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April 10, 2008

Supreme Court Clinic to represent members of South Dakota tribe at U.S. Supreme Court

Students travel to D.C. to watch oral argument by clinic co-director and law alumnus

David Frederick, co-director of the Supreme Court Clinic at The University of Texas School of Law, will argue a case involving the jurisdiction of American Indian tribal courts, one of the most important Indian law cases to reach the U.S. Supreme Court in the last decade, before the high court on April 14, 2008.

Faculty and twelve students from the Supreme Court Clinic will watch Frederick, a Law School alumnus, argue Plains Commerce Bank v. Long Family Land and Cattle Company (No. 07-411). The case deals with the jurisdiction of Indian tribal courts over non-Indians.

This is the Supreme Court Clinic’s first argument before the Court. (The high court granted certiorari in a previous clinic case but the parties settled that case before briefs were filed.)

The clinic represents Ronnie and Lila Long, members of the Cheyenne River Sioux Tribe in South Dakota who are asking the Supreme Court to uphold the jurisdiction of the Cheyenne River Sioux Tribal Court over the non-Indian bank that seeks to repossess land that has been in the Long family for generations. If the clinic succeeds, the Longs will be able to retain their land.

The clinic is arguing that tribal court jurisdiction over the bank was proper because the bank had entered into a longstanding, consensual relationship with the Longs. If the Longs lose at the Supreme Court it will effectively mean the jurisdiction of tribal courts will be so diminished that they will only be able to adjudicate disputes between Indians.

While the jurisdiction of tribal courts over non-Indians has been limited by Supreme Court decisions over the last twenty years, the Clinic is asking the Court to find jurisdiction under one of the exceptions articulated in Montana v. United States. That exception allows for tribal regulation of “the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.”

Clinic faculty, students, and co-counsel wrote the merits brief that will be argued in the Supreme Court case. Jim Hurley, a South Dakota attorney with Bangs, McCullen, Butler, Foye & Simmons, L.L.P., in Rapid City, served as co-counsel on the brief. Hurley has represented the Longs as their lead counsel from the time they first filed their case in the tribal court until the appeal in the Eighth Circuit.

The Longs originally sued the petitioner, Plains Commerce Bank, after the bank attempted to foreclose on the Longs’ 2,300-acre ranch on the Cheyenne River Sioux Reservation. The Longs had been unable to meet their obligation to the bank after the bank’s predatory lending practices left them without sufficient operating capital to feed their cattle during the harsh winter of 1996–97. The subsequent death of most of their herd left the Longs without any income to pay their debts to bank. After a two-day jury trial in the Cheyenne River Sioux Tribal Court, the Longs were awarded $750,000 in damages from the bank’s conduct.

After losing in the tribal court, the bank contested the jurisdiction of the court. All three courts that subsequently reviewed the case agreed that the tribal court had jurisdiction and upheld the judgment for the Longs. After losing in the U.S. Court of Appeals for the Eighth Circuit, the bank obtained review in the Supreme Court.

Shortly after the bank persuaded the Supreme Court to hear the case, the Native American Rights Fund (NARF), a nonprofit legal advocacy organization that provides legal services to Indians, contacted Frederick, a partner at Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., in Washington, D.C. NARF, in coordination with the National Congress of American Indians, oversees the Tribal Supreme Court Project. Frederick offered the services of the clinic to represent the Long family pro bono before the Supreme Court.

Richard Guest, staff attorney with NARF who is serving as co-counsel for the Long family, said the collaboration has been beneficial for everyone involved.

NARF attorney Melody McCoy, who is also working on the case, said, “The involvement of both NARF and the clinic has allowed the Long family to benefit from our expertise in Indian law and the clinic’s expertise in Supreme Court practice.”

“Individuals such as the Longs generally can’t invest the same resources in a case as a bank. We’re pleased that we’ve been able to level the playing field by offering experienced Supreme Court representation at no cost to the Longs,” said Professor Michael Sturley, one of the clinic’s directors at the School of Law.

“This case is very significant for the clinic. It is our first opportunity for the students to work on the full process of merits briefing and preparation for oral argument,” Sturley said. “It is also the first time that we’ve represented the respondents rather than the petitioner, which means that the students are getting the opportunity to defend the lower court’s judgment.”

“The progress of the clinic over the past year has been astounding,” remarked Professor Lynn Blais, who also directs the clinic at the School of Law. “In only our second year our students are helping draft a brief on the merits and will have the opportunity to see a case they have worked on argued in front of the Court. These are experiences that many attorneys do not have in their entire careers, much less during law school.”

“The Supreme Court Clinic provides a great learning experience for our students,” said Larry Sager, dean of the School of Law. “It exposes them to the workings of one of the most important tribunals in the world, without losing sight of the human stakes in the outcomes of these cases.”

Judd Littleton, a student in his second semester with the clinic, appreciates the opportunities the Supreme Court Clinic, and particularly this case, has presented.“While the work has certainly been intense at times, it’s more than worth it for the chance to work on a case before the Supreme Court while still in law school,” Littleton said. “The variety of substantive legal areas we have worked on during my time in the clinic has provided me with a great intellectual experience, and this case involving Indian law is a perfect example of that,” he said.

Third-year student Anthony Kaim said the experience has been rewarding. “It’s not often you get to work on a question of law that hasn’t already been answered. Trying to figure out what the right answer should be and why is difficult, but the importance of the question and its effect on our clients is a great motivator,” Kaim said.

Frederick agrees that the case has been challenging. “The assignments we’ve given the students haven’t been easy, but they’ve been a tremendous resource throughout this process,” Frederick said. “They’ve always demonstrated an enthusiasm for their work, which, I think, in large part is driven by our shared concern for the Longs and our desire to see them prevail in the Court.”

Although all of the lawyers representing the Longs are concerned with the outcome for their clients, the case has given students insight into the case’s implication beyond their clients. The clinic’s involvement has had other benefits as well. Student David Bernard will be interning with NARF in Washington, D.C., this summer. “Working on a morally compelling case like the Longs’ has been very rewarding and has prompted me to think about a professional path I would not otherwise have considered,” Bernard said.

Related links:

Supreme Court Clinic

Supreme Persuasion: UT Law clinics enjoy remarkable success at the United States Supreme Court

Newly Formed Supreme Court Clinic Persuades U.S. Supreme Court to HearCase

Contacts:

Kirston Fortune, Assistant Dean for Communications, (512) 471.7330 or kfortune@law.utexas.edu.

Professor Michael Sturley, Co-director, Supreme Court Clinic, UT Law, 512-232-1350, msturley@law.utexas.edu.