The first Supreme Court oral argument Monday morning was all about Native American law and the jurisdiction of tribal courts. But Chief Justice John Roberts Jr. took the debate in an unexpected direction -- across the Atlantic to southern Europe.
The issue in Plains Commerce Bank v. Long Family Land & Cattle was whether tribal courts have jurisdiction over a dispute between a nontribal bank and a company that is majority Indian-owned. More than 51 percent of the owners of the South Dakota ranching company in the case are members of the Cheyenne River Sioux Tribe, and, as such, the company was entitled to loan guarantees from the Bureau of Indian Affairs.
Roberts seemed concerned about how a bank can be expected to know whether a company it is dealing with is a so-called "Indian corporation," thereby triggering tribal court jurisdiction. After all, companies incorporate under state, not tribal, law.
"That's a concept I don't understand," said Roberts, who then pointed to the left side of the bench and added, "If Justices Scalia and Alito form a corporation, is that an Italian corporation?"
Amid laughter, veteran advocate David Frederick of Kellogg, Huber, Hansen,Todd, Evans & Figel wisely sidestepped the issue. "I would like to beg the indulgence of the Court in not answering that question specifically."
In the past, Justice Antonin Scalia, like many other Italian-Americans, has bristled at being described as Italian since he, like Alito, was born in the United States, not Italy. But Scalia went along with the joke and interjected with a question of his own: "And do we get special loan guarantees?" Justice Samuel Alito Jr. was laughing too.
Despite the exchange, it appeared possible from the oral argument that a majority of the Court will agree that tribal courts have limited civil jurisdiction over disputes between nonmember and member companies -- if the dispute involves conduct on tribal land. And that would mean a break from the recent past for the Court, which has steadily been cutting back tribal court jurisdiction over nonmembers.
First reported in The BLT: The Blog of Legal Times