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					 Federal Indian Law

Civ Reg Jurisdiction cont. and
   Tribal Court Exhaustion
 Civil Adjudicatory Jurisdiction
• National Farmers is first case (brought
  in federal court) from a tribal court on a
  civil matter
  – Williams v. Lee from state court
  – Talton and Crow Dog, criminal cases
• Comes after Montana
  – (but Montana does not apply to resolve the
    case, why)?
   National Farmers Union v.
             Crow
• Member tort claim for accident on
  school parking lot (state) within the rez
  boundaries
• School didn’t respond, tribal court
  enters default judgment
• School files action in fed dist ct., without
  appealing to tribal appeals court
      Federal District Court
• Jurisdiction?
  – No statute for review of tribal court
    decisions, but
  – Federal question jurisdiction?
     • “all civil actions arising under the Constitution,
       laws or treaties of the US”
     • And federal common law


• What type of case was this?
 Federal Question Jurisdiction
• Any time there is a challenge to
  exercise of tribal authority, it is a federal
  question

• But what will be the nature of the federal
  court review?
  Jurisdiction in Nat’l Farmers
• 85% of the school Indian kids, located
  on rez
• Does the court extend Oliphant to this
  case?
  – “the reasoning of Oliphant does not apply
    to this case”
• It is not automatically foreclosed, need
  careful consideration on case-by-case
  basis
     Tribal Court Exhaustion
• Tribe should conduct the jurisdictional
  inquiry first
• Allow the tribal court to develop a full
  record
  – At least on the question of jurisdiction
  – Look to tribal code for interlocutory appeal
    procedures
 Fn 21 exhaustion exceptions
• Bad faith or harass
• Patently violative of express
  jurisdictional prohibitions
• Futility for lack of opportunity to
  challenge jurisdiction
             Iowa Mutual
• Diversity jurisdiction in federal court
  – While case pending in tribal court
  – The insurance company sought declaratory
    judgment that injury not covered under
    policy

  – Does exhaustion rule apply to diversity
    cases?
       Montana and Oliphant
            Together
• that tribes are implicitly divested because of their
  dependent status, of jurisdiction over non-Indians,
  but:
• In the context of criminal arena, there is divestiture
  of ALL jurisdiction over non-Indian
• In the context of civil regulatory jurisdiction, the
  doctrine depends upon the status of the land on
  which the conduct occurs. And while tribes are
  presumed to be divested of jurisdiction over non-
  Indians on non-Indian fee lands, there are
  exceptions.
   – Is there an altogether different test for tribal
     court jurisdiction? If so, what?
 Montana and National Farmers
       Read Together
• Civil Regulatory = Montana Test
• Civil adjudicatory = case-by-case basis
  – with presumption that jurisdiction must
    exist over non-Indians sometimes

  – Williams v. Lee denies state court
    jurisdiction over matters involving Indians
    on reservation
  – No such thing as “default” jurisdiction

				
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posted:12/25/2010
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