Strate v. A-1 Contractors – Oral Argument – January 07, 1997

Media for Strate v. A-1 Contractors

Audio Transcription for Opinion Announcement – April 28, 1997 in Strate v. A-1 Contractors

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William H. Rehnquist:

We’ll hear argument next in Number 95-1872, William Strate v. A-1 Contractors and Lyle Stockert.

Spectators are admonished, do not talk until you get outside the courtroom.

The Court remains in session.

Ms. McCoy.

Melody L. McCoy:

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

This case is about whether an Indian tribe has jurisdiction over a tort action between two non-Indians.

A-1 Contractors was working on the Fort Berthold Indian Reservation for the tribe’s company.

Sandra Day O’Connor:

Where is the reservation, Ms. McCoy?

Melody L. McCoy:

The reservation is within the State of North Dakota.

Sandra Day O’Connor:

And the accident occurred on a State highway on the reservation?

Melody L. McCoy:

That’s correct.

Sandra Day O’Connor:

And what entity sets the speed limits and the regulations for driving on that State highway?

Is it the State of North Dakota?

Melody L. McCoy:

Yes, Your Honor, it is the State that sets the speed limit.

Sandra Day O’Connor:

And the other rules applicable to driving on that State highway?

Melody L. McCoy:

Those are set by both the tribe and the State.

Sandra Day O’Connor:

They have different regulations.

The State could say, no left turn without a stop, and the tribe could say something the opposite?

No right turn.

No right turn, or whatever it is.

[Laughter]

Melody L. McCoy:

At this time, Your Honor, there’s never been a case that’s answered any kind of conflict between the regulatory jurisdiction.

Sandra Day O’Connor:

But the State purports to adopt rules and regulations and standards for driving on that State highway.

Melody L. McCoy:

That’s correct, as does the tribe.

Sandra Day O’Connor:

And could a State police officer be there and issue citations for a violation?

Melody L. McCoy:

That’s correct, yes.

Sandra Day O’Connor:

Of the State law?

Melody L. McCoy:

As can the… that’s correct, as can the Federal Bureau of Indian Affairs and the tribal police.

Sandra Day O’Connor:

And in fact, who does police that stretch of road?

Melody L. McCoy:

Primarily the Bureau of Indian Affairs and the tribe.

Melody L. McCoy:

There are also… this particular stretch of road is a very small spur of a State highway.

It’s not a major thoroughfare.

On all of the roads–

Sandra Day O’Connor:

Right.

Well, if a criminal traffic citation were issued by a BIA staff person or a tribal policeman, would the subsequent prosecution be conducted in tribal court?

Melody L. McCoy:

–Not if the person is a non-Indian.

Sandra Day O’Connor:

Right.

That would go to State court.

Melody L. McCoy:

That’s correct.

Sandra Day O’Connor:

Because it’s a criminal procedure.

Melody L. McCoy:

That’s correct.

However, non-Indians do answer to civil traffic offenses to the tribe, even when they’re cited by non-tribal or non-Federal law enforcement–

Sandra Day O’Connor:

What’s a civil traffic offense?

Melody L. McCoy:

–Speeding, open container–

Sandra Day O’Connor:

Those aren’t punishable by fine or imprisonment?

Melody L. McCoy:

–Those are punishable by fine.

They are civil offenses, civil traffic offenses, that’s correct.

That’s correct, and I think that… the accident in this case occurred on the State highway, but the State highway is a very recent easement, a 1970 easement by the Federal Government.

Anthony M. Kennedy:

One other preliminary question.

Is the highway marked so that it says you are now entering or now leaving the reservation?

Melody L. McCoy:

Yes, it is, Your Honor.

There are… there’s a sign at the very entry to the reservation.

It only runs into the reservation for about 7 miles, but there’s a sign, both the State speed limit sign and the sign that you are entering the Fort Berthold Indian Reservation.

Sandra Day O’Connor:

But the suit filed here is not a traffic enforcement suit of any kind.

It’s a suit between two nontribal members.

Melody L. McCoy:

That’s correct.

Sandra Day O’Connor:

And could the suit have been brought in State court, do you suppose?

Melody L. McCoy:

There’s not a definitive answer from this Court as to that question, but we would concede that yes–

Sandra Day O’Connor:

You would concede that it could have been.

Melody L. McCoy:

–That’s correct, concurrent.

Melody L. McCoy:

What we’re asking is the Court also recognize–

Sandra Day O’Connor:

Has this Court ever recognized concurrent jurisdiction in a civil context over a suit that occurs on a State highway?

Have we ever dealt with that, do you think?

Melody L. McCoy:

–No, the Court has not.

Sandra Day O’Connor:

Have we ever dealt with concurrent jurisdiction with tribal courts at all?

Melody L. McCoy:

Yes.

Sandra Day O’Connor:

In the State tribal context?

Melody L. McCoy:

Yes, Your Honor.

That’s the Three Affiliated Tribes v. Wold decision of 1986, where the civil cause of action arose on the reservation, this very reservation, in fact, and this Court held that the tribe could bring the claim against, in that case, a non-Indian in the State courts on the theory of concurrent jurisdiction.

Sandra Day O’Connor:

But the plaintiff there was the tribe itself?

Melody L. McCoy:

That’s correct, and here–

Sandra Day O’Connor:

Not a private nonmember?

Melody L. McCoy:

–That’s correct.

That’s correct.

Here… here the plaintiff in tribal court is an elderly woman who was married to a tribal member, and she was going towards the home on the trust allotment there that this highway runs over.

Sandra Day O’Connor:

How could that make a difference?

She either is a tribal member or she’s not, and she’s not.

You concede that.

Melody L. McCoy:

That’s correct.

I think, though, there’s two answers to your question.

It doesn’t make a difference under our primary theory, which is that Indian tribes have jurisdiction over the conduct of non-Indians, including Mrs. Fredericks and A-1 Contractors, when the case arises on Indian land, and on our alternative theory it’s not relevant either, because our alternative theory is that–

Sandra Day O’Connor:

Is the State highway easement considered Indian land?

The underlying fee surely is trust land probably held for the Indian tribe.

Melody L. McCoy:

–That’s correct.

It is our position that this highway constitutes Indian land sufficient–

Sandra Day O’Connor:

But, indeed, the easement itself is held by the State and could be considered, I guess, State land for that purpose… the easement, State property?

Melody L. McCoy:

–It’s a State easement, a much lesser interest than a fee simple.

William H. Rehnquist:

It’s division of a bundle of rights, basically, the easement giving the right to use and the underlying fee being the rest, I suppose.

Melody L. McCoy:

That’s correct, and it’s clear that this highway crosses exclusively Indian trust land for all of 6-1/2 miles on the reservation.

William H. Rehnquist:

Well, did… where does the highway end up?

Melody L. McCoy:

At the lake.

There’s a lake, Sakakawea.

William H. Rehnquist:

Is it a… because… is the lake a resort?

I mean, why does the highway go to the lake, or don’t you know?

Melody L. McCoy:

Yes, I do, Your Honor.

On the Fort Berthold Indian Reservation, this road was originally… this is not in the record, but it was originally a Bureau of Indian Affairs gravel service road that ran to the original capital, or headquarters of this tribe’s reservation.

That road has been there since at least, according to Corps of Engineer maps, since the 1940’s.

Below the boundaries of the reservation it was… it has been a State highway.

In the 1940’s, when the Garrison Dam was built and the lake was flooded onto the reservation, the tribe’s capital was flooded, and that was subsequently moved.

But as to this road, it remained a gravel BIA service road, only it stopped at the lake because the lake came to meet the road.

In 1970, the tribe wanted this road paved to serve the tribal community of Twin Buttes on the reservation, because the lake had so isolated Twin Buttes.

The only things in Twin Buttes, population 300, are a K through 8 tribal school, a satellite clinic for the Indian Health Service, the tribal community center that A-1 Contractors helped to build, and a now-shut-down-due-to-downsizing Bureau of Indian Affairs substation.

This is not a major marina for this lake.

Those are on other parts of the reservation.

William H. Rehnquist:

Is there a marina of some sorts at Twin Buttes, or–

Melody L. McCoy:

It’s my understanding there are two dock sites, one at Red Buttes and one at… they’re… Twin Buttes itself is about 3 miles below the lake on the highway, and the two docks, they’re not really full-blown marinas, are to the left and right of that… you know, the east and west of that on the lake.

William H. Rehnquist:

–But… and one gets access to those docks, as you refer to them, by the highway?

Melody L. McCoy:

That’s correct, but the highway is also used, you know… that’s seasonal use.

The tribe in fact regulates seasonal vehicle use on that stretch of the highway, but there are many other roads on the Fort Berthold Reservation that provide the major access for recreation and use of this lake.

Anthony M. Kennedy:

Why was it important for the plaintiff to go to the tribal court?

Melody L. McCoy:

That was her choice of forum that she exercised.

Anthony M. Kennedy:

Why is it important for her?

Melody L. McCoy:

It’s important for her because she’s very much a member of this reservation community.

She lives on the reservation.

Her children are enrolled there.

She lived on her deceased tribal member’s husband allotment.

That’s the stretch of the highway that crossed where the accident occurred in this case.

She’s lived on this reservation since… for most of her adult life, and that is where her choice of forum was.

Plus, she put this Court’s cases together… Williams v. Lee, 1959 case, that says if you are a non-Indian suing an Indian you have to go to tribal court, and this Court’s case in 1987, 10 years ago, Iowa Mutual, that says if you’re an Indian you can sue a non-Indian in tribal court.

She put those two together because she’s a non-Indian suing a non-Indian.

Ruth Bader Ginsburg:

Isn’t there, Ms. McCoy, some dispute about the second case that you mention, whether it meant anything more than you have to exhaust the tribal court process?

It didn’t make an ultimate determination that there was tribal court jurisdiction.

Isn’t that so?

Melody L. McCoy:

No, I don’t think there’s any dispute.

Ruth Bader Ginsburg:

Is it not so that subsequent cases of this Court have said that about Iowa Mutual?

Melody L. McCoy:

I believe that the reference there was in the plurality opinion in the Brendale case, a 1989 case.

But that arose dealing with the issue in Brendale of the tribe’s authority to regulate the private property of non-Indians.

That’s not this case.

Ruth Bader Ginsburg:

But whatever Brendale involved, it did distinguish Iowa Mutual on the basis that it was merely an exhaustion, that there was no determination that the tribe as opposed to the State had jurisdiction.

Melody L. McCoy:

And that, to the extent… I understand, Your Honor.

To the extent the plurality in Brendale did hold that, that was not necessary to the Brendale ruling and I think also the proper way to read Iowa Mutual is that… I realize it set the exhaustion rule.

It also set the rule by which exhaustion would be conducted, or else exhaustion itself would be a meaningless exercise, because as this Court said in National Farmers Union, where it expressly rejected the argument that respondents make here now for a rule of general and implicit divestiture of tribal court jurisdiction over reservation-based civil actions, that was unanimously rejected in National Farmers Union.

And 2 years later in Iowa Mutual, when it again dealt with the issue of how to exhaust, Iowa Mutual set a clear rule that tribal courts presumptively have jurisdiction over reservation-based civil actions against non-Indians, and the lower courts have relied on that–

William H. Rehnquist:

That was dicta, though, was it not?

You didn’t have to say that in order to decide the question that the Court took the case to decide.

Melody L. McCoy:

–I think that I… with all due respect, Your Honor, I… Mr. Chief Justice, I think that it was the rule of that case by which exhaustion was to be conducted, because it gives guidance to the tribal courts and the Federal courts on that very issue, and we don’t have Congress divesting this tribe’s jurisdiction.

Stephen G. Breyer:

There’s a civil tort suit on fee lands.

I mean, you know, a tribe has some lands, it sells some lands to people who are not Indian member, tribe members, and there’s a slip-and-fall accident.

Does that mean those court cases have to go to the tribal court?

I mean, the State court couldn’t handle an ordinary slip-and-fall accident on a fee land?

Melody L. McCoy:

Well, I think, Your Honor, we should distinguish between the existence of the tribe’s jurisdiction, which is the issue here, and the scope of the–

Stephen G. Breyer:

Well, that’s what I wondered.

I mean, I understand much better since your explanation why the tribe really thinks of this, the highway, as really its highway, and I can understand why they think that, but I guess we have to decide this as if it were Interstate 93, or… isn’t that right +/?

and the two people involved had nothing to do with the tribe whatsoever, going down the biggest State 10-lane highway in imagination, which had… just happened to cross the… an Indian tribe’s land, and under an easement… I mean, we’d have to decide it on that basis, wouldn’t we?

Melody L. McCoy:

–Not necessarily.

We’ve offered the Court three alternative theories for dealing with this.

The first one is, if you find the site of this accident is Indian land, then this case is very easy to decide because the tribes can regulate non-Indians, a fortiori, tort cases, no problem in the courts.

The second theory, though, I think addresses more of what you are saying, and that’s if you don’t want to get into the status of the land issue, fee land here, quasi fee land, trust land, then we offer the Court the opportunity to apply the rule for Indian tribes that governments can adjudicate tort cases arising within their territory, because it is undisputed in this case that this case arose within the reservation boundaries.

There’s no issue of off-reservation contacts.

If the status of the land is not necessary to a determination of the–

Stephen G. Breyer:

That’s why my question–

Melody L. McCoy:

–adjudicatory jurisdiction–

Stephen G. Breyer:

–Is that clear, in an ordinary slip-and-fall tort accident in the middle of a reservation, but on fee land involving non-Indians, that those cases go as a matter of course to tribal courts?

Melody L. McCoy:

–It’s not.

No case of this Court has reached the issue of tribal adjudicatory jurisdiction on fee lands.

However, Iowa Mutual and National Farmers Union both arose either on non-Indian-owned fee land or on a Federal highway crossing Indian reservations, and the Court did not rule against tribal jurisdiction.

Antonin Scalia:

Now, is your assertion that the tribe… you keep referring to adjudicatory jurisdiction.

As I recall, you say it is possible for the tribal court to adjudicate the case but not to apply tribal law.

Melody L. McCoy:

That’s correct, Your Honor.

Antonin Scalia:

And you don’t ask us to decide right here whether they should apply tribal law or not, or do you think they shouldn’t?

Melody L. McCoy:

That’s two questions.

I think that the Court need not reach that issue in this case if it chooses not to, because we’re not at that point yet.

We’re at the threshold point.

However, we would also argue that if the Court wants to set the rule that it could be on a case-by-case… it should be on a case-by-case basis because it might involve fee land, it might involve quasi fee land, it might involve trust–

Ruth Bader Ginsburg:

I don’t understand your answer to that question, because it seems to me the two are tied together.

If you’re basing the jurisdiction on, it happened on our land, whether the underlying… it happened on our land, then the most basic choice of law rule is the place of injury.

The law comes from the place of injury, and when you have a coincidence between the forum and the place of injury, what other law would apply?

Melody L. McCoy:

–It’s quite common, Your Honor, that in cases, nonresident tort, motor vehicle tort cases that the test is higher.

It’s significant context, and often they apply the forum… not the forum jurisdiction law, but the law of the other… the residents.

Ruth Bader Ginsburg:

The whole idea of the nonresident motor vehicle statute is that the… committing the act in the territory, having the accident there, there’s no counting of other contexts.

It’s, the accident happened there.

That’s a basis for both jurisdiction and well-accepted that you apply the local law.

Melody L. McCoy:

I think that’s been the traditional rule, but more and more the State courts are moving towards a more… a significant–

Ruth Bader Ginsburg:

Do you have any case where an accident happened inside a forum and the forum didn’t… applied some other law to the… to determine the regulating rules for that, for the conduct of the driver?

Melody L. McCoy:

–The closest cases that we cite in our briefs are the Allstate v. Shutts and The Hague for… they’re not particularly analogous, because they were not motor vehicle tort cases.

They were other kinds of civil tort–

John Paul Stevens:

May I ask… I have two questions I want to get in before you lose your time.

Is there a body of Indian law on issues such as contributory negligence and comparative negligence, and what is… you know, all the… is there a common law that’s been developed in the tribe?

Melody L. McCoy:

–In this tribe?

John Paul Stevens:

Yes.

Melody L. McCoy:

They follow State law.

John Paul Stevens:

They follow State law.

Melody L. McCoy:

That’s correct.

They do not have a–

John Paul Stevens:

And my second question is, how does the… how would the plaintiff get the judgment enforced if the plaintiff got a judgment?

Melody L. McCoy:

–In this case North Dakota has both a supreme court case and a supreme court rule of the State court that deal with enforcement of tribal court judgments when it needs to be enforced by a court.

John Paul Stevens:

The plaintiff would have to bring an independent proceeding in State court to get it enforced?

Melody L. McCoy:

I believe that’s correct, yes.

John Paul Stevens:

I see.

Melody L. McCoy:

That’s correct.

David H. Souter:

If the action were brought in State court in the first place, is there any question in your mind that the State would apply State law as opposed to tribal law?

Melody L. McCoy:

As a theoretical matter I think there’s again the argument that it’s the sovereign forum’s choice whether to apply its own law.

I don’t know the answer, but I know the test.

David H. Souter:

As a practical matter, though, we do know the answer.

They’d apply State law, wouldn’t they?

Melody L. McCoy:

This tribe has no substantive body of law, that’s–

David H. Souter:

And yet if the tribal court has jurisdiction, that is a real question, isn’t it, as to which body of law would be applied, for the very reason that Justice Ginsburg raised.

They might say, well, we’re going to apply tribal law.

At the present time, tribal law follows State law, but we could develop tribal law, and our general rule will be that we’re going to apply tribal law.

That would be possible, wouldn’t it?

Melody L. McCoy:

–That’s correct, yes.

David H. Souter:

All right.

Isn’t it a consideration that we ought to bear in mind in deciding this case that people who drive on a State highway within State territorial jurisdiction ought to have a uniform body of law that they can depend upon having administered if there is a tort so that at least within a given State they don’t have to worry about suddenly being subjected to a new legal regime if they happen to cross the border into reservation territory?

Wouldn’t that be a good consideration for us to bear in mind in deciding this case?

Melody L. McCoy:

I think that’s right, and it’s also buttressed by the fact that in this case both of the parties happen to be citizens of North Dakota.

Thank you.

William H. Rehnquist:

Thank you, Ms. McCoy.

Mr. Nuechterlein.

Mr. Nuechterlein, let me ask you a question that relates to the discussion we were just having.

Is there… if tribal court jurisdiction is proper here between the two non-Indians, and if the tribal court were in the subsequent trial to apply some tribal law and make a choice of law that it was going to look to tribal law, assuming it had one, is there any way later that that could be challenged by the losing party in any Federal court?

Jonathan E. Nuechterlein:

It is true, Justice O’Connor, that in Iowa Mutual–

Sandra Day O’Connor:

Yes or no?

Jonathan E. Nuechterlein:

–I believe the answer is probably yes, although this Court has not specifically addressed that issue.

Sandra Day O’Connor:

I thought it was quite unclear whether any subsequent challenge could be made.

Jonathan E. Nuechterlein:

I think if a challenge goes directly to the scope of the tribe’s jurisdiction–

Sandra Day O’Connor:

No.

The challenge goes to the choice of law rule.

Jonathan E. Nuechterlein:

–Well, choosing its own law in the course of adjudication is a form of exercising jurisdiction.

Sandra Day O’Connor:

Well, suppose the jurisdiction question were decided in favor of the petitioner.

The tribal court has jurisdiction.

Then suppose the tribal court tries the case and were to choose to apply tribal law.

That’s not this case because the petitioner’s counsel says we don’t have tribal law, so we wouldn’t do that.

But let’s suppose it’s a tribe that does.

They choose tribal law.

Can that ever be tested in any subsequent proceeding in a Federal or State court?

Jonathan E. Nuechterlein:

I think the answer to that question is yes, and the reason the answer to that question is yes is because as a matter of comity among sovereigns it is important for there to be a Federal review of a tribal exercise of–

Sandra Day O’Connor:

Well, but there’s no case, is there, holding that yes, sure, you can have subsequent review in another jurisdiction?

Jonathan E. Nuechterlein:

–That’s correct, Justice O’Connor, but that case has not yet arisen before this Court.

Ruth Bader Ginsburg:

But it certainly could… would be unthinkable in a sister State context, that a second State could second-guess the first State’s choice of law in a collateral attack.

Isn’t that… isn’t there a definite no, a sister State can’t do that to each other?

Jonathan E. Nuechterlein:

That is true.

I think the difference between the two cases is that Congress has specifically given the losing party in the State court system a right to appeal to this Court to allege under the Due Process and Full Faith and Credit Clauses–

Sandra Day O’Connor:

But Congress hasn’t done that for tribal court judgments.

Jonathan E. Nuechterlein:

–That is correct, Justice O’Connor, Congress has not passed a statute giving this Court appellate jurisdiction.

Anthony M. Kennedy:

And a choice of law question isn’t necessarily due process.

It can be in extreme cases, but if there’s a valid basis or an arguable base for choosing either law you can’t get into Federal court under a due process–

Jonathan E. Nuechterlein:

That is correct, Justice Kennedy, but there are in fact important Federal constraints on a forum’s choice of its own law.

As this Court held in cases like Shutts and Allstate the scope of a forum jurisdiction’s ability to choose its own law as the rule of conduct is narrow–

Ruth Bader Ginsburg:

–As you said it held in Allstate, but Allstate, some might have regarded the homing instinct of that State court as exorbitant, and yet this Court held that it didn’t violate due process for the State to prefer itself, so it seems to me that Allstate proves that at the very least this Court has been extraordinarily indulgent to choice of law decisions made by a forum.

Isn’t that what one would take away from Allstate?

Jonathan E. Nuechterlein:

–Well, in the subsequent case, Justice Ginsburg, of Phillips Petroleum v. Shutts this Court did in fact invalidate the choice of Kansas law as the rule of decision–

Ruth Bader Ginsburg:

Certainly not as to an accident that happened within a reservation.

I mean, wasn’t the Shutts concern people who were outside Kansas whose entire connection to this venture was outside Kansas?

Jonathan E. Nuechterlein:

–I think that’s correct, Justice Ginsburg.

However, I think there’s an important difference.

This Court in cases like Montana, Brendale and Bourland has pointed out that the scope of a tribe’s ability to regulate non-Indians, at least on certain kinds of lands within a reservation, is subject to stricter limitations than a State’s ability to regulate outsiders.

Antonin Scalia:

Mr. Nuechterlein, if this is a problem, I suppose it’s a problem that only takes a Federal statute to solve, right?

Jonathan E. Nuechterlein:

That is correct, and I–

Antonin Scalia:

I mean, if the question is, has… do the current Federal statutes leave it to the tribal court to decide the case, and perhaps leave it to the tribal court without any review in Federal courts to decide what substantive law to apply–

Jonathan E. Nuechterlein:

–I think Congress has spoken to that consideration.

Antonin Scalia:

–That’s their issue, and if you’re wrong about getting out of tribal court, Congress can solve that problem by passing a statute.

Jonathan E. Nuechterlein:

That’s correct, and I think it’s also significant in that regard that in 1993 Congress based the Indian Tribal Justice Act, which commits essential Federal resources to the development of tribal courts on the premise embraced by this Court in Iowa Mutual that tribal jurisdiction over events arising on a reservation presumptively does lie in tribal court.

Stephen G. Breyer:

Yes, but what sense does it… I mean, suppose there is room in the cases to go either way.

I could understand a rule that says, people who build houses in fee… you know, I’m thinking that this highway is a like a fee land.

I realize that’s a big issue in dispute, but assume it is for the sake of argument.

Two people who are not Indians living on the land in fee, they have a house like… you know, they have no… I can understand a rule that say, they have to go to the tribal court, and tribal law applies.

That would be one rule.

That’s a possible rule.

That’s how you treat California, probably.

Or I could understand a rule which said, well, it’s not like California.

It’s a rule that South Dakota law applies.

Then have them go to South Dakota court.

I mean, what good does this mixing up of everything do except to leave… the lawyers will get very mixed up and the judge will get mixed up, and it will mean a lot of extra cost and very hard to sort out who goes where.

I mean, what’s to be said against simplifying this?

If it’s South Dakota law on the fee thing, go to the South Dakota court.

If it’s the tribal law, go to the tribal court, if there’s room to do it.

Jonathan E. Nuechterlein:

As an initial matter, Justice Breyer, we believe that both the State and the tribe have concurrent jurisdiction over this sort of suit in the same way that adjoining States often have jurisdiction over accidents–

Stephen G. Breyer:

I’m not talking about jurisdiction.

I’m saying if we had room to do it, why wouldn’t the sensible thing be to simplify?

If it’s the State law that governs it, have them go to a State court.

Stephen G. Breyer:

If it’s the tribal law that governs it, have them go to a tribal court.

That way we’d save legal fees, time, and effort.

Jonathan E. Nuechterlein:

–I think actually the approach that best saves resources is the one adopted by this Court in Iowa Mutual for the following reason.

It is undisputed that a tribe has adjudicatory jurisdiction even over nonconsenting non-Indians in cases where the tribe can point to a particularized interest in the outcome of the dispute sufficient to justify the application of tribal regulatory authority under the Montana tribal interest test.

That test looks to see whether or not the activities of non-Indians have a direct effect on tribal welfare or whether or not they’ve entered into–

Sandra Day O’Connor:

How is that present here?

Jonathan E. Nuechterlein:

–The… no one… no court has yet addressed whether that’s present here, and it’s my point that it should be the tribal court in the first instance that determines whether or not that fact-specific inquiry is, indeed, satisfied.

Sandra Day O’Connor:

Well, how about if it goes to trial in the tribal court and the tribe chooses to use as the jury all the friends and relatives of the victim, and they say, yeah, she’s really been injured, and we’re going to give a heck of a verdict here, and they do, and suppose other errors that might amount to a due process violation in a Federal or State court obtain.

There is no way to challenge that as a due process violation later in any State or Federal court, I assume.

Jonathan E. Nuechterlein:

I think that’s not quite accurate, Justice O’Connor.

In this case–

Sandra Day O’Connor:

What would be the mechanism–

Jonathan E. Nuechterlein:

–Well, in this case, for example–

Sandra Day O’Connor:

–for a subsequent challenge?

Jonathan E. Nuechterlein:

–In this case, it’s my understanding that A-1 has no assets on the reservation, so to enforce the tribal judgment the prevailing litigant would have to go to State court and persuade that court that the underlying tribal proceedings comported with the rules of comity that are applicable to the enforcement of the foreign judgment.

Sandra Day O’Connor:

And would those questions be open–

Jonathan E. Nuechterlein:

Yes, they would, Justice–

Sandra Day O’Connor:

–on enforcement–

Jonathan E. Nuechterlein:

–Yes, they would.

Sandra Day O’Connor:

–in North Dakota?

Jonathan E. Nuechterlein:

Yes, they would.

David H. Souter:

Why is it leaving open the possibility of such a difficult and elaborate proceeding?

We know perfectly well that if the jurisdiction is exclusively in the State courts, in practical terms State law will be applied.

There won’t be the potentiality for these due process issues.

Why not have a simple highway rule?

What’s wrong with that?

Jonathan E. Nuechterlein:

I think this Court’s… Justice Souter, I think this Court’s precedents recognize that the tribe would always have jurisdiction not just to regulate conduct but also to adjudicate disputes in cases where the tribe has a particularized interest.

That aspect of the tribe’s sovereignty has remained intact.

It’s the–

William H. Rehnquist:

Do we really want to slice the onion this many ways so far as practical effects are concerned?

Jonathan E. Nuechterlein:

–I think that whenever we recognize that there are a variety of sovereigns within our Nation, whether they’re States or Indian tribes, jurisdictional issues will arise.

I think the best rule to apply here–

William H. Rehnquist:

It seems to me the least desirable, is what you propose.

The Indian tribal court should first decide whether there’s an Indian interest and then presumably 4 or 5 years later that might be reviewed here.

Jonathan E. Nuechterlein:

–I think that the best rule is, in fact, that one, and this is the reason why.

This Court has constantly recognized that Indian tribes retain the core sovereign authority to regulate conduct that poses a threat… may I finish my sentence?

William H. Rehnquist:

Yes.

Jonathan E. Nuechterlein:

That poses a threat to the integrity of the tribe.

It should be the tribal court in the first instance that makes that determination.

That’s the implicit premise of National Farmers Union.

It would be inefficient not to let the tribe complete the adjudication.

William H. Rehnquist:

Thank you, Mr. Nuechterlein.

Mr. Ward, we’ll hear from you.

Patrick J. Ward:

Mr. Chief Justice and may it please the Court:

This Court has, on several occasions, indicated reasons why the tribal court lacked jurisdiction over Mr. Stockert and A-1 in this case.

Tribal courts exist primarily to apply tribal customs between tribal members.

In this instance, the tribe has given up its power to exclude nonmembers from the State highway.

In using the State highway on this occasion, Mr. Stockert did not give up his rights to due process, equal protection or trial by a jury of his peers.

Ruth Bader Ginsburg:

So the result would be different if the accident had occurred inside the reservation, on a reservation road, not a road on which the State had a perpetual easement?

Patrick J. Ward:

Not necessarily, Your Honor, not in an incidence involving two nonmembers of the tribe.

Ruth Bader Ginsburg:

So then you’re not relying on, as Justice Souter spoke, this case could be… could be described as a State highway case, and that would be the end of it, but I think you’re telling us now that… that even if it occurred on a reservation road, there would not be tribal jurisdiction.

Is that what you’re saying?

Patrick J. Ward:

Your Honor, yes.

In this… the precedents of this Court’s would indicate that the State’s authority over nonmembers of the tribe, over its citizens, reaches into the reservation.

And so it doesn’t necessarily require that the road has been alienated by the tribe.

But in this case, that gives the Respondents an even stronger position, because this is a State highway and it is regulated by the State and it is controlled by the State.

And as Justice Breyer indicated, there are interstate highways that run through reservations as well.

And citizens of this country have no idea when they enter an interstate highway to travel to Yellowstone Park or something out in the West that they’re subjecting themselves to the tort jurisdiction of a tribal court that could deprive them of their property.

William H. Rehnquist:

But they’re… they’re… when they cross the line from, say, North Dakota into Montana, they’re going from one jurisdiction into another.

How much of an impression do you think that makes on them?

Patrick J. Ward:

Your Honor, I think it makes a great impression.

I think that citizens of the United States recognize the sovereignty of different States and are comfortable with that.

But when they–

Sandra Day O’Connor:

Maybe they should recognize tribal sovereignty as well.

I mean, you’re just defending the ignorant, it seems to me.

Patrick J. Ward:

–Well, no, Your Honor; I believe that there are limits on tribal sovereignty.

And this Court has indicated that in the past.

William H. Rehnquist:

Why is it–

–But they shouldn’t be based on whether the typical motorist has respect for a tribal court or not, I don’t think.

Patrick J. Ward:

No, Your Honor.

They should be based on the historical record.

They should be based on the decisions of this Court and on the constitutional–

Stephen G. Breyer:

Well, how is it different, when you go to Maine from Massachusetts, you know, very few people know, but you have to go through New Hampshire?

And you could be subject to the courts–

–I know someone who knows that.

I know someone who knows that.

[Laughter]

Isn’t… isn’t there kind of a dual concern implicit in what you’re saying here?

It’s perfectly true that when you go from North Dakota to South Dakota you realize you’re going into a different jurisdiction.

But the general assumption that’s made is highway laws, liability rules and so on are generally, more or less, the same.

So that the substantive legal regime probably is not changing very much.

Patrick J. Ward:

–That’s correct.

Stephen G. Breyer:

Here, however, I think, underlying some of your argument are two suggestions.

One is we really don’t have a sense of what the legal regime is going to be if we are subject to tribal jurisdiction with the probability of tribal substantive law.

And, number two… and one of the amicus briefs was pretty explicit about this… there is a real concern about fairness of treatment in the tribal courts by virtue of the fact that the tribal judges can be removed by the tribal political authorities, in effect, if they don’t like the results.

Are those two reasons… the fact that we have real question about what the substantive legal regime will be in a tribal court and, number two, we have a real question about due process because of the appointment scheme… are those two reasons, reasons that you rely significantly on and feel that we should rely significantly on in deciding this case?

Patrick J. Ward:

Justice Souter, those are two significant reasons, I agree with that.

We rely on those reasons and, in addition, we rely on all of the other reasons we have stated.

Antonin Scalia:

Well, all those reasons are very interesting, as are our prior cases.

Is there any text that we can look to for the answer to this question that… anybody talk about any statutory provision, treaty provision… what… what–

Patrick J. Ward:

There are treaties–

Antonin Scalia:

–What is the text that we’re talking about–

Patrick J. Ward:

–Your Honor, there… there is–

Antonin Scalia:

–to decide this question?

Patrick J. Ward:

–There is no specific text, in the sense of a statute, that addresses this question.

There are treaties with the tribe.

And in those treaties, the tribe has historically recognized the right of safe passage for people passing through the reservation.

If… if one looks at those treaties, those treaties… never… if you look at the common notions of the day at the time that those treaties were entered into, these tribes, from the time almost 20 years after Lewis and Clark to this day, realized that there would be rights of way, there would be people passing through, and they would not interfere with the rights of those people passing through.

And if–

Anthony M. Kennedy:

–some of the same questions that Justice Scalia is raising.

Could Congress authorize this jurisdiction?

Is that question before us?

Or are we… or are we asking whether or not this is inherent in tribal sovereignty absent some extra directive from the Congress?

What is the source of the law that controls this case?

Patrick J. Ward:

–The… the… in answer to your first question, yes, Justice Kennedy, the Congress could create this jurisdiction if it chose to do so.

But it hasn’t.

With respect to the second part of your question, this… this case below has been decided on the issue of the inherent sovereignty.

And that question is addressed by the decisions of this Court.

Anthony M. Kennedy:

Well, with reference… the answer to your first question… then there would be no constitutional impediment to the exercise of tribal jurisdiction?

Patrick J. Ward:

The constitutional impediment would be that this… the Constitution recognizes two sovereigns, the United States and the States.

And unless that sovereign… the United States gives this authority… somehow delegates this authority to the tribes, the tribes do not have it.

Anthony M. Kennedy:

Well, let’s put it this way, there would be no due process violation in subjecting the… your client to the jurisdiction of the tribal court?

Patrick J. Ward:

Yes, Your Honor, there would be.

Anthony M. Kennedy:

Well, then, why did you say that Congress could authorize it?

Patrick J. Ward:

Well, Your Honor, I… I think that Congress certainly he is… my client is a citizen of the United States.

And Congress can certainly create a court that he would have to respond to, unless that action itself was unconstitutional.

And we have not addressed that question here.

Sandra Day O’Connor:

Well, you’re not challenging the concept of Indian tribal sovereignty, surely?

Patrick J. Ward:

No, I’m not, Your Honor.

Sandra Day O’Connor:

I mean, this Court, in many decisions, has recognized that.

Sandra Day O’Connor:

The Federal Government has recognized it.

It’s a fact of… of existence.

Patrick J. Ward:

No, we are not questioning the concept of tribal sovereignty–

Anthony M. Kennedy:

Well, then, are you asking us just to make a general choice of law rule as to what’s wise?

I mean, what is… what’s the controlling doctrine that… that guides this case?

Patrick J. Ward:

–The controlling doctrine is the Montana case that was decided by this case, which provides the limitations, or at least addresses the limitations, on tribal sovereignty and the exceptions to those limitations where nonmembers are involved.

David H. Souter:

But that was regulatory sovereignty and then that was legislative sovereignty.

Patrick J. Ward:

It was… it was legislative, but the sovereignty of a tribe, whether it’s legislative or adjudicative, comes from the same place.

It comes from whatever retained inherent sovereignty remained after the tribes were incorporated into the United States.

And as this Court has recognized in Oliphant and Wheeler, for purposes of criminal jurisdiction, there is no tribal sovereignty, and the tribe could not, as in some of the earlier examples, exercise any criminal jurisdiction over either of the parties here because they were both nonmembers of the tribe.

David H. Souter:

But may I go back to a… to an answer… to a question from Justice Kennedy?

You said, well, even if Congress provided by statute that there would be jurisdiction in the tribal court in… in this case, that there would… there would or could… I’m not sure which you said… still be a due process problem.

Did you mean by that simply that you might still raise a due process challenge to the particular manner in which the… the court offices were appointed or the jurors selected or whatnot?

Patrick J. Ward:

That’s correct, Your Honor.

David H. Souter:

Okay.

Patrick J. Ward:

And also potentially to the manner in which those courts are–

Sandra Day O’Connor:

How could you raise that?

By… by what mechanism do you think you could get into another court to… to raise some due process challenge to what actually occurred?

Patrick J. Ward:

–Well, Your Honor, that would be a difficult problem, because the Court’s Santa Clara Pueblo decision seemed to indicate that the… the issues of the Indian Civil Rights Act with respect to due process will not be reviewed except in habeas corpus proceedings.

So unless there was some revision of that decision with respect to review for nonmembers, the Santa Clara Pueblo case did involve a member, and she was questioning tribal… the issue of tribal membership rules.

Ruth Bader Ginsburg:

But why wouldn’t it operate… Ms. McCoy, I think, told us that, as a practical matter, to enforce a judgment of this nature rendered by the tribe, you’d have to go into State court, bring a fresh proceeding, to enforce that judgment.

And couldn’t the defendant in that enforcement proceeding say that I recognize Indian tribal sovereignty; it’s like the sovereignty of France or Italy.

When we’re dealing with a sovereign to whom the full faith and credit clause doesn’t apply, then we have certain checks.

And one of them is due process.

So we would look to the particular proceeding and see if essentially fair procedure was accorded in the tribal court.

Patrick J. Ward:

There would be, in this instance, a comity provision, pursuant to the North Dakota rule with respect to enforcement of this tribal judgment.

So there would be some limited review.

But–

Antonin Scalia:

But you say that’s fortuitous, just because there happens to be no property on the reservation that could be seized?

Patrick J. Ward:

–Correct.

Antonin Scalia:

But, you know, the same situation exists if it’s a suit between two Indians or, I assume, a suit between one Indian and a person off the reservation.

Why do we… why is it so terrible that… that two non-Indians can’t get review of a tribal court judgment by a Federal or State court, but not terrible that… that two Indians can’t get a review of a similarly outrageous tribal court?

I mean, do we care more about non-Indians than Indians for some reason?

Patrick J. Ward:

No, I don’t think we do–

Antonin Scalia:

If we’re content with that rule for Indians, why… why can’t we be content with it for non-Indians?

Patrick J. Ward:

–Your Honor, because Indians are members of the tribe.

They choose to be members of the tribe.

They choose to reside on the reservation.

They benefit from that membership.

Antonin Scalia:

And I’m a Virginian, but Virginia can… can deny me due process just as well.

Patrick J. Ward:

I would argue that it can’t, Your Honor.

Antonin Scalia:

I… I just don’t think that’s–

Patrick J. Ward:

I mean, you could challenge it if Virginia did.

You certainly… a non-Indian does not have a right to participate in tribal governance.

He doesn’t have the right to vote.

He doesn’t have the right to be involved in any of the decisionmaking.

Antonin Scalia:

–happy family, and never deprive one another of due process–

Patrick J. Ward:

Your Honor, I would hope that–

Antonin Scalia:

–right, and think it’s some… I don’t know… bucolic, pre-nature regime there?

I don’t think so.

It seems to me that the injustice could exist just as well between… in a suit between two Indians.

And if we’re resigned to not having that reviewed for them, I don’t know why we can’t be resigned to not having that reviewed for a suit between two non-Indians.

Patrick J. Ward:

–Well, Your Honor, that question, I guess, has not been answered by this Court, with respect to non-Indians.

David H. Souter:

Well, let me ask a related question.

Although there’s been a speculation about due process horribles, are there… do you have any documented examples that anything is going wrong in these courts?

Patrick J. Ward:

Absolutely, Your Honor.

I mean, it’s not part of this record, but certainly–

David H. Souter:

Where… where would I… where would I… where could I properly look to find these accounts?

Is the case… a similar case being considered now in the 9th Circuit?

Patrick J. Ward:

–Yes, there is, Your Honor.

Patrick J. Ward:

There’s a case involving the Burlington Northern Railroad, which filed one of the amicus briefs here, in which the tribal jury was composed of relatives and friends of the complainants.

There was a parade of horribles in that case and an extremely unfair verdict.

And that is pending review in the 9th Circuit–

David H. Souter:

Well, that’s… I don’t mean to belittle that case, but that is one case.

Do we–

Patrick J. Ward:

–Yes, there–

David H. Souter:

–Do we have any… any documentation of a generalized problem?

Patrick J. Ward:

–Well, Your Honor, as far as documentation, other than… there are other cases that I’m aware of, where due process violations are occurring in tribal courts with respect to nonmembers–

David H. Souter:

Well, can I… is there a law report or something that I can read to find these examples?

Patrick J. Ward:

–There… there are some law review articles on the subject, Your Honor.

The best, I think, would be the amicus brief of the Burlington Northern Railroad in this case, and the American Automobile Association–

Ruth Bader Ginsburg:

Mr. Ward, do you agree that if we take what Justice Souter suggested might be a rule of the road here… that is, if it’s an interstate highway, it’s a State highway, then the State… this case belongs in State court and State law will apply.

But we don’t get into any of these other questions that might arise if this accident occurred on a road within the reservation?

Patrick J. Ward:

–That’s true.

Antonin Scalia:

Just stay on the good roads; you’ve got nothing to worry about.

Stay on the State highways.

Patrick J. Ward:

That’s… that’s true.

You could do that.

And in this case… and that would be consistent, I think, in this case, with the alienation of the land in the Bourland case, which involved the dam for Lake Oahe, just below the dam for Lake Sakakawea, which is–

Stephen G. Breyer:

How does it normally work with… I mean, this notion of splitting adjudicatory jurisdiction for… from legislative or regulatory jurisdiction is rather interesting.

I just wonder, as a practical matter, in the Dakotas or Montana or places where there are quite a few reservations and alienated quite a lot of land, so that there are many fee… inhabitants who own their land in fee, what’s the expectation now, how does it work when there’s a simple accident, a tort, a slip-and-fall, a contract dispute, not with any of the tribes, but… I mean, do those people now think they’re supposed to go to a tribal court to get their matter adjudicated?

Patrick J. Ward:

–No, Justice Breyer.

Stephen G. Breyer:

They go to the State court?

Patrick J. Ward:

Yes, they do.

Stephen G. Breyer:

And are you aware of any instances in which tribal courts took jurisdiction over these simple slip-and-fall, normal contract disputes on the houses or farms of the people who hold their land in fee?

Patrick J. Ward:

Involving nonmembers?

No, not to my knowledge, Your Honor.

Those people are treated as citizens of the State of North Dakota.

They have access to the courts in the State–

Ruth Bader Ginsburg:

But, Mr. Ward, here’s a question of concurrent jurisdiction.

Ruth Bader Ginsburg:

And isn’t this… this kind of case can only come up if the plaintiff… even if a nonmember would have a real close affiliation with the tribe.

In the cases Justice Breyer was suggesting, it’s the plaintiff’s choice of forum.

Most non-Indians probably wouldn’t go to the tribal court in this kind of accident.

But this non-Indian had a very close relationship with the tribe.

And so that’s why she did.

Patrick J. Ward:

–That’s correct.

Stephen G. Breyer:

Well, why is that?

Why is that?

I don’t… I mean, I don’t–

Patrick J. Ward:

Why did she choose?

Stephen G. Breyer:

–Why, if in fact there is adjudicatory authority in… over, say, this… if this is equivalent to fee and there is adjudicatory authority of the tribal court over people who hold their title in fee, then why couldn’t the tribe, if it wished to, say that you have to go to the tribal court whether you’re related to somebody who’s a member of the tribe, whether you’re not?

Patrick J. Ward:

Your Honor, the tribe could, assuming that the other party was–

Stephen G. Breyer:

So, in fact, then I think the issue in this case… there are two issues.

One is whether they’re going to have adjudicatory jurisdiction over all accidents, contracts on fee land, or the second issue could be this isn’t fee land; this is not fee land.

This is an easement… shouldn’t be treated as fee land.

So I’d appreciate your addressing that second contention briefly.

Patrick J. Ward:

–Well, Your Honor, this is not fee land, because this land was–

Stephen G. Breyer:

If you say “not”, then they win, I think.

I think you’re… you’re talking about fee land in–

Patrick J. Ward:

–I… I’m sorry–

William H. Rehnquist:

–Montana talked about fee land in the sense of other people owning it, not the tribe owning it.

Patrick J. Ward:

–Well, you confused me.

I was confused by the question, Your Honor.

No, it’s my fault.

Patrick J. Ward:

And what… what I mean is this is… this… this easement for this highway is certainly the equivalent of fee land.

It is an alienation of the land by the tribe.

It is a giving up of the power to control.

Sandra Day O’Connor:

Oh, it’s just an easement, like any other highway easement or like any other utility easements.

It is a permission for the State to have a highway there, is it not?

Patrick J. Ward:

It is–

Sandra Day O’Connor:

That’s what we have.

It’s part of the total bundle of property rights.

Patrick J. Ward:

–Well, but it’s… it’s more than that in the sense that it’s giving up the power to exclude.

It’s giving up the power to regulate the highway.

The State regulates the highway.

The State sets the standards.

Sandra Day O’Connor:

Well, now, we heard that the tribe also regulates the rules of the road, so to speak, on this highway; is that the case?

Patrick J. Ward:

The tribe… the tribe–

Sandra Day O’Connor:

Do they have regulations governing the use of this highway?

Patrick J. Ward:

–The tribe regulates its members with respect to the highway, Your Honor.

Sandra Day O’Connor:

Not nonmembers?

Patrick J. Ward:

Not to my knowledge, Your Honor.

Generally speaking–

Sandra Day O’Connor:

We heard to the contrary from the Petitioners’ counselor.

Patrick J. Ward:

–Well, my understanding is that the practical application by the… by the tribe and the highway patrol is that if a non-Indian is involved, the tribe will call in the deputy sheriff from the county or they would call in the highway patrol.

Sandra Day O’Connor:

So your understanding is different from Petitioners’ counsel–

Patrick J. Ward:

That’s correct.

Sandra Day O’Connor:

–in this regard?

Patrick J. Ward:

That’s correct.

Antonin Scalia:

If the tribe had not given up the easement to the State for the highway, could non-tribal members be totally excluded?

I mean, can the tribe just say, you know, we don’t want to give the State any highway land, and since there are no State highways, no outsiders, just tribal members.

Can the tribe do that?

I–

Patrick J. Ward:

The tribe, in this instance, certainly did give up the easement.

Whether the tribe could decide not to, I believe the tribe–

Sandra Day O’Connor:

–Well, sure it could.

Well, haven’t we had cases involving that; that on tribal land, the tribe has the right to exclude others?

We’ve had cases decided on that very basis.

Patrick J. Ward:

–Yes… yes, you have, Your Honor.

And those cases involved reservations, where the tribe retained its power to exclude, as opposed to where it had given that up and agreed to give free passage, and agreed to allow rights-of-way.

Antonin Scalia:

And did it go along with this easement that the tribe promised not to exclude anybody?

Patrick J. Ward:

Yes, Your Honor.

The only rights reserved to the tribe in the easement were the right to create crossings for purposes of approaches to farms and things like that.

Otherwise, the easement gave the State the rights to the surface of the road.

Ruth Bader Ginsburg:

Do you know of any case where a tribe claims exclusive jurisdiction, which I believe is what Justice Breyer was suggesting… claim exclusive jurisdiction as distinguished from concurrent jurisdiction with the State over a tort that happens on a highway or on fee land?

Patrick J. Ward:

I’m not aware of any case from this Court, Your Honor, where the tribe has–

Ruth Bader Ginsburg:

But do you know of any tribe that has asserted exclusive jurisdiction as distinguished from concurrent jurisdiction, where the plaintiff chooses the forum?

Patrick J. Ward:

–I believe that the tribes, maybe.

And I believe that the effect of what happens, pursuant to the Petitioners’ argument in cases… as a result of Iowa Mutual… is that State courts and Federal courts are reluctant to proceed because the action has been started in a tribal court.

And so, from that standpoint, whether the tribe asserts exclusive jurisdiction, in effect, it is by the way that the procedure is followed once that jurisdiction is invoked.

Antonin Scalia:

I must say, I am confused by the easement discussion.

I’m… you know, a sovereign can cede land, even the whole fee much less an easement, without conceding any sovereignty over that land.

If I purchased land from the United States, the United States doesn’t give up jurisdiction over that land.

It’s still subject to United States law.

I don’t know that the fact that the tribe gives an easement to a State necessarily means that the tribe thereby cedes all of its jurisdictional responsibility over the… over the land as to which the easement was given.

Why do you assume that’s the case?

Patrick J. Ward:

Well–

Antonin Scalia:

Is it clear that the tribe could not regulate Indians on that… on that easement, for example?

Patrick J. Ward:

–Well, the… the reason I assume that’s the case is for reasons similar to the Bourland decision of this Court, that, in that case, the tribe gave up the authority over the taken area for the building of the dam and for the recreational enjoyment of hunting and fishing in that area.

And the tribe, similar to this case, asserted that it maintained regulatory control even over non-Indians in that area.

And this Court decided no, it did not; that it did not retain that regulatory control.

And it further decided that that kind of control was not part of the tribe’s inherent sovereignty.

Antonin Scalia:

Only over non-Indians, you would say, though.

So, I mean, your highway principle that Justice Souter was discussing with you would only apply to regulation of non-Indians on the highway?

Patrick J. Ward:

Well, Your Honor, this… this Court has never decided whether an easement or an alienation of land would give up the authority over the tribal members.

I don’t think it goes that far.

I think the tribe… the essence of the tribe’s sovereignty is the tribe’s right to regulate the affairs of its members.

So, in that sense, there may be concurrent jurisdiction of the tribe over its members with respect to the highway.

William H. Rehnquist:

But to members within the boundaries of the reservation?

Patrick J. Ward:

Exactly, yes.

Patrick J. Ward:

Until the… once the State highway goes beyond the borders of the reservation, the tribe loses its authority even over its members.

David H. Souter:

I take it the terms of the easement in this case do not address these questions?

Patrick J. Ward:

Not specifically; no, Your Honor.

What this Court stated in the Montana decision–

John Paul Stevens:

Well, is that really completely true?

Some have argued that one of the sources of tribal jurisdiction over non-Indians is the power to exclude.

Patrick J. Ward:

–That’s correct.

John Paul Stevens:

And the tribe has given up the power to exclude non-Indians from this road.

Patrick J. Ward:

Yes, they have, Your Honor.

John Paul Stevens:

So, arguably, they might have given up jurisdiction to regulate non-Indians on this road?

Patrick J. Ward:

I would submit that that’s true, Your Honor.

And I think that this Court–

Antonin Scalia:

Well, except it’s given up the power not only to exclude them from the road, but the power to exclude them from the reservation.

So, I mean, if you follow that logic, they would not have… they would not have power to regulate their activities on the rest of the reservation either?

Patrick J. Ward:

–That may be true, Your Honor.

Because with respect to–

Antonin Scalia:

Have they given up the power to exclude generally from the reservation?

Patrick J. Ward:

–Well, with respect to these particular tribes, there are no closed areas like there were in the Brendale decision.

This is an open reservation.

There are approximately 40 percent fee land.

Close to 50 percent of the people living on the reservation are nonmembers.

So there’s a significant interaction.

And from an economic standpoint, a decision that would close the reservation or make people fearful of entering the reservation for fear of losing their property as a result of an adverse judgment there would not be good for the tribes and it would not encourage intercourse with the tribes, which is something that Congress has always indicated is part of its essential purpose in dealing with the tribes–

Anthony M. Kennedy:

Could you explain something to help focus on the precise law that we look to, to resolve this case?

If a State court exercises personal jurisdiction over someone erroneously… there’s no personal jurisdiction… that person doesn’t run into Federal court and get an injunction.

What was the theory on which you went into Federal court here originally?

Patrick J. Ward:

–The theory that we originally went into Federal court was that we had exhausted our tribal court remedies with respect to jurisdiction and that the tribe did not have jurisdiction to involuntarily force Mr. Stockert and A-1 Contractors into one of its courts for purposes of a civil case.

Anthony M. Kennedy:

But… but is that… was it a violation of a Federal standard or a Federal law for the tribe to proceed that way?

Patrick J. Ward:

It was a violation of the decisions of this Court in the Montana case and a misapplication of the exceptions of that case in order to–

Anthony M. Kennedy:

It sounds to me like you’re saying that there is no authority to proceed, but I’m not sure why that’s… presents a Federal question, until they… until they try to levy on your assets or something.

Patrick J. Ward:

–Well, Your Honor, I believe the Federal question is presented by the fact that there is a deprivation of Mr. Stockert’s rights.

There is a deprivation of his right to have this case heard in a court to which he is a member, to which he can vote–

Anthony M. Kennedy:

Well, how is that any different from my hypothetical of going into a State court… a State court exercising jurisdiction over me, and I say, well, you have no jurisdiction?

Patrick J. Ward:

–Well–

Anthony M. Kennedy:

I don’t rush into Federal court and get an injunction.

I don’t see that there’s a Federal question here.

Patrick J. Ward:

–Well, it’s different in the sense that there’s different sovereigns involved, Your Honor.

The States… the sovereignty of the States is different from the States and the tribes.

Anthony M. Kennedy:

Well, is there a Federal question of jurisdiction over… any question of Indian law?

Patrick J. Ward:

Yes, there is, Your Honor, because the… because of the plenary power of Congress in dealing with the Indians that’s referenced in the Constitution.

This Court has indicated–

William H. Rehnquist:

Well, certainly… certainly our cases like Iowa Mutual certainly suggest that you can… not only suggest, but I think they hold you can come into Federal court–

Patrick J. Ward:

–Absolutely.

William H. Rehnquist:

–if there has been exhaustion.

Patrick J. Ward:

That’s exactly what the Farmers Union case said, Your Honor.

The Farmers Union case said that Federal courts are the final arbiters of questions of Indian jurisdiction.

So, to the extent that authority is needed for that proposition, it’s in the Farmers Union case.

And it was again in Iowa Mutual.

And basically, what Iowa Mutual was, was an extension of that exhauction requirement.

But, again… and it dealt with Section 1332 jurisdiction for diversity cases.

But it extended that exhaustion requirement that was announced in Farmers Union and recognized that yes, it is a Federal question… the question of Indian jurisdiction is a Federal question, because of the unique nature of Indian tribes in their dealings with the Congress and with the American people.

There has been no congressional delegation of adjudicatory–

John Paul Stevens:

Can I ask one other question?

What if the plaintiff in this case had been a tribal member, would your case be stronger or weaker?

Patrick J. Ward:

–Your Honor, I believe, in this case, under these facts, my case would not be any weaker.

The… the… if the plaintiff were a tribal member, you would still have the same issues of the divestment of the highway.

You would still have the divestment of the power to exclude.

You would still have–

Sandra Day O’Connor:

Aren’t there in fact children of the named plaintiff… adult children… who are tribal members who have claims in this very case?

Patrick J. Ward:

–There are adult children who have consortial claims that they have asserted.

Sandra Day O’Connor:

Yes.

And they are tribal members?

Patrick J. Ward:

They are–

Sandra Day O’Connor:

But their claims are not before us?

Patrick J. Ward:

–That’s correct, Your Honor, their claims are not before us.

Those are claims that are derivative and they are essentially pending claims.

And they can adequately be pursued in the State courts, as well, pursuant to the second Montana exception.

To the extent there is a tribal interest that could be asserted here, however marginal, that… that interest could be adequately protected in the State court.

And not only is there… is Petitioner conceding that there is concurrent jurisdiction, but there is actually an action pending in the State court.

And with respect to the community argument that has been made by the Petitioners, the local courthouse, the closest local courthouse… and the State court is actually closer to the area where this accident happened then the reservation courthouse, which is across the lake and around the highway.

Since the lake was constructed, you actually would have to go around the lake almost… you would have to go far west and then cross a bridge to get to the tribe courthouse and you’d just go a few miles south to get to the county courthouse.

So it’s not like there’s any disadvantage to Mrs. Frederick’s being required to use a State court of which she’s a citizen and of which she has power to vote.

If there are no further questions, Your Honor–

William H. Rehnquist:

Is Lake Sakakawea, is that a corruption of Sakajawea?

Patrick J. Ward:

–Well, the Native American people in our part of the country would argue, Your Honor, that it’s not a corruption but the actual pronunciation of the name is Sakakawea.

William H. Rehnquist:

Thank you.

Patrick J. Ward:

Thank you.