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

South Dakota Law Review, Fall, 2009 by Frank Pommersheim

The circuit panel found no violation of due process. Judge Murphy's opinion indicated that it is standard (federal and state) appellate practice to uphold a judgment on grounds not decided or discussed by the lower court so long as those grounds are supported by the record. It also indicated that there was no deficiency in notice or the opportunity to defend. The Longs never asserted a violation of federal law, the Bank never sought dismissal on grounds of vagueness, and the jury instructions made no reference to federal law. (36) Finally, Judge Murphy noted that although the discrimination claim was a case of first impression within the Cheyenne River Sioux Tribal Court system, such was the nature of common law development:

   Tort law has historically developed incrementally in the courts. If
   the encouragement of tribal self governance through the development
   of legal institutions is to remain a federal priority, then tribal
   appellate courts must be given latitude to shape their own common
   law to respond to the cases before them, as our own courts have
   done over the centuries. (37)

VII. PROCEEDINGS BEFORE THE UNITED STATES SUPREME COURT

The Bank filed a petition for review by the Supreme Court. Interestingly, it sought review only of its jurisdiction claim, not its due process claim. The U.S. Supreme Court granted review on the jurisdiction issue. In at 5-4 decision, the Court reversed the Eighth Circuit. The reversal was not based on any error of law or fact, but rather on creating a new rule of law--a rule of law unknown in Indian law and very much at odds with the plain meaning of core precedents in the field.

Despite the unanimous view of the four courts below (four opinions, eight judges) that this case turned on a basic Montana analysis and that the sale of fee land was a quintessential consensual agreement, the U.S. Supreme Court, with Chief Justice Roberts writing, said no: "Montana does not permit Indian tribes to regulate the sale of non-Indian fee land." (38) Somehow, the Court concluded that the "activities" authorized by Montana for tribal regulation in the context of consensual agreements did not include the sale of fee land. It blinks both reality and the plain meaning of words to say that the sale of land is not an "activity" with regard to that land. Such a farfetched claim was not even mentioned by the petitioner in its brief or at oral argument.

This "new" and limited rule (39) was sharply criticized by Justice Ginsburg in her dissent. The dissent aptly noted that the majority opinion resolved the case "on a ground neither argued nor addressed below." (40) In addition, the majority's ruling appeared to diverge from the plain meaning of the Montana consensual agreement exception. Justice Ginsburg was nonplussed by the majority's assertion that the sale of land was not a well recognized "activity" within the ordinary sense of the word. (41)

The dissent also pointed out that "this case, it bears emphasis, involves no unwitting outsider forced to litigate under unfamiliar rules and procedures in tribal court." (42) The dissent was further perplexed by the notion that although the federal government and every state can make non-discrimination law in regard to contracts and land sales, tribes cannot. (43) In this regard, the dissent approvingly quoted the Cheyenne River Sioux Tribal Court of Appeals: "With regard to checks against discrimination, as the Tribal Court of Appeals observed, 'there is a direct and laudable convergence of federal, state, and tribal concern.'" (44)