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

South Dakota Law Review, Fall, 2009 by Frank Pommersheim

(29.) Id. at 1081-82.

(30.) Id. at 1082.

(31.) Plains Commerce Bank v. Long Family Land and Cattle Co., 491 F.3d 878 (8th Cit. 2007), rev'd, 128 S. Ct. 2709 (2008).

(32.) Montana, 450 U.S. at 565-66.

(33.) Plains Commerce Bank, 491 F.3d at 886.

(34.) Id. at 887 (emphasis added).

(35.) Id. at 890.

(36.) Id. at 891.

(37.) Id. at 892 (internal citations omitted). The Eighth Circuit Court of Appeals also pointed out that the bank was not discriminated against by the tribal court. There was no evidence of bias. The bank made no attempt to request that non-Indian jurors be summoned as permitted under tribal law, challenged no individual Indian jurors for prejudice, and did challenge the composition of the panel. Id.

(38.) Plains Commerce Bank v. Long Family Land and Cattle Co., 128 S. Ct. 2709, 2721 (2008).

(39.) There does not appear to be a single reported case involving the sale of fee land by a non-Indian to an Indian.

(40.) Plains Commerce Bank, 128 S. Ct. at 2729 (Ginsburg, J., dissenting).

(41.) Id. at 2729-30.

(42.) Id. at 2729. The bank regularly filed suit in the tribal court in other cases and conceded jurisdiction to the underlying contract claims in this case. Id.

(43.) Id. at 2731.

(44.) Id. at 2732 n.3 (quoting App. to Pet. for Cert. A-55 to A-56). This was the first time in history that the Supreme Court, albeit in a dissent, quoted a tribal court opinion.

(45.) This very issue came up at oral argument before the U.S. Supreme Court. See Transcript of Oral Argument at 28-32, Plains Commerce Bank, 128 S. Ct. 2709 (2008) (No 07-411), 2008 WL 1710923. Apparently, there is a circuit split about how to deal with the issue in the context of Rule 49(a) of the Federal Rules of Civil Procedure. See, e.g., Gillespie v. Sears, Roebuck & Co., 368 F.3d 21 (1st Cir. 2004); McCord v. Maguire, 885 F.2d 650 (9th Cir. 1989).