Plains Commerce Bank v. Long Family Land and Cattle Company, Inc.: an introduction with questions

South Dakota Law Review, Fall, 2009 by Frank Pommersheim

Judge Kornman noted that despite numerous opportunities the Bank never challenged the source of law for the Longs' discrimination claim during the trial court proceedings. He also concluded that a basic principle of appellate jurisdiction permits a reviewing court to affirm the judgment on any ground supported by the record, whether or not that ground was urged or ruled upon below. (30) As a result, summary judgment was granted in favor of the Longs.

VI. PROCEEDINGS BEFORE THE EIGHTH CIRCUIT COURT OF APPEALS

The Bank appealed to the Eighth Circuit Court of Appeals. (31) It raised the same two issues that it did in the district court, namely that the Cheyenne River Sioux Tribal Court did not have subject matter jurisdiction over the discrimination cause of action filed by the Longs against the Bank and that the Bank was denied due process in the course of the adjudication of the discrimination claim.

A. JURISDICTION

The unanimous decision authored by Judge Murphy essentially tracked the analytical reasoning of Judge Kornman's decision. In accordance with Montana principles, there clearly was a consensual agreement--the lease/option to purchase--between the parties. No real disagreement there. The sticking point (again) was whether the discrimination claim was a permissible "other means" of regulation as set out in the Montana proviso.

The Bank, however, did make a novel argument on the consensual agreement issue. It argued that it did not have any consensual relationship with "the tribe or its members," (32) but with the Long Family Land and Cattle Company, a South Dakota corporation. The Eighth Circuit rejected the extreme formalism of this argument stating that: "Because the bank not only transacted with a corporation of conspicuous tribal character, but also formed concrete commercial relationships with the Indian owners of that corporation, we conclude that it engaged in the kind of consensual relationship contemplated by Montana." (33)

The court also found that the discrimination claim fell within the legitimate zone of "other means." The court noted that the Longs' discrimination claim:

   arose directly from their preexisting commercial relationship with
   the bank. While the personal injury tort at issue in Strate defined
   the duties of one stranger to another, the tribal tort in this case
   provided a standard of conduct to govern the bank's preexisting
   relationship with the Longs.... [T]his case is about the power of
   the Tribe to hold nonmembers like the bank to a minimum standard of
   fairness when they voluntarily deal with tribal members. (34)

B. DUE PROCESS

The Bank renewed its due process claim before the Eighth Circuit. The due process claim consisted of three interrelated assertions, namely that the tribal appellate court should have been constrained to address the discrimination claim "under the federal law mentioned by the trial judge," that the Bank lacked proper notice "that it was facing a tribal rather than a federal claim for discrimination," and lastly that "it should not have been subject to liability for a tort that had not previously been recognized." (35)