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From Montana to Plains Commerce Bank and Beyond: The Supreme Court's View of Tribal Jurisdiction Over Non-Members

Neil G. Westesen, Natural Resources Development on Indian Lands (2011)

For many non-Indian developers of tribal minerals, there is no more terrifying news than the announcement that the company has been sued in tribal court. Horror stories of multi-million dollar judgments,1 unfamiliar laws,2 and limited appeal rights in tribal or federal court3 immediately come to mind. Second guessing about the failure to negotiate an appropriate dispute resolution clause in the haste to get a development agreement in place will immediately occur. Questions about who is licensed to practice where, what the rules of procedure in tribal court really are, and, most likely, how can we get out of this situation, will all arise. The question clients typically ask and lawyers are supposed to answer is whether the tribal court really has jurisdiction over a non-Indian defendant. The classic lawyer answer is, “It depends.” This paper will trace the evolution of tribal court jurisdiction over non-Indians and specifically look at the circuitous route the Supreme Court's analysis has taken from Montana v. United States, 450 U.S. 544 (1981) through the recent Plains Commerce Bank v. Long Family Land & Cattle Co., Inc., 554 U.S. 316 (2008) decision. The paper will then make some predictions about the future scope of tribal court jurisdiction over non-Indians in the context of mineral development.

There have been a number of papers presented on this general topic over