15 Indian L. Rep. 6023 (Sho-Ban. Tr. Ct., App. Div., May 19, 1988)
On July 22, 1987, the trial court of the Shoshone-Bannock Tribal Court system decided the matter of Shoshone-Bannock Tribes v. FMC Corporation, No. C-87-39 (Sho-Ban. Tr. Ct., July 22, 1987) 14 Indian L. Rep. 6046, Judge Robert L. Hunter, Jr., presiding by special designation. FMC Corporation (FMC), the appellant in this matter, seeks review of the trial court decision from this court on several grounds: (1) that the tribal government has no civil jurisdiction or regulatory authority over appellant's business situated on non-Indian fee land within the exterior boundaries of the reservation; (2) that tribes are without governmental power to levy fines, impose civil penalties, require bonds, enter restraining orders or order removal of non-Indians from employment with a non-Indian firm doing business on fee land within the exterior boundaries of the reservation; (3) that the lower court decision is contrary to and not supported by the evidence; (4) that the trial court failed to join indispensable parties, and; (5) that this case amounts to selective enforcement of the Tribal Employment Rights Ordinance (TERO).
On April 15, 1987, the Tribal Employment Rights Office of the Shoshone-Bannock Tribes, the appellee, brought an action in tribal court alleging that appellant had violated provisions of the TERO. The appellee sought and was granted a temporary restraining order (TRO) restraining the appellant from recalling or promoting non-Indians on appellee's temporary recall list pending a ruling on appellee's request for a preliminary injunction. On May 1, 1987, the tribal court heard oral arguments on the motion for preliminary injunction. It extended the temporary restraining order for 10 days and on May 11, 1987 issued the requested preliminary injunction.
On April 24, 1987, appellant filed for a preliminary injunction in federal district court to enjoin the tribal court from enforcing its temporary restraining order or preliminary injunction. The federal district court issued an order on May 19, 1987, enjoining the tribal court until tribal jurisdiction over appellant was addressed by this court.
The appellee amended its original complaint, adding a cause of action alleging that appellant violated § 4.8 of the TERO by hiring 13 non-Indians in the past two years for temporary laborer positions without first giving the TERO office an opportunity to locate and refer Indians for these positions. An expedited hearing was held before Judge Robert L. Huner, Jr., on May 14, 1987. Judge Hunter rendered an opinion and order on July 22, 1987. It is from that decision that this appeal is made. In that decision Judge Hunter ordered appellant to remove from its employ 13 non-Indians he found to be hired improperly and instructed the parties to set a date for a hearing on fines and penalties. On July 31, 1987, appellant filed a notice of appeal from that decision, as well as a request for a stay and a waiver of the appeal bond requirement. On August 18, 1987, Judge Lohah of the tribal court granted the appellant's request for a stay but ordered it to post a $10,000 bond. On December 3, 1987, this court ruled on appellant's appeal from Judge Lohah's decision of August 18, 1987. The preliminary injunction was stayed and no appellate bond was imposed for this appeal.
Since 1949, the appellate has operated a phosphate processing plant on fee land within the exterior boundaries of the Fort Hall Reservation. The phosphate ore for that plant is mined from Indian and tribally owned land on the Fort Hall Indian Reservation and other areas of the region. In 1980 the Shoshone-Bannock Tribes enacted a Tribal Employment Rights Ordinance and set up a TERO office to administer a tribal employment program. The ordinance requires employers located on the reservation to give preference in employment, contracting, and subcontracting to Indians (see TERO § 4). It further required the employers to notify the TERO office of any vacancies and to give the office five days to refer qualified Indians for those vacancies. (see TERO § 4.8). Another TERO provision instructed the TERO Commission to negotiate compliance plans with each employer. The appellant entered into an employment agreement with the tribal government in July 1981.
In late 1986, the appellee became concerned about appellant's compliance with the ordinance. The appellant agreed in the compliance plan to give the TERO office the first consideration to fill temporary positions. When appellee confronted appellant about the lack of Indian hires, the explanations were unsatisfactory. The explanations appeared to range from general affirmative action obligations to emergency conditions. The appellee requested that appellant correct the situation by increasing the seniority of Indians on the temporary recall list. Sixteen non-Indians were hired by appellant for temporary positions in 1985 and 1986. This court has been informed that ten have been promoted to permanent positions.
The threshold issue of FMC's appeal is its argument that the tribal government has no civil jurisdiction or regulatory authority over its business situated on (non-Indian owned) fee land within the exterior boundaries of the Fort Hall Indian Reservation. In its analysis the appellant relies in part upon the United States Supreme Court's decision in Oliphent v. Suquamish Indian Tribe, 435 U.S. 191 [5 Indian L. Rep. A-91] (1978). The Oliphant decision focused exclusively upon criminal jurisdiction of tribal governments over non-Indian defendants who violate tribal criminal laws. Using an historical perspective, the Court in effect exempted non-Indians from criminal liability to tribal governments by noting the "commonly shared presumption of Congress, the Executive branch, and lower federal courts that tribal courts do not have the power to try non-Indians." Id. at 206. There is no comparable presumption concerning the civil jurisdiction of tribal courts. On the contrary, the different rule applicable to the assertion of tribal civil jurisdiction was recognized as early as 1855 in an opinion of the attorney general cited by the Supreme Court in the Oliphant decision. Certainly, the absence of tribal criminal jurisdiction over non-Indians provides no basis for disabling tribal governments from exercising civil jurisdiction over non-Indians and, since Congress is said to possess plenary power over the affairs of Indian tribes in the United States, then it has the federal responsibility when necessary to infringe upon the civil jurisdiction of Indian tribes. Absent congressional action, civil jurisdictional limitations on tribes may be self-imposed. The tribal government in this instance imposed no limiting language concerning civil jurisdiction in the law and order code.
The United States Supreme Court has long recognized that Indian tribes constitute political communities which enjoy substantial sovereign powers over both Indians and non-Indians within the exterior boundaries of Indian reservations. That point has been made by the Supreme Court time and time again. See Williams v. Lee, 358 U.S. 217, 223 (1939); Warren Trading Post Co v. Arizona Tax Comm’n, 380 U.S. 685, 690-92 (1965); Kennerly v. District Court, 400 U.S. 423, 42 & 27 (1971); United States v. Mazurie, 419 U.S. at 557-58 [2 Indian L. Rep. No. 2, p.1] (1975); United States v. Antelope, 430 U.S. 641, 645 [4 Indian L. Rep. A-76] (1977); Santa Clara Pueblo v. Martinez, 436 U S. at 55-56 [5 Indian L. Rep. A-55]; Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. at 152-54 [7 Indian L. Rep. 1023]; White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142, 151 [7 Indian L. Rep. 1055] (1980); Montana v. United States, 450 U.S. 544, 565-66 [8 Indian L. Rep. 1005] (1981); Merrion v. Jicarilla Apache Tribe, 455 U.S. at 140, 146-48; Ramah Navajo School Board, Inc. v. Bureau of Revenue, 458 U.S. 832, 837-38 [9 Indian L. Rep. 1035] (1982); New Mexico v. Mescalero Apache Tribe, slip op. 8-12 [10 Indian L. Rep. 1028].
In recent years, the Supreme Court has established Several principles for determining whether or not a tribe's sovereign authority empowers it to exercise civil jurisdiction over non-Indians located on fee land within a reservation. In Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980), the Court held that tribes possessed that authority unless its exercise was inconsistent with the overriding interests of the federal government. In Montana v. United States, 450 U.S. 544 (1981), the Supreme Court held that tribes do not retain that authority unless the non-Indian had entered into "consensual relations” with the tribe or the non-Indians' activities threaten or have some direct effect on the political integrity, the economic security or the health and welfare of the tribe. In Merrion v. Jicorilla Apache Tribe, 455 U.S. 130 (1982), the Supreme Court concluded that a tribe’s civil jurisdiction is not diminished just because the activity takes place on non-Indian fee land.
In each Supreme Court decision noted above, either expressly or implicitly, tribal civil jurisdiction is recognized based upon a historical exercise of that jurisdiction through an understanding by the parties that tribal civil jurisdiction is applicable. Until this controversy, the appellant had acknowledged that it was subject to the civil jurisdiction of the tribal government through contracts, leases, taxation and its initial efforts to comply with the TERO.
Not unlike many Indian reservations, the Fort Hall Indian Reservation has suffered chronically from a depressed economy and an absence of sufficient employment opportunities for its tribal members. The preamble of its TERO reiterates its constitutional responsibility to protect the "general welfare." Enactment of this ordinance is authorized by the tribal constitution and the spirit of the ordinance reflects a concern for improving the employment status of members of the Shoshone-Bannock Tribes.
In democratic governments of the modern world organic documents are construed broadly so that governments maintain the ability to respond to the changes in social patterns and needs, population increases and diversities, technological improvements, and governmental developments. No less accord should be granted to the Constitution of the Shoshone-Bannock Tribes.
Because the TERO directly affects nonmembers of the Fort Hall Indian Reservation, it was subject to the review of the Secretary of the Interior pursuant to the tribal constitution. In a memorandum dated October 21, 1980, the Bureau of Indian Affairs stated that their regional solicitor's office had reviewed the TERO and found no legal impediments to its approval. The ordinance was then approved on behalf of the Secretary of the Interior.
The TERO has the effect of statutory law applicable to the employment policies and practices of employers within the exterior boundaries of the Fort Hall Reservation. Governed by its constitution, its statutory laws and the mandate of the Indian Civil Rights Act of 1968 (25 U.S.C. § 1301 et. seq.), the Shoshone-Bannock tribal government regulates in the first instance the general employment policies and practices of its jurisdiction. This is a constitutional mandate and a governmental responsibility to protect the "general welfare."
The exercise of civil jurisdiction over appellant in this case cannot be successfully questioned given the current state of the law and the historical and present relationship between the parties. Even when analyzed against the impotency of Montana v. United States 450 U.S. 544 (198l) concerning the exercise of tribal civil jurisdiction over non-Indians on non-Indian fee land within the exterior boundaries of a reservation. FMC is convincingly subject to the civil jurisdiction of the tribal government in this controversy.
In Montana, the regulatory powers of the state of Montana on its fee land situated within the exterior boundaries of the Crow Reservation was pitted against the jurisdiction of the tribal government. In order to characterize regulatory jurisdiction in that instance with the state of Montana, the United States Supreme Court look sparingly upon the civil jurisdiction of tribal governments over non-Indians on non-Indian fee land within the exterior boundaries of the reservation. The Court created its “Montana” tests to determine whether or not an Indian tribe could properly exercise civil regulatory jurisdiction over non-indians on (non-indian owned) fee land within the exterior boundaries of the reservation. According to Montana, the tribal government may exercise civil regulatory jurisdiction over appellant if it has entered into “consensual relationships” with that government through commercial transactions, contracts, leases or other arrangements. Secondly, the tribal government retains inherent power to exercise civil jurisdiction over non-Indians on fee land within the exterior boundaries of the reservation when the conduct of those non-Indians threatens or has some direct effect upon the political integrity, the economic security, or the health or welfare of the tribe. Supra at 366.
There is substantial evidence in the record below that since 1949, many “consensual relationships” have been struck between the tribal government and FMC. This extensive record of consensual relationships is viewed by this court as firmly establishing a relationship between the tribal government and FMC as a linkage between a local government doing business with and having the authority to regulate a business enterprise within its substantive and territorial limits.
Pursuing the course of Montana, this court only needs to examine the "consensual relationship" established when FMC signed the 1981 employment agreement. This "consensual relationship" is one in which FMC declares by the writing that it is subject to the regulatory authority of the tribal government to promulgate and enforce employment policies and practices of firms doing business on the Fort Hall Reservation. This agreement was later canceled; however, that fact does not detract from the establishment of the consensual relationship between a government and a firm doing business in and consenting to the territorial and the civil regulatory jurisdiction of said government.
The TERO of 1980 is a legislative enactment of the tribal government for the purpose of regulating the employment policies and practices of all the employers doing business on the Fort Hall Indian Reservation. Since unemployment is a crisis situation on the reservation, the tribal government has a substantial governmental interest and obligation to take measures to improve the negative employment conditions of its members by developing employment opportunities. As long as the ordinance invokes a compliance mechanism which assures the due process mandate of the Civil Rights Act of 1968, the tribal government is exercising valid civil regulatory powers. The "compliance plan" provision of the TERO provides adequate assurances that employers would be treated fairly by the tribal government.
The second prong of Montana states that a tribal government retains inherent power to exercise civil jurisdiction over non-Indians on fee land within the exterior boundaries of the reservation when the conduct of those non-Indians threatens or has some direct effect upon the political integrity, the economic security or the health or welfare of the tribe.
From the record below it appears that the conduct of the appellant has infringed substantially upon the political integrity of the tribal government. FMC has consented to tribal taxation and entered into agreements with the tribal government, including the 1981 employment agreement the acknowledgment of which by FMC indicates to this court that FMC recognized the tribal government's civil jurisdiction over its activities on the reservation. The appellant cannot arbitrarily stand outside the civil regulation of the tribal government at its convenience. Such conduct impacts negatively upon the tribal government in regulating others within its jurisdiction. Again, it is the province of either Congress or the tribal government to determine the parameters of tribal civil jurisdiction. The appellant's effort to circumvent the regulatory authority of the tribal government by claiming that the tribal court has no jurisdiction to hear this case is a definite threat to the political integrity of this tribal government .
The tribal government has a compelling and overriding governmental interest in promulgating and implementing laws which regulate employment policies and practices of firms doing business on the reservation. The interest here is the governmental obligation to improve economic conditions on the reservation and thereby develop a healthy economic integrity for the people of the Fort Hall Reservation. The measuring device for gauging that integrity is the assessment (continuing) of the economic status of the citizenry of the reservation.
Chronic poverty is a historical fact of Indian Country. Fort Hall is no exception. In the early 1800s many Indian tribes were forced to give up their homelands. In dramatic efforts to seek peace tribes made enormous land concessions to the United States in return for the promise of peace. Tribes were ordered to exist within the confines of Indian reservations where the cancer of poverty has raged for generations. The TERO is an effort to improve the economic conditions of Indians of the Fort Hall Reservation. Appellant's challenge to the TERO is a threat to the economic integrity of the tribes. The tribal citizenry is the tribal government and community.
 List issued for recall and promotion to permanent entry-level positions. The senior person on the list is the first recalled for temporary work and the first promoted to a permanent job when a vacancy becomes available.
 7 Op. Att’y Gen. 174, cited in 435 U.S. at 199.
 Shoshone-Bannock Law and Order Code, ch. 1, § 2.1 provides:
The Shoshone-Bannock Tribal Court shall have jurisdiction over all civil matters and actions as described in this Law and Order Code, as well as civil jurisdiction over all ordinances that may hereafter be passed by the Fort Hall Business Council and amendments to this Code that may hereafter be adopted; and, any person may file a civil cause of action in the Shoshone-Bannock Tribal Court wherein the cause of action arose within the exterior boundaries of the Fort Hall Reservation, and that Court shall have jurisdiction of the Court is not limited by the amount or value in controversy, including interest.
 Shoshone-Bannock Constitution art. VI, § 1, subpart (1): “To safeguard and promote the peace, safety, morals and general welfare of the Fort Hall Reservation by regulating the conduct of trade and the use and disposition of property upon the reservation, provided that any ordinances directly affecting nonmembers of the reservation shall be subject to review by the Secretary of the Interior.”
 Text of Memorandum:
The Regional Solicitor’s Office has reviewed the Fort Hall ordinance EXPT-80-54 (TERO) and found no legal objection to approval of this ordinance. Therefore, we find no reason to disapprove tour approval and this ordinance is in full force and effect as of the date of your approval.
Signed Clifford Benson
Acting Assistant Area Director
 Appellant’s brief refers to Judge Callister of the local federal court for an affirmation of his arguments. If Judge Callister is offering advice and opinion in this case to appellant’s counsel, such conduct is extremely ill-advised and contrary to standard judicial ethics. Hopefully, appellant’s counsel is exaggerating the statements of Judge Callister. Appellant’s brief quotes Callister as saying “there is a serious question as to how far the tribe can go in regulating FMC on the basis of the mining leases.” (See appellant’s brief at 21.)