state statute was drafted that narrowly and it had that purpose and intent to make sure that the tribal governments were subject to counterclaims, then that would present a different issue. Here the court below --

QUESTION: Well, it may present a different issue, but how would you resolve it?

MR. CROSS: I believe that that requirement, requiring the tribes to waive their tribal sovereign immunity is the bases for maintaining a damage of action should not be allowed under the present doctrine of tribal sovereignty.

QUESTION: So, in your view, the state could not dismiss the action for failure to waive the counterclaim?

MR. CROSS: That is correct.

The statute that we have here --

QUESTION: Suppose a state has a provision that any non-resident must post a bond before filing an action. Would that apply to your case if they had such a statute?

MR. CROSS: If that statute was applied to non-residents and required such a posting to make sure that the case could be conducted fairly, then I think they may be able to do that, Your Honor.

QUESTION: They could do that?

MR. CROSS: Yes.

QUESTION: You would have no objection.

MR. CROSS: The statute at issue here bars all tribal Indians, not just tribal governments, from access to state court. If there were provisions of that statute which provided for insurance of fairness to the non-Indian defendant, such as the doctrine of forum non conveniens, the tribe would have no objection to administration, court administration of justice, that made sure that the adjudication of the non-Indians' claim as against tribal Indians and individuals was fair.

However, when a state statute completely bars all of the tribal Indians, regardless of the merits of the claim, regardless of whether issues of sovereign immunity are directly presented by the case or not, then such a state statute, I believe, is overbroad and the reason why it is overbroad is because it interferes with basic rights of due process, it interferes with equal protection of the laws.

Tribal Indians were recognized in 1957, under the state decision known as Vermillion v. Spotted Elk, to have the right of access under the open courts provision of the state Constitution and under state judicial precedent to sue for the enforcement of damages action in state court.

QUESTION: Mr. Cross, you used the term "overly broad." That is something we ordinarily use in the First Amendment context. Is there any reason for this Court to go any further here than in the particular application of the state statute of the facts of this case where you are not dealing with any individual Indians who are trying to sue, you are dealing with a tribe which is trying to sue and the tribe itself has withheld its consent?

MR. CROSS: The reason, Justice Rehnquist, that I think this Court should go further and examine the case of individual Indians is because if this statute is allowed to stand as construed, will bar in the future until the statute is either amended or rescinded all tribal Indians from access to state court.

QUESTION: We have adopted that approach in the First Amendment, that overbreadth approach that you say, that if a state court adopts a very broad construction of a statute, that interferes with First Amendment rights, a person who could have gotten it under a narrow construction could still challenge it. But, I don't believe we have gone outside of the First Amendment in that area and certainly this is just a straight Indian law case.

MR. CROSS: I believe that this is an equal protection and due process case as well in that the rights of the tribal people had to maintain damages actions in state court have now been taken away from them, not just tribal governments, not just a reasonable constraint on the exercise of --

QUESTION: But, your clients aren't individual Indians.

MR. CROSS: I think it is even more compelling in this case, Justice, because the Indian tribe acts on behalf of its tribal people.

If the access to state court for the reasonable enforcement of their damages claim is completely taken away, it is not just the tribe per se that is going to suffer, but the individuals as well.

QUESTION: Do you think your case is stronger if you can bring in the rights of individual Indians as opposed to just the right of your own client?

MR. CROSS: I think the case is stronger in the sense that the construction of the state statute bars all tribal plaintiffs and if the statute stands it will continue to bar the plaintiffs in the future.

The reason why I think that the tribal government should be able to assert those rights and to bring that focus to the scope of the statute is because the tribal government is a representative of the Indian people and many times has the only wherewithal to challenge statutes such as these that are unfair.

QUESTION: Would you explain how the tribe and non-Indian citizens are similarly situated for purposes of an equal protection analysis? It just seems to me they are not the same because the tribe is not subject to the jurisdiction at all of the state courts under your view, not even subject to the counterclaim in this case. So, how are they similarly situated for purposes of equal protection?

MR. CROSS: The tribe and Indian individuals, when they filed in state court, are subject to the procedural restriction, and, as I mentioned before, the reasonable procedural restriction that insures a fair trial.

Just as the United States, when it sues in state court, if they fail to comply with the restrictions that apply to everyone bringing the suit and the maintaining of the suit, that the case can be dismissed for those reasons.

The questions as I understand them today center on whether or not a state court or a state could pass a statute allowing the enforcement of affirmative relief against --

QUESTION: Well, if two non-Indian parties, plaintiff and defendant, were suing in the state court of North Dakota, the plaintiff in the case would be subject to a suit for a counterclaim in that suit by the defendant and you have told us this morning again that in your view the tribe would not be subject to a counterclaim --

MR. CROSS: The tribe --

QUESTION: -- and as a result they are not similarly situated for purposes of equal protection analysis is how it appears to me anyway.

MR. CROSS: The tribe as a governmental entity is similarly situation, I believe, in the sense that they are willing to go into state court and be bound by all the reasonable procedural restrictions, just as the United States when they sue in state court will be bound.

The only difference between the tribe and the non-Indian plaintiff that wished to sue is that the tribe, along with all of the tribal Indians, are barred from that court, so that we don't reach the further question of what sort of constraints could be placed on the tribe's appearance. So, it seems to me --

QUESTION: Well, but we do have in this case a defendant wanting to make a counterclaim, don't we?

MR. CROSS: Yes. And, if they can maintain that counterclaim, that counterclaim can be heard to the extent of a recoupment or equitable --

QUESTION: But, not to the extent that would be available if the defendant were not an Indian tribe.

MR. CROSS: That is correct.

QUESTION: So, how could they be similarly situated then?

MR. CROSS: For purposes of equal protection, I think there may be difficulties in comparing Indian tribes to non-Indian plaintiffs, however, the other facet of the due process claim requires the court be open on a reasonable basis.

The tribes are willing to go into state court and be bound by all of the procedural restrictions, be bound by res judicata, be bound by all of those elements that make for a fair trial.

The only difference being is that an Indian tribe is not a non-Indian plaintiff. It cannot be sued except with its consent, except to the extent for equitable setoff or recoupment.

QUESTION: Mr. Cross, since the case was here before, has the tribe now altered its laws so that a suit would be possible in tribal court today against Wold Engineering?

MR. CROSS: The tribe has altered its laws and a suit would be possible in the sense that the tribal code now recognizes jurisdiction over non-Indians. So that the tribal government could proceed against Wold Engineering or a party like Wold Engineering in tribal court.

The problem is that the State of North Dakota in a case entitled Lowe v. Cloud does not recognize the enforceability of tribal court judgments from state courts. Consequently, a situation where a non-Indian defendant is a non-resident of the reservation, has no assets on the reservation, there would be serious question about the efficacy of such a proceeding.

QUESTION: Could the tribe have sued Wold in federal court?

MR. CROSS: No, Your Honor. There was a case somewhat similar to this called Chance v. White Lightening and that involved an effort to sue, first, in federal district court, in light of this decision, in light of the Wold I decision in state court.

There, the facts involved simply a tort action, as I recall, and the federal district courts, being courts of limited jurisdiction, held that there was no subject-matter jurisdiction.

QUESTION: I thought there was a special section of 28 that said what an Indian tribe is is a plaintiff that can sue. Am I wrong in that?

MR. CROSS: Your Honor, there is a special section that allows Indian tribes to sue, however, that does not address the issue of subject-matter jurisdiction. There are still subject to the federal question and to other limitations on federal court jurisdiction. Consequently, if a tribe attempted to bring a contract action of this sort in federal district court or the appropriate federal court, that they would still be subject to the limitation that this question must be cognizable under the judicial power the federal courts have.

And, as I understand it, a mere contract action, a mere breach of contract action, a negligence action, would not present federal questions. It would be simply a run-of-the-mill contract action that should be appropriately heard in state court.

QUESTION: Well, what if it was a -- Federal courts hear state law questions all the time in diversity cases.

MR. CROSS: There is no diversity here, Your Honor.

QUESTION: Well, there may not be, but there is a statute that says Indians can come into court. Why isn't that -- It may be the governing law would be state law, but why can't the Indians come into federal court?

MR. CROSS: Based on the decisions that I have read, Your Honor, 28-C 1362, I believe, that allows tribes to sue in federal court relates only to their personal right to sue free of some limitations. However, the subject --

QUESTION: Free of the problem of diversity.

MR. CROSS: I don't believe that is correct, Your Honor.

QUESTION: The provision is completely useless then.

MR. CROSS: The provision allows Indian tribes to come in and sue and --

QUESTION: They didn't need that statute to come into federal court on a federal question.

MR. CROSS: I think in a sense that the federal statute opening the federal courts to the Indian tribes simply confirms existing law. This Court has previously held in cases before that statute was enacted that Indian tribes have the capacity to maintain a legal action in their own right.

QUESTION: So, you say then the statute just wasn't needed at all.

MR. CROSS: I think the statute within the limits that it functions is important, but I don't think it would allow the Indian tribes to come and sue in federal district court on matters of this kind.

QUESTION: On a state law question?

MR. CROSS: On solely a state law question except in a diversity situation.

This statute, as we have said before, excludes all tribal Indians on the four reservations in North Dakota from access to state court. Now, the state court previously, in a decision entitled Vermillion v. Spotted Elk, had held that Indian tribes or at least Indian individuals were entitled to enforce their rights in state court.

However, in 1963, the state enacted the Indian Civil Jurisdiction Act. That statute has been construed by the state court below of barring tribal Indians from access until they consent to the extension of the state civil jurisdiction over their person and property on the reservation.

Now, this consent goes far beyond the issue at hand in the particular case of whether Wold Engineering may or may not maintain a counterclaim. It would subject the tribe and the consenting individuals under Section 27-19-05 of the state statute to general state judicial jurisdiction for all cases as a condition for maintaining this one damages action against a non-Indian in state court.

It would also confer on the state the authority to legislate in a variety of subject-matter areas in contract, in divorce, in guardianships, in other areas not limited to those subject-matter categories that are now presently reserved to tribal regulation.

So that the design and purpose of the statute, as construed by the court below, is to completely bar tribal Indians from maintaining these actions unless they consent to the extension of state civil jurisdiction for virtually all purposes, the only exception being that the state may not use their enforcement powers to levy or execute on tribal Indian property unless it is authorized by federal or state law.

We believe -- The tribes believe and have argued in their brief that such restrictions on the civil rights of tribal Indians, the restriction on due process rights of tribal Indians, requires a special justification. It requires special justification because the matter peeves two issues of Indian ancestry and Indian identity.

There is no other bases for the state statute. This Court, in its prior decision in this matter, said that the state statute was not required by federal law to protect the rights of tribal Indians in the sense of the pre-emption doctrine; that this statute did not require a governing federal law under Public Law 280.

Consequently, the state statute bars a -- bears a heavy burden of justification to allow it to stand to restrict all tribal Indians from maintaining the action in state court.

Mr. Chief Justice, I would like to reserve the remaining time.

CHIEF JUSTICE BURGER: Very well.

Mr. Lee?

ORAL ARGUMENT OF GARY H. LEE, ESQ. ON BEHALF OF THE RESPONDENTS

MR. LEE: Mr. Chief Justice, and may it please the Court:

The North Dakota legislative plan, Chapter 27-19 of the North Dakota Century Code, a 1963 jurisdictional act, which Mr. Cross refers to, and the North Dakota Supreme Court's decision in this case, and Wold Engineering, all seek precisely the same thing and that is equal justice for everyone under the law.

The current situation in North Dakota guarantees to everyone that equal access.

Three Tribes and Mr. Cross argues here today that somehow Indian litigants or tribal litigants is being denied access to a court in situations where others have that access and that is simply not so.

In the case of an Indian -- In all cases, where the facts are the same, the access of the litigants is the same. If you have a situation of an Indian Litigant against a non-Indian litigant or a non-Indian litigant against an Indian litigant for an off-reservation occurrence, all litigants in the State of North Dakota have equal access to the state courts of North Dakota. They all have the same rights, remedies and procedures.

In the situation of an Indian litigant against a non-Indian litigant or a non-Indian litigant against an Indian litigant, the facts that we have in this case, the state court of North Dakota would impose the same jurisdictional restraints and requirements on all litigants and would deny access in those cases to all litigants. Again, the same rights, procedures and privileges would be available to all under North Dakota law.

So, as it now stands, the North Dakota jurisdictional plan guarantees for everyone equal justice under the law.

QUESTION: Mr. Lee, let's take a little easier one. A used car salesman sells a car to an Indian and to an ordinary citizen off the reservation and both of them are lemons. The man can sue, the Indian can't.

MR. LEE: In that situation, Your Honor, I believe both litigants would be allowed to sue. In that situation, you would have an off-reservation occurrence. The Indian litigant --

QUESTION: No, no, he sold the car on the reservation.

MR. LEE: The car was sold on the reservation?

QUESTION: Yes.

MR. LEE: To a reservation Indian?

QUESTION: Yes.

MR. LEE: In that situation, Your Honor, yes, that is correct. There would be no access to the Indian litigant against the used car dealer in state court. There would, however, be a forum available --

QUESTION: Wouldn't somebody at least say oophs, sorry, or something like that?

MR. LEE: Well, I would hope that somebody would recognize the problem and that is a problem that has been in existence in the State of North Dakota for well over 20 years and everyone has known that that problem has existed, yet, in that period of time, not one effort has been made to resolve the problem except this case here today.

What Three Tribes here seeks today plain and simple is unequal access to the courts of North Dakota. They wish to be able to use the courts as plaintiffs without ever having to run the risk of appearing in those same courts as a defendant and that is an unequal access.

Furthermore, the access that they seek, at least in the state court in the arguments before the North Dakota Supreme Court was an access which would allow them all procedural protections and all procedural rights and remedies and the non-Indian litigant would have none of those same protections and same privileges accorded to him.

This is the first time today that Mr. Cross or the attorney arguing for the Indian litigant has admitted the possibility that North Dakota rules of court procedure might be applicable on the reservation.

In the state court below, that position -- a contrary position was taken and that being that North Dakota rules of court procedure would not apply against the Indian litigant.

The North Dakota decision does not deny equal protection. Equal protection is violated when one group has a distinct advantage over another group and that is not the situation that is present here. Everyone, again, given the same facts and the same situation, has the same access. Again, what Three Tribes seeks is unequal status and unequal protection.

QUESTION: Or the same non-access?

MR. LEE: Or the same non-access, that is correct.

QUESTION: Do you think non-access to this tribe to the state courts is a denial of federal policy?

MR. LEE: No,. I do not, Your Honor.

QUESTION: Why not?

MR. LEE: Federal policy has long recognized access by Indian courts to state courts, but it has never been required of a state court to take that jurisdiction. And --

QUESTION: Yes, but you end up with a situation where there is no forum available for the resolution of this dispute.

MR. LEE: That is not correct. I believe that there is a forum available in this case.

QUESTION: What is the forum?

MR. LEE: It would be either a state court, if the Indian people chose to follow the rules laid out in Chapter 27-19 and agreed to have their case brought. An order of the district court which dismissed this case left the action open. The Indians are free to reinstitute their action at any time following compliance with the rules of the North Dakota court set down in 27-19.

QUESTION: What about the statute of limitations?

MR. LEE: There may be a statute of limitations question, however, given the nature of the litigation here today, and the fact that this has been going through the procedure, those limitations, statute of limitation problems may be tolled.

QUESTION: Well, maybe. Will they be tolled? Let's not speculate.

MR. LEE: It would be speculation for me to try and guess either way, sir.

QUESTION: Do you have another suggestion for a forum?

MR. LEE: Yes, Your Honor, tribal court. Indian people as a sovereign nation have the power, I believe, to provide a forum for the protection of their own people and they --

QUESTION: Can they enforce it outside of the reservation?

MR. LEE: If the people of the State of North Dakota are going to refuse to entertain this type of case --

QUESTION: I am talking about what you have now in North Dakota. You can't enforce a tribal rule outside the reservation, right?

MR. LEE: That is the rule right now, but I would submit that that rule is incorrect.

QUESTION: Well, that is what we are talking about right now.

MR. LEE: That rule is incorrect, sir, and I would say that if the courts of North Dakota are not going to recognize jurisdiction on the reservation and there is a forum which is set up to fill that void, that the decisions that come from the forum that has been created to fill that void, would have to be recognized off the reservation.

QUESTION: Well, is Wold subject to service by a tribal court?

MR. LEE: Yes, I would submit that they would be.

QUESTION: The tribal court can serve a summons state-wide?

MR. LEE: Perhaps not at the time this action arose, but at the current time I would -- If they have taken affirmative steps to create a forum to fill the void and they provide reasonable rules of procedure which guarantee that reasonable fairness and equity is available to all litigants coming into a tribal forum, I would submit that those processes and services off the reservation would have to be honored by Wold Engineering and any other non-Indian litigant.

QUESTION: Well, is it in existence today? It is not.

MR. LEE: The forum is --

QUESTION: How is it going to help this case if it is not in existence?

MR. LEE: The forum -- I will plead ignorance on this. I don't know what the current status of the Indian forum is. What I am submitting is that the Indian people, as a sovereign, do have the power to protect themselves and to create a forum and if the --

QUESTION: To enforce?

MR. LEE: To enforce on the reservation.

QUESTION: Off the reservation.

MR. LEE: Off the reservation. If the people of the State of North Dakota --

QUESTION: How can the Indian enforce off the reservation, how?

MR. LEE: The State of North Dakota, if it is going to refuse to entertain this type of jurisdiction in its own courts must recognize that the jurisdictional void has to be filled somehow.

QUESTION: Has it done so?

MR. LEE: Not at this point.

QUESTION: Is it thinking about doing so?

MR. LEE: Not that I am aware of.

QUESTION: Well, why not forget it?

QUESTION: Mr. Lee, may I ask the other side of the coin? If you client has -- I guess there is a balance due on the contract that is unpaid. How do you go about collecting that money?

MR. LEE: At the present time, I don't believe that there is a mechanism for collecting it. The North Dakota Supreme Court in its decision stated that if the Indian people were to somehow consent to state court jurisdiction, that to the extent that it is allowed under federal or state policy, the North Dakota court would have to -- the North Dakota decision could be enforced on the reservation. That mechanism has not yet been fully explored.

At the current time, I don't believe that there is a mechanism for enforcing a judgment received against the Indian tribe outside of perhaps their own courts recognizing under some principle of comity the decision of the North Dakota court.

And, I am saying that the concomitant relationship would have to exist between the state courts and the people on the Indian reservation. If the state court of North Dakota is going to refuse to entertain jurisdiction on the reservation, and principles of comity would require it to recognize those decisions which come from the reservation and give them force and effect off the reservation. The jurisdictional void has to be filled somehow.

Mr. Cross is here today arguing that the North Dakota decision denied equal protection of the laws. Even if the Court is to somehow believe that a classification is here being made, I would submit that the North Dakota jurisdictional plan could still survive.

The goal of equal protection is to end a caste-based society where classification based upon race or other immutable characteristics are perpetrated and continued.

It also involves, I believe, a bit of overreaching, a substantial amount of overreaching, by the group with the political power to control and to keep in a subservient position that group without political power.

When those facts jell and the pot is churned, then you have a situation where overreaching occurs and equal protection is denied to certain people.

The North Dakota law does not create a caste-based society. As it currently stands, everyone is treated the same, everyone similarly situated.

Three Tribes' position in this case will, however, create a caste-based society. It will have a situation where Indian litigants will be allowed to use the state forum in North Dakota without ever having to appear as defendants. They will also have all rules of procedure available to them, while the non-Indian litigant will have none. This is a caste-based society and this would be greatly unfair and would violate the due process of the laws.

Secondly, the North Dakota jurisdictional plan draws no distinction based upon race or other immutable characteristics.

The disability of the Indian litigant in this case comes from his tribal status and being located on the reservation and those are political concerns and political considerations, not necessarily racial.

Furthermore, if they are racial, they are not immutable, because they can be removed. The classic equal protection case is a situation where no matter what one does to try and better himself, to try to improve himself, to try to change his position, he cannot do it, because the legislation refuses to allow him that chance.

The North Dakota law gives the Indian people a chance to remove the impediment to the state court in this case and all they have to do to receive that protection is simply agree to follow and obey the reasonable rules of court set out in North Dakota and to obey and agree to follow the reasonable rules of substantive law which have been laid out in the State of North Dakota.

So, there is no immutable characteristic which cannot be removed.

If that is the case, it would seem to me that the proper standard for review on this case would be the rational basis standard and if you apply the rational basis test to this case, you can see that the North Dakota Supreme Court enacted its legislation pursuant to authority granted by Congress in Public Law 280.

Further, the people of the State of North Dakota, at the time they enacted the Indian Civil Rights Act in -- The Indian Civil Jurisdiction Act in 1963 could have unilaterally imposed all jurisdiction on the Indian people without listening to them, without paying them any attention whatsoever. Instead of doing that, they held legislative hearings around the state and the Indian people came to those legislative hearings and told the State of North Dakota stay out, we want all or nothing at all jurisdiction until we ask for it. And, that, I think, also destroys traditional equal protection problem here in that we do not have the overreaching by the group with political power.

In fact, we have a situation where the group that had the ultimate political power was leaning backwards to try and give the Indian people some self-determination and a voice in their own destiny.

A compact or compromise was reached, if you will, between the people of the State of North Dakota and the Indians residing on their reservations in the State of North Dakota. This subject-matter jurisdictional plan, this compact and compromise existing between the Indian people and between the State of North Dakota is now over 20 years old.

The Indian people in the State of North Dakota asked for this jurisdictional plan and in that period of time, since this jurisdictional plan was enacted, the North Dakota Supreme Court has had a number of occasions to rule on the issues that are before this Court today and in 1963, only about two or three months after the jurisdictional plan went into effect, the first case came down and in that first case the North Dakota Supreme Court held that the North Dakota courts would have no subject-matter jurisdiction on the Indian reservation in matters involving Indian litigant.

So, for 20 years this jurisdictional setting has been known to the Indian people. They knew or should have known that for 20 years that there would be this problem that would present itself some day, yet in that 20-year period of time, not once did the Indian people come to the North Dakota legislature and try to rework or renegotiate a jurisdictional plan that would be workable and agreeable to everyone. Not once in that 20-year period of time did the Indian people set up an election or try to poll the tribal election to see if they would want to take this jurisdictional plan and not once in that 20-year period of time, not until this case apparently, did the Indian people act to create their own forum which would, in the future, be able to control these sorts of situations.

So, now, 20 years after it has been known to them, they try to come through the backdoor of the courthouse, while at the same time denying all other litigants access to the front door of the courthouse.

The solution to this case exists in the North Dakota law and it is a political solution that should be worked out through political compromise between the Indian people and the State of North Dakota. That was the situation that Congress envisioned in Public Law 280. It is the situation that Congress envisioned and still exists by the Indian Civil Rights Act of 1968.

The jurisdictional plan that should go into effect should result not in some forced, crammed-down jurisdiction by the Indian people in the State of North Dakota, but through a negotiated political process. If people would get together and act reasonably on a situation like this, reasonable results could be obtained; a reasonable plan for either enforcing the Indian forum could be reached or a reasonable plan for bringing about the orderly assumption of state court jurisdiction on the Indian reservations could be obtained. There has been no denial of equal protection in this case and should the Indian plan -- should Three Tribes jurisdictional plan be adopted, in fact, we will have unequal protection and it will be the unequal protection of having the class of super plaintiffs holding down the class of hapless defendants and that will be a situation which will continue indefinitely.

Further, there has been no denial of due process, the goal of due process, as I understand it, is to preserve the fundamental rights guaranteed to people under the Constitution and that is a -- one of those rights is a guarantee of access to a forum. There has been a guaranteed forum. As explained before, a forum existed. Either tribally the Indian people had the power to create this forum and they had it for 20 years but failed to act upon that power and now they seek, again, like I say, backdoor their way in --

QUESTION: Well, Mr. Lee, it is certainly understandable, I suppose, why the Indian tribes wouldn't want to submit themselves to jurisdiction of state courts for all purposes, isn't it, because they might well not want to have the state court handling domestic relation matters of tribal Indians and things of that kind? I think it is entirely understandable that the tribe has not opted to subject itself to the jurisdiction of the state courts and state laws generally.

MR. LEE: If the fears are that the people of the State of North Dakota are going to ignore the wishes of the Indian people, that would be a factual problem that would develop on a case-by-case basis, but the law, as it is written, would solve that problem.

The law, as it is currently written in North Dakota, Chapter 27-19, follows the framework set out by the language in Public Law 280 and it states that the law as between private persons shall apply.

Therefore, those matters which are intrinsically tribal, which are inherently tribal, such as tribal elections, membership in the tribe, distribution of tribal benefits, those will remain always tribal and the state court of North Dakota can never assume jurisdiction over --

QUESTION: How about matters of adoption or child custody or marital dissolution, inheritance, things of that kind?

MR. LEE: I believe inheritance is specifically carved out, but in those other areas which could be included, the North Dakota law also includes a provision which answers that question, Justice O'Connor, and it states that the tribal customs and tribal traditions of the Indian people should first be examined by the North Dakota courts and where possible that those customs and traditions should be given credence, should be given effect. I believe it is specifically Provision 27-19-11 and in that particular section the North Dakota court is directed to, if a conflict situation arises, resolve that conflict in the favor of the Indian people.

And, so, if the state law has a domestic relations policy which would be contrary to the policy of the Indian people. The state court should first look to the Indian policy and try to implement that Indian policy before it embarks upon the implementation of its own state policy.

So, that question is also, at least facially in the statute, answered by the North Dakota law as it currently exists.

QUESTION: Mr. Lee, getting back to your point about the Indian should have been negotiating all along these 20 years, how many Indians do you have in the state legislature?

MR. LEE: There are no Indians that I am aware of who are members of the state legislature.

QUESTION: Well, how could they negotiated.

MR. LEE: They could negotiate, sir, I believe, the same way they negotiated last time. In 1963, when the people --

QUESTION: You mean negotiate and come up with the same thing they have got now?

MR. LEE: Justice Marshall, in 1963, the people of the State of North Dakota had initially drafted a jurisdictional plan which would have crammed the state jurisdiction down the Indian people's throats. The plan was for a unilateral state court assumption of jurisdiction. The Indian people appeared en masse before the state legislature and before various legislative committees. Their tribal chairman as spokesman got up --

QUESTION: But they had no clout. How can you have clout if you don't have a vote?

MR. LEE: They had clout in 1963. They had enough clout in 1963 --

QUESTION: How many legislators did they have in 1963?

MR. LEE: Again, sir, I don't believe they had any, but in --

QUESTION: Have you ever heard of one in South Dakota ever?

MR. LEE: In North Dakota, sir? I am --

QUESTION: Ever? Have you ever had an Indian legislator?

MR. LEE: Mr. Cross, has there ever been an Indian legislator?

MR. CROSS: I believe that there has been one or two in the history of the state legislature.

MR. LEE: Thank you.

They had, sir, political clout in 1963. They had enough political clout in 1963 to be able to come in and derail the North Dakota jurisdictional plan.

Given that situation, they have now had 20 years to again come, again en masse, to ask the state legislature, let's try and work something out here.

It is probably not a one-sided problem also. I would say that the people of the State of North Dakota should have had a duty to go to the Indian people and say, look, we have this jurisdictional void, let's try and work out some reasonable policy where we can solve this dilemma without having to resort to the judicial process again, again, and again.

But, the Indian people did have enough political clout in --

QUESTION: May I ask this question, Mr. Lee? You suggested a couple of times that maybe they should have set up their own judicial system and then they could have brought this action in their own court and might have solved the problem. But, what if they set up a judicial system without abandoning their claim of sovereign immunity? Would the case be any different? Say they got a judgment and so forth and they wanted to enforce it in state court and said, no, we won't let you consent to a counterclaim.

MR. LEE: I would submit, Your Honor, we have to concede the issue of sovereign immunity. The rulings that have been handed down by this Court in the United States F&G case and in the history of the Indian laws in the United States and North Dakota's obvious attempts to recognize those rulings, that we would have to admit that they do have sovereign immunity from the judgment.

But, I believe that is a different question from whether or not they should be at least required to come into the court on the same footing as everybody else, to play by the same rules, to be bound by the same substantive rights and remedies and also to agree to be bound by the same rules of procedure.

Again, in the North Dakota --

QUESTION: How can it be the same if they have sovereign immunity? I am a little puzzled.

MR. LEE: If --

QUESTION: If not the same rules except they can't lose.

MR. LEE: The people of the State of North Dakota recognize that its own state has sovereign immunity to the extent that it hasn't been waived and the State of North Dakota has not waived its sovereign immunity except in contract actions.

So, it is not a foreign situation for the people of the State of North Dakota to be faced with a sovereign with asserts its sovereign immunity and to the extent that a tribe is a sovereign, we would have to concede that they do have this immunity to pursue.

QUESTION: But, the condition that your legislation imposes, as I understand it, is that they must waive their sovereign immunity. Don't they have to consent to be subject to the jurisdiction of state law?

MR. LEE: The Indian people have to subject themselves to the jurisdiction of the State of North Dakota to the same extent that those rules would be applicable in actions involving private citizens.

If you have a sovereign, a sovereign entity involved, then the rules are not the same as they are for private persons. And, in that instance, the state court of North Dakota may well be forced to recognize the sovereign immunity of the tribe. And, I would not submit that we could rest or strip the tribe of that sovereign status. They have the immunity. But that again is not an immunity from the reasonable rules of court, from process, from sanctions, from discovery, and the like, and that is what was asserted below in the North Dakota Supreme Court.

QUESTION: You are not suggesting, are you, that if this suit were brought by individual Indians rather than by the tribes that the result would be different in your opinion? Would individual Indians have any right to sue in state court?

MR. LEE: Not under these facts unless they first agree, either individually or collectively, to consent to state court jurisdiction.

QUESTION: Well -- I don't quite understand your answer, but Indians themselves individually can't waive sovereign immunity, only the state can do that.

MR. LEE: The Indian people wouldn't an individual sovereign immunity and the individual Indian would be subject to execution levy and the like. To the extent that state laws of private property and persons apply, they would be applicable on the reservation to the individual Indian litigant. But, there is a protection For the individual Indian who is dissatisfied with that, because as an individual he can withdraw his acceptance and reassert his tribal status. So, that problem is taken care of in the North Dakota law as well. If the individual Indian becomes dissatisfied with the North Dakota jurisdictional plan that he has consented to, he can withdraw that consent and retreat back into the protections afforded by tribal status.

I am not sure I answered the question sufficiently.

QUESTION: Neither am I.

(Laughter)

QUESTION: Can the tribe itself do that, give a consent for the purpose of a short period of time and then withdraw the complaint?

MR. LEE: Yes, they can, sir. The North Dakota jurisdictional plan says that if an individual Indian consents, and I think the tribe acting as a corporate entity might be considered like a person in that regard, if they consent, they can withdraw that consent later on down the road if they become dissatisfied with North Dakota jurisdictional plans and rules.

QUESTION: Is it your submission -- I want to be sure I understand you -- that they could give that kind of consent for the purpose of a short period of time and retain their sovereign immunity?

MR. LEE: Their sovereign immunity from liability.

QUESTION: And from execution?

MR. LEE: And, from execution judgment and the like.

QUESTION: It seems to me they have a pretty simple solution then. They could just consent for this case, have it litigated, and even if they lose they don't have to pay. I don't know why they don't do that.

QUESTION: Well, now, the consent provisions of the statute don't authorize consent just for one case.

MR. LEE: No.

QUESTION: It is my understanding that the consent has to be for all purposes and can only be removed after going through certain time requirements and posting and notice and so forth.

MR. LEE: That is correct, but there is the possibility to remove the consent once -- You know, if --.

QUESTION: Yes, but the consent has to be given for all purposes and it is in effect for a certain period of time until statutory procedures are complied with determining it.

MR. LEE: That is correct.

The yardstick of any law is not often the yardstick of the common man, but in this particular case, we are dealing with something known as a fundamental right, then the layman's perception is the yardstick to judge whether or not something is fair or fundamentally unfair.

I would submit that outside Three Affiliated Tribes, if you were to propose this particular jurisdictional plan where one side would have all access to the court for all purposes and all procedures available for their protection as Plaintiffs, and the Defendant would have none of the rights and remedies available and none of the procedural safeguards available to him, that there would not be a common man or layman who would say that that is fundamentally fair. In fact, he would say that that is fundamentally unfair. That is the situation that the Three Affiliated Tribes is seeking to impose in the state court of North Dakota.

To conclude, I would like to close with a small analogy of a baseball game. Imagine, if you will, one team at the plate where the batter has an unlimited number of swings to make contact with the ball, and, furthermore, the team at bat has an unlimited number of outs to score as many runs as they want to for as long as they want to keep scoring, and the team that is in the outfield cannot even quit the game.

Now, that is the jurisdictional plan and scheme that the Indian people are trying to impose on the people of North Dakota where the people of North Dakota will be forever the team that is out in the field shagging balls.

CHIEF JUSTICE BURGER: Your time has expired now, counsel.

MR. LEE: Thank you, sir.

If it please the Court, I would ask that the decision of the North Dakota Supreme Court be affirmed.

Thank you.

CHIEF JUSTICE BURGER: Do you have anything further, Mr. Cross?

ORAL ARGUMENT OF RAYMOND CROSS, ESQ. ON BEHALF OF THE PETITIONER -- REBUTTAL

MR. CROSS: Yes, Mr. Chief Justice, to point out that the tribal courts are open to non-Indian plaintiffs and many non-Indian plaintiffs for debt collection and other purpose take advantage of the tribal courts to maintain actions precisely of the kind that are at stake here.

However, by contrast, the state courts are not open to tribal Indians or tribal governments unless they consent to the extension or virtually complete state civil jurisdiction over the person or property.

The tribes believe that that infringes on their due process and equal protection rights and as well it would interfere with operation of fundamentally important federal policies governing the Indian affairs area.

First of all, it would interfere with the doctrine of the protection of the political independence of the tribes and the economic independence of the tribes.

If such a state statute is allowed to stand, it means that individuals will be compelled to consent to the extension of state civil jurisdiction, not only for the purpose of the case at hand, but for extension of state legislative and judicial jurisdiction generally except as limited by terms I of the statute. That would fundamentally impair how the tribes operate under federal law.

The result of such a state statute would be the creation of a checkerboard jurisdictional system unknown now in federal Indian law. Individuals would be compelled -- Individuals tribal members, including governments, would be compelled to commit themselves to accepting state civil jurisdiction generally.

QUESTION: Can an individual waive Indian sovereignty?

MR. CROSS: Under the doctrines of this Court, Justice Marshall, the individuals have a right known as the Williams v. Lee right. Our position is that if the state court otherwise has subject-matter jurisdiction over a tribal member's complaint, not a tribal government complaint, but a tribal member's complaint, that there may be the possibility that the non-Indian can maintain their damages action or the counterclaim against an individual tribal member but not against a tribal government.

QUESTION: Well, how can an individual waive a state sovereignty?

MR. CROSS: I may not have answered your question Justice Marshall.

QUESTION: No.

MR. CROSS: The answer to your question is that the individual Indian cannot waive the tribal governmental sovereignty. At most, through the individual consent procedure 27-19-05, it can submit himself -- the individual can submit himself to the full scope of state jurisdiction. What would happen in the usual case, and this has already been tried in state court, is that the individual would have to consent, the individual tribal member would have to consent, perhaps as a basis of extension of credit, on the reservation by a non-Indian.

So, you would have a system in which, as a usual matter, the non-Indian would become subject to an unclear area of law. On the one hand, they have submitted themselves under the state civil jurisdiction. On the other hand, tribal government would assert that they have the right to --

QUESTION: I am talking about under your tribal government how can an individual waive sovereignty?

MR. CROSS: The individual, Justice Marshall, is that they cannot waive tribal sovereignty. The state statute appears to force the individual to come in to, if they want access to state court, to submit themselves individually to all of the state legislative powers.

So, a tribal Indian as he tries for access to state court must say through a written statement, through an executed statement with the county auditor where he resides, that he is going to accept state jurisdiction; that he is going to accept state jurisdiction for virtually all purposes.

And, that is why we believe this state statute interferes not only with the established due process rights of the tribal members involved, but also would frustrate the operation of fundamental federal policies.

Thank you, Mr. Chief Justice.

CHIEF JUSTICE BURGER: Thank you, gentlemen.

The case is submitted.

(Whereupon, at 11:03 a.m., the case in the above-entitled matter was submitted.)