More questions than answers: Plains Commerce Bank v. Long Family Land and Cattle Company, Inc. and the U.S. Supreme Court's failure to define the extent of tribal civil authority over nonmembers on non-Indian land

South Dakota Law Review, Fall, 2009 by Lisa M. Slepnikoff

Next, the Court considered whether the tribal court could exercise jurisdiction under the second Montana exception which requires that the non-Indians' "conduct" threaten the "political integrity, the economic security, or the health or welfare of the tribe." (78) The Court enunciated a heightened qualification under the second exception; specifically, that the conduct must do more than cause injury to the Tribe, it must "imperil the subsistence" of the tribal community. (79) The Court determined that the sale of formerly Indian-owned fee land to a third party is not "catastrophic" to tribal self-government. (80) Accordingly, the Court found the second Montana exception inapplicable. (81)

Finally, the Court considered the Longs' argument that Plains Commerce Bank "consented to tribal court jurisdiction over the discrimination claim by seeking the assistance of tribal courts in serving a notice to quit." (82) In addressing this issue, the Court emphasized that when the Longs filed their complaint against the Bank in tribal court, the Bank responded promptly with the assertion that the tribal court lacked jurisdiction. (83) The Court found that "[s]eeking the [t]ribal [c]ourt's aid in serving process on tribal members for a pending state-court action does not ... constitute consent to future litigation in the [t]ribal [c]ourt." (84)

C. THE U.S. SUPREME COURT'S DISSENTING OPINION

Justice Ginsburg, joined by Justice Stevens, Justice Souter, and Justice Breyer, concurred with the judgment in part and dissented in part. (85) Justice Ginsburg agreed with the majority that the Bank had standing to contest the jurisdiction and concurred with the Court's judgment "as it relates to the [t]ribal [c]ourt's supplemental judgment" that ordered the Bank to give the Longs an option to repurchase some of the land in question. (86) However, Justice Ginsburg parted from the majority by asserting that the lower courts correctly applied Montana's "consensual relations" exception as the premise for tribal court jurisdiction over the Bank. (87) In reaching this conclusion, Justice Ginsburg emphasized that the Bank was not forced to litigate "under unfamiliar rules and procedures in tribal court" because the Bank frequently filed suit in that forum. (88)

Justice Ginsburg also disagreed with the Court's separation of land sales from other "activities of nonmembers who enter consensual relationships with the tribe or its members" because, in her view, "[s]ales of land-and related conduct-are surely 'activities' within the ordinary sense of the word." (89) Further, Justice Ginsburg noted that the Court in Montana did not express an intention to entirely remove tribal governance of land sales resulting from loan transactions. (90) The Court cited lease agreements as an example of a consensual relationship that tribes might have authority to regulate. (91) For purposes of Montana's exceptions, Justice Ginsburg saw no reason to differentiate a nonmember's lease of fee land to a member from a nonmember's sale of the same land. (92)