I wanted to avoid posting my thoughts here yesterday, so as to allow myself some time to digest this opinion. The opinion is still as disappointing 24 hours later as when I initially read it.
The Supreme Court has essentially declared Indian tribes to be nothing more than glorified country clubs, with their authority “confined to managing tribal land, protect[ing] tribal self-government, and control[ling] internal relations.” Just like your local country club, tribes can only determine who can come on the property, who can be a member, and who can be in charge. Chief Justice Roberts reached way back to the Marshall trilogy of cases – the seminal cases in U.S. Indian jurisprudence – to support this proposition. Our supposed restrained, originalist Chief Justice managed to turn Worcester v. Georgia into a rule that Tribes are “confined to managing tribal land.” (see citation on page 16 of the Court’s opinion).
In addition to turning Worcester on its head, Roberts and the Majority shamelessly glossed over important facts in the case that were inconvenient to their outcome-based decision, stating: “there is no reason the Bank should have anticipated that its general business dealings with [the Longs] would permit the Tribe to regulate the Bank’s sale of land it owned in fee simple.” This despite the fact that the Bank was a regular litigant in the Tribe’s court, and even availed itself of the Tribal Court in this case! In her dissent, Justice Ginsburg pointed out this fact to the Majority, stating that the Bank “is no unwitting outsider forced to litigate under unfamiliar rules and procedures in tribal court.”
A jury of the trial court of the Tribe ruled that the Bank had unfairly discriminated against the Long family, and awarded damages in their favor. Roberts stated that this somehow acted as an invalid restraint on the Bank’s right to freely sell the land to which it held title. I’m still trying to wrap my head around that one.
In my view, there are several things to take from this ruling:
1.) We have been reassured that the Montana exceptions, while available in theory, will never be applied, and that tribes can forget about exercising any jurisdiction, no matter how great or small, over non-Indians on fee lands;
2.) We have also been reassured that non-Indian litigants are at a significant advantage against tribes and tribal citizens. Non-Indian parties can choose to litigate in tribal court, at a low-cost, and seek a positive outcome. If they get a desired outcome, it’s game over. If not, they get a second bite at a fresh apple, because they can take their claims to state or federal court and argue that the tribal court has no jurisdiction over them.
3.) The Roberts Court is going to be more of the same (which isn’t much of a surprise, given that he is a Rehnquist disciple). Just as his mentor Rehnquist in Oliphant, Roberts deliberately misstates the law (see his Worcester reference) and glosses over inconvenient facts to reach a predetermined outcome; and,
4.) Roberts seems to have endorsed the commonly held belief that “we stole this land fair and square.” See this passage on page 22 of his opinion:
The Cheyenne River Sioux Tribe lost the authority to restrain the sale of fee simple parcels inside their borders when the land was sold as part of the 1908 Allotment Act. Nothing in Montana gives it back.
I will leave it to Matthew, Wenona, and Kate to give a more scholarly review of this ridiculous opinion.