The State Bar Association of North Dakota Fall 2014 Gavel Magazine | Page 9

Tribes.” My client chose to commence
its case in Fort Berthold District (Tribal)
Court.

McIntosh were moved from the South Central
Judicial District to the Southeast Judicial
District.11
To achieve balanced redistricting, the North
Dakota Judicial Planning Committee
conducted a weighted caseload study, reviewed
case filings and population, and looked at
trends in both.12 They also studied chamber
locations, work location for judicial officers
and court personnel, and travel commitments
based on the judges’ locations. The Committee’s
“principal objective” in conducting the study
was to achieve “approximate parity among the
judicial districts in judge need, workload, and
population served by judicial officers and court
personnel.”13 In addition, Administrative Rules
6 and 6.1 were amended to reflect the Order.14

2. TRIBAL COURTS – A CONFLICT?
The court system in North Dakota continues
to expand in volume and complexity. So do the
legal issues. Here is an example.
In October 2012, I commenced litigation on
behalf of my client against four defendants:
two were companies organized under the laws
of Minnesota, one was organized under the
laws of Nevada, and the other was organized
under the laws of Florida. My client was doing
business with them on the Fort Berthold Indian
Reservation in New Town, North Dakota. My
client is a member of the federally-recognized
Mandan, Hidatsa, and Arikara Native
American Nations, also known collectively as
the “MHA Nation” or the “Three Affiliated

Defendants moved to dismiss my client’s
case for “lack of non-member tribal court
jurisdiction.” We opposed the motion and
explained to the tribal court judge that it
could and should retain jurisdiction under
Montana v. United States, 450 U.S. 544
(1981). Under Montana, tribal courts can
regulate the activities of nonmembers
(and in turn, assert jurisdiction over
nonmembers in tribal court) where:
(1) the nonmembers “enter consensual
relationships with the tribe or its members,
through commercial dealing, contracts,
leases, or other arrangements,” or (2) the
nonmembers’ “conduct threatens or has
some direct effect on the political integrity,
the economic security, or the health or
welfare of the tribe.” 450 U.S. at 565-566.
Proof of either exception gives the tribal
court jurisdiction over the dispute. See
Strate v. A-1 Contractors, 520 U.S. 438,
456 (1997).
We argued that the Court had jurisdiction
over the non-Indian defendants because
we met both Montana exceptions. One
of the defendants had contracted with
my client, so the first Montana exception
was easily met. Defendants argued that
because the party to the contract was a
company and not a human, it could not be
a “member” of the tribe for jurisdictional
purposes. We argued that my client, a
limited liability partnership, was owned
by an Indian, which meant that it was a
“member” of the tribe for jurisdictional
purposes.
The Fort Berthold Tribal Court agreed
with us. The court’s decision turned on the
novel and narrow legal issue of whether
a limited liability partnership was more
akin to a limited liability company or a
corporation for jurisdictional purposes.
We argued that the Supreme Court has
held that the citizenship of a limited
partnership for purposes of diversity
jurisdiction is determined according
to the citizenship of its limited and
general partners. See Carden v. Arkoma
Associates, 494 U.S. 185, 195-96 (1990).
Several courts have held that this holds

true for limited liability partnerships too.
See e.g. Haak Motors LLC v. Arangio,
670 F. Supp. 2d 430, 432 n.1 (D. Md.
2009); Mudge Rose Guthrie Alexander
& Ferdon v. Pickett, 11 F. Supp. 2d 449,
452 (S.D.N.Y. 1998); Reisman v. KPMG
Peat Marwick LLP, 965 F. Supp. 15, 176
(D. Mass. 1997). Defendants argued that
the limited liability partnership was more
analogous to a