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