In re Estate of Tasunke Witko, a.k.a. Crazy Horse v. The G. Heileman Brewing Co. | 23 Indian Law Reporter 6104 | May 01, 1996 | tnorris.jd15

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In re Estate of Tasunke Witko, a.k.a. Crazy Horse v. The G. Heileman Brewing Co.

Original Creator: Joseph William Singer Current Version: tnorris.jd15
No. Civ. 93-204 (Rbd. Sx. Sup. Ct., May 1, 1996) EDIT ANNOTATED ITEM INFORMATION DELETE ANNOTATED ITEM
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In re Estate of Tasunke Witko, a.k.a. Crazy Horse

2

v.

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The G. Heileman Brewing Co.

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No. Civ. 93-204 (Rbd. Sx. Sup. Ct., May 1, 1996)

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EN BANC before Chief Justice Greaves, Associate Justices Lee, Pommersheim, Roubideaux, Swallow[1] and Zephier.

6

I.Introduction

7

Tasunke Witko, popularly known as Crazy Horse, is a revered nineteenth century (1842? – 1877) Lakota political and spiritual leader who lived all of his life within the bounds of the Great Sioux Nation Reservation[2] which included the present day Rosebud Sioux Reservation.[3] Tasunke Witko was a person of great moral character who steadfastly opposed the use and abuse of alcohol products by his people.[4]

8

Mr. Seth H. Big Crow, Sr., a member of the Rosebud Sioux Tribe and a resident of the Rosebud Sioux Reservation, is a direct descendant of Tasunke Witko. On March 4, 1993, he filed a petition for Letters of Administration in the Rosebud Sioux Tribal Court and was subsequently named as the Administrator of Tasunke Witko’s estate on April 12, 1993.

9

The G. Heileman Brewing Company, Hornell Brewing Company, and John Ferolito and Don Vultaggio, the Defendants/Appellees herein, are the manufacturers, distributors, and marketers of various alcoholic (and non‑alcoholic) drinking products including, but not limited to, the ornately packaged “The Original Crazy Horse Malt Liquor.”[5] This particular product has been promoted, distributed, displayed for sale and sold from on or about March 17, 1992. Other alcoholic (and non‑alcoholic) products of the Defendants/Appellees have been manufactured, promoted, and offered for sale prior to 1992. “The Original Crazy Horse Malt Liquor” has not been manufactured, advertised or offered for sale in South Dakota or on the Rosebud Sioux Reservation. Other alcoholic beverages of the Defendants/Appellees such as “Old Style,” “Schmidt,” and “Special Export” are advertised offered for sale in South Dakota and on the Rosebud Sioux Reservation.[6] Non‑alcoholic beverages of the Defendants/Appellees such as “Arizona Iced Tea,” “Arizona Mucho Mango Cocktail” and “Arizona Strawberry Punch Cowboy Cocktail” are also advertised and offered for sale in South Dakota and on the Rosebud Sioux Reservation.[7]

10

During the period of March – June 1993, there was written and oral communication between the parties and other concerned (non-party) Lakota individuals and groups about the alleged “insult and injury” of Defendants’ actions and the likelihood of legal action if such activities of the Defendants/Appellees were not halted.[8]

11

No mutually agreed upon solution emerged from these various exchanges. As a result, the Estate of Tasunke Witko filed a lawsuit against the Defendants/Appellees in the Rosebud Sioux Tribal Court on August 25, 1993. An amended complaint was filed on September 22, 1993. The complaint and amended complaint asserted five separate causes of action, namely, the knowing and willful tortious interference with customary rights of privacy and respect owed to a decedent and his family, the tortious interference with Plaintiff’s property right commonly known as the “right of publicity,” the negligent and intentional infliction of emotional distress on the heirs of the Estate through acts of exploitation and defamation, violation of the Indian Arts and Crafts Act,[9] and violation of the Lanham Act.[10] These claims were asserted — where applicable — under both tribal and federal law.

12

The Estate seeks wideranging relief including declaratory and injunctive relief, money damages, a written public apology, and culturally appropriate compensation such as “presenting to the Estate one (1) braid of tobacco, one (1) four ‑ point Pendelton blanket and one (1) racing horse for each State, Territory or Nation in which said products have been distributed and offered for sale.” On October 26, 1994, the Defendants/Appellees filed a motion to dismiss pursuant to Rule 12(b) of the Rosebud Sioux Rules of Civil Procedure.[11] A hearing on Defendants’ motion was held on June 27, 1994 before the Honorable Stanley E. Whiting, Pro‑Tem Tribal Judge. No testimony was taken at this hearing. The motion was considered solely on the complaint(s), including affidavits and exhibits, and Defendants’ motion to dismiss.[12]

13

On October 25, 1994 the Honorable Stanley E. Whiting granted Defendants’ motion, issued a memorandum opinion, and dismissed the action for lack of jurisdiction. The trial court’s opinion did not appear to distinguish between personal and subject matter jurisdiction. The Estate subsequently filed a timely notice of appeal. The Defendants filed no cross appeal. Pursuant to Rule 20 of the Rules of Procedure of the Rosebud Sioux Tribal Court of Appeals, the Court, on its own motion, ordered the appeal to be heard en banc.[13] Two amicus briefs were properly filed with this Court.[14] On March 29, 1996, oral argument [15] was heard before the en banc Court sitting at the University of South Dakota School of Law in Vermillion, South Dakota.

14

II. Issues

15

This appeal raises three significant — and occasionally overlapping — issues namely:

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A. Whether the trial court applied the correct legal standard in deciding the Defendants’ motion to dismiss;

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B.Whether the trial court erred as a matter of law in its analysis of the issues of territorial, personal and/or subject matter jurisdiction as they pertain to Plaintiff’s causes of action sounding in tort, defamation, and the “right of publicity”; and

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C. Whether the trial court erred as a matter of law in its jurisdictional analysis of the federal statutory causes of action asserted under the Indian Arts and Crafts Act and the Lanham Act.

19

III.Discussion

20

Each issue will be discussed in turn.

21

A. Legal Standard for Ruling on a Motion to Dismiss and the Appropriate Standard of Review.

22

The proper standard of review on questions of law concerning jurisdiction is de novo.[16] See e.g. Haisten v. Grass Valley Medical Reimbursement Fund, 784 F.2d 1392 (9th Cir. 1986). Most unfortunately, the trial court’s opinion does not articulate or indicate any legal standard it applied or used to guide its analysis on the motion to dismiss. This in and of itself likely constitutes reversible error. For purposes of analytical and conceptual clarity in the future, this Court provides and sets forth the necessary analysis. The proper standard and guidance in this regard are found in the case of Lake v. Lake, 817 F.2d 1416 (9th Cir. 1987).

23

In Lake, similar to the case at bar, the trial court decided the issue of jurisdiction based on affidavits and other written materials but without making adequate factual findings. In this case — complicated by the absence of any legal standard — the analytical groundwork set forth in Lake is therefore worth quoting in some detail:

24

The district court decided the issue of its personal jurisdiction over Taylor on the basis of affidavits and written discovery materials: thus, the Lakes needed to make only a prima facie showing of jurisdictional facts in order to avoid the motion to dismiss. Data Disc, Inc. v. Systems Technology Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). Because the court made no findings on the disputed facts, we review the materials presented de novo to determine if plaintiff has met the burden of showing a prima facie case of personal jurisdiction. Brand v Menlove Dodge, 796 F.2d 1070, 1072 (9th Cir. 1986). All factual disputes are resolved in the plaintiffs’ favor. Id.; Fields v. Sedgwick Associated Risks, Ltd., 796 F.2d 299, 301 (9th Cir. 1986). Presenting a prima facie case of jurisdiction, however, does not necessarily guarantee jurisdiction over the defendant at the time of trial. The district court has the discretion to take evidence at a preliminary hearing in order to resolve any questions of credibility or fact that arise subsequent to this appeal. If such an event arises, plaintiff, being put to full proof, “must establish the jurisdictional facts by a preponderance of the evidence, just as he would have to do at trial. “ Data Disc, 557 F.2d at 1258.[17]

25

Therefore, on remand, if there are any subsequent questions of credibility or fact, the trial court has the discretion to take evidence at a preliminary hearing in order to resolve same. If such an event arises, as noted in Lake, Plaintiff must establish the jurisdictional facts by a preponderance of the evidence, just as he would have to do at trial.

26

Within the limits of the record before this Court, we will proceed to analyze the remaining jurisdictional issues engendered by this appeal in accordance with the prima facie standard in which all factual disputes are resolved in the Plaintiff’s favor. This analysis will also identify and apply the appropriate substantive legal standard(s).

27

B. Jurisdiction.

28

1. Territorial Jurisdiction

29

The Defendants/Appellees contend that the tribal court’s jurisdiction is territorial[18] in nature and since they never entered the physical confines of the reservation, there can be no jurisdiction over them for their activities that took place outside the territory of the reservation. The argument is seriously misinformed. The law of the Rosebud Sioux Tribe is clearly to the contrary.

30

While the Constitution of the Rosebud Sioux Tribe asserts that its jurisdiction “shall extend to the territory within the original confines of the Rosebud Reservation boundaries,”[19] this declaration is meant to emphasis the internal territorial integrity of the tribe’s legal authority as a matter of tribal law. It is, for example, axiomatic in Indian law that federal courts have sometimes (perhaps even often) decided the reach of tribal jurisdiction, at least, in part, on whether the land where the contested events occurred within the reservation was tribal or individual Indian trust lands or non‑Indian land held in fee.[20] Clearly these land tenure distinctions within the reservation are not at issue in this case. The harm, if any, that the Plaintiff Estate suffered was on tribal or individual Indian trust land within the reservation.

31

The Rosebud Sioux Tribe does not limit its potential “territorial” jurisdiction to the crabbed reading suggested by the Defendants/Appellees. The fact that the tribe has a “long arm”statute set out at Rosebud Sioux Tribal Law and Order Code § 4-2-7[21] indicates the Tribe’s clear intent, consistent with notions of due process,[22] to assert jurisdiction over non-residents who, for example, commit tortious acts that have effects within the reservation.

32

2. Personal Jurisdiction.

33

 

34

It is this issue that appears to be at the heart of the trial court’s decision. The trial court’s memorandum decision focuses much of its attention on the “minimum contacts” analysis required under the due process guarantee. Yet its analysis is seriously flawed because it does not articulate any (much less the correct) legal standard applicable to a motion to dismiss, applies some facts but ignores others without explanation, and misapprehends and misapplies the appropriate due process standard. Each of these matters will be treated separately.

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a) Motion to Dismiss Standard.

36

As noted above,[23] the proper standard to apply in the context of a motion to dismiss is that the Plaintiff needs to make only a prima facie showing of jurisdictional facts to avoid a dismissal and all factual questions are resolved in the Plaintiffs’ favor.[24] In light of the fact that all factual disputes are resolved in favor of the Plaintiff, it is both curious and fatal that some of what would appear to be the most relevant facts are not even mentioned in the trial court’s memorandum opinion.

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b) Relevant Facts.

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The Plaintiff made numerous factual assertions in its complaint(s), affidavits, and exhibits that were not controverted by Defendant and even if they were, they would have to be construed in favor of the Plaintiff. However, these assertions were, apparently, simply ignored by the trial judge. These include, but are not limited to, the following: assertions that the Defendants continuously advertised and sold other alcoholic beverages such as “Old Style,” “Schmidt’s,” and “Special Export”[25] in South Dakota and on the Rosebud Sioux Reservation; that the Defendants continuously advertised and sold other non‑alcoholic beverages such as “Arizona Iced Tea,” “Arizona Mucho Mango Cowboy Cocktail,” and “Arizona Strawberry Punch Cowboy Cocktail”[26] in South Dakota and on the Rosebud Sioux Reservation; that Defendants made at least one telephone call to, and sent at least one package of allegedly defamatory materials to Plaintiff/Administrator on the Rosebud Sioux Reservation,[27] and that the Defendants’ advertising label on each bottle of “Original Crazy Horse Malt Liquor”[28] specifically exalted and targeted the forum reservation which was the home of the decedent Crazy Horse and is the home of the Plaintiff/Administrator. There may be other relevant facts; this is merely a sampling. At this point, the issue, of course, is not whether these (or other) facts are ultimately true, but only assuming that they are true (as we must) do they make out a sufficient prima facie case to withstand a motion to dismiss? The answer lies in the application of these and other relevant facts to the applicable “minimum contacts” due process standard.

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c) “Minimum Contacts” Due Process Analysis.

40

Due process exists as an individual guarantee against the federal government pursuant to the Fifth Amendment,[29] against state governments pursuant to the Fourteenth Amendment,[30] and against tribal governments pursuant to the Indian Civil Rights Act of 1968[31] and any tribal constitutional guarantee.[32] Normally, the strictures of the United States Constitution do not apply against tribes. Talton v. Mayes, 116 U.S. 376 (1896). Federal courts have also ruled that the substantive content of the due process clause and other guarantees of the Indian Civil Rights Act of 1968 need not exactly mirror that of the United States Constitution. See e.g. Tom v. Sutton, 533 F.2d 1101 (9th Cir. 1976) and Wounded Head v. Tribal Council of Oglala Sioux Tribe, 507 F.2d 1079 (8th Cir. 1975). And while this Court has no doubt at traditional Dakota notions of due process that provide everyone the opportunity to be heard before making a decision are met in this case,[33] it is, nevertheless, necessary to also apply the federal due process “minimum contacts” analysis. This is so because as the Supreme Court announced in National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985) the proper extent of tribal court jurisdiction is ultimately a matter of federal (common) law and therefore as to matters of jurisdiction, federal standards — including “minimum contacts” due process analysis — are applicable.

41

There are essentially two issues involved in construing a long arm statute. These are whether the intent of the long arm statute is to maximize its possible jurisdiction and if so, whether such assertion meets the requirements of due process. The former issue is decided solely by the local law of the forum and the latter by federal due process analysis. Helecoptreos Nacionales de Columbia v. Hall, 466 U.S. 408 (1984).

42

As to the former issue, it is clear that the intent of the tribal long arm statute is that its reach be co-existent with the federal due process clause. This is in keeping with the modern trend and the tribal commitment to provide a forum for all wrongs that have impact on individuals residing on the reservation. The preamble to the tribal long arm statute which states, in relevant part, the intent of asserting jurisdiction “to the greatest extent consistent with due process of law” is unequivocal in this regard.[34] This interpretation of tribal law is not subject to federal review. As noted by the United States Supreme Court in Helicopteros Nacionales de Colombia v. Hall:

43

It is not within our province, of course, to determine whether the Texas Supreme Court correctly interpreted the state’s long arm statute. We therefore accept that court’s holding that the limits of the Texas statute are coextensive with those of the Due Process Clause.[35]

44

The most recent hallmark decisions of the United States Supreme Court in the long arm context are Calder v. Jones, 465 U.S. 783 (1984) and Burger King v. Rudzewicz, 471 U.S. 462 (1985). Both of these cases make it clear that it is possible for a forum to assert personal jurisdiction over a defendant even when he has not physically entered or carried on business within the forum jurisdiction.

45

As the Supreme Court noted in Burger King, “The Due Process Clause protects an individual’s likely interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’” 471 U.S. 462, 471‑72 (citing International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)). The Burger King opinion goes on to emphasize that a potential defendant may receive the necessary “fair warning” on which to condition jurisdiction if it has “purposefully directed” its activities at the forum and as a result it could have or should have foreseen being “haled” into that particular forum. In addition, the Court emphasized, “Moreover, where individuals ‘purposefully derive benefits’ from their interstate activities, . . . it may well be unfair to allow them to escape having to account in other states for consequences that arise proximately from such activities.” Burger King at 473‑74. The Burger King Court found the necessary contacts of the Defendant who never physically entered or carried on business in the forum state of Florida.

46

In Calder, the actress Shirley Jones sued the writer of an allegedly defamatory article about her in California where Ms. Jones resided. The writer — defendant had never been in California. The Court found the necessary contacts to justify “in personam” jurisdiction over the defendant. It emphasized that defendant “knew” that Ms. Jones would suffer the “effect” of the defamatory statements in the forum state. The Court also noted that the vehicle for the defamatory article — The National Enquirer (not a defendant in the case) — had a substantial circulation in the forum state of California.

47

If the requirements of Calder and Burger King are integrated and harmonized, the key questions become did the defendant engage in activities “purposefully directed” to the forum, did the defendant know the plaintiff would suffer the “effects” of defendant’s activities in the forum, and was all of this reasonably foreseeable to justify “haling” the defendant into the forum’s jurisdiction?

48

The trial court did not discuss this legal standard, but rather found no facts to support jurisdiction. The trial court stated, “[a]ctually, the facts established that Defendant made no contacts with the heirs of Crazy Horse or with the Rosebud Sioux Tribe Reservation.” Slip Op. at 13. And again, “[f]urther, there are no contacts whatsoever by the Defendants with Plaintiff’s [sic] in any manner.” Slip Op. at 14. These factual conclusions are quite simply erroneous and unwarranted. The Plaintiff Estate made numerous factual assertions to the contrary (none of which were even contradicted by the Defendants) which must be assumed to be true for purposes of a motion to dismiss. Lake at 1420.

49

A reasonable cross‑section of these facts has already been enumerated.[36] These facts include, but are not limited to, the advertisement and sale of other alcoholic and non-­alcoholic beverages by the Defendants in South Dakota and on the Rosebud Sioux Reservation, the making of one telephone call and the mailing of one package of allegedly defamatory materials by a representative of Defendants to the Plaintiff/Administrator or his attorney on the Rosebud Sioux Reservation and that the advertising label on “Original Crazy Horse Malt Liquor” bottles is specifically directed to the forum.

50

The trial court provided no explanation for ignoring these facts and it has therefore committed reversible error. Because the trial court made no findings on the facts — disputed or otherwise — we review the materials de novo to determine if Plaintiff has met the burden of showing a prima facie case of personal jurisdiction. Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir. 1987).

51

We find that Plaintiff/Administrator has made a prima facie showing. Defendants are conducting business — albeit only with related non-offending alcoholic and non‑alcoholic beverages — in the forum, and have made physical — admittedly limited — contact with the forum through the single telephone call and mailing of package of allegedly defamatory materials to the Plaintiff/Administrator or his attorney on the Rosebud Sioux Reservation. These physical and business activities satisfy traditional “minimum contacts” requirements.

52

In addition and in support of our conclusion, it is noteworthy to demonstrate how the Defendants want it both ways. In the advertising label affixed to each bottle of the “Original Crazy Horse Malt Liquor,” Defendants clearly exalt and direct their activities to the forum. The label ornately proclaims:

53

“The Black Hills of Dakota, steeped in the history of

the American West, home of Proud Indian Nations.

A land where imagination conjures up images of blue clad

Pony Soldiers and magnificent Native American Warriors,

A land still rutted with wagon tracks of intrepid pioneers.

A land where wailful winds whisper of Sitting Bull.

Crazy Horse and Custer.

A Land of character, of bravery, of tradition.

A land that truly speaks of the spirit that is America.”

54

Defendants demur to this reading claiming that they did not know there were any living descendants of Crazy Horse, much less living on the Rosebud Sioux Reservation at the time they began to market and sell the “Original Crazy Horse Malt Liquor.” While it is true that the Rosebud Sioux Reservation is not specifically mentioned on the label, it is clearly subsumed within the phrase “The Black Hills of Dakota . . . home of proud Indian Nations.” The professed east coast ignorance may well have been true at the time the product first entered the market, but certainly it ended when Defendants were informed by the Plaintiff/Administrator (prior to instigating this lawsuit), other members of the Lakota Nation, and members of South Dakota’s congressional delegation and others of their ongoing offensive conduct within the forum.[37] Conduct, it may be noted incidentally, that has not been discontinued. For the jurisdictional importance of ongoing activity by a defendant with notice of the alleged wrongfulness of the conduct at issue, see Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558 (Fed. Cir. 1994).

55

Despite this purposeful activity, Defendants have studiously avoided the actual marketing and sale of “Original Crazy Horse Malt Liquor” in Indian county in and around South Dakota including the Rosebud Sioux Reservation. Given the marketing and sale of similar — but non‑offending — products in the forum, this avoidance appears to be the most cynical ploy. Defendants exalt and target the forum where it taps a likely vein of customers, but studiously avoid marketing and sale in the forum itself because their conduct is potentially offensive and tortious there. It seems wholly unlikely that the due process clause can be made to countenance such distortion and manipulation and this Court holds that it does not.

56

These marketing activities of the Defendants are “purposefully directed” to the forum, with notice and knowledge of the potential adverse “effects” on the Plaintiff/Administrator within the forum. Potential harm is clearly foreseeable. The actions of the Defendants do not constitute “mere untargeted negligence.” (Calder at 789.) These facts taken together clearly meet the requirements of Calder and Burger King. See also Brainard v. Governors of University of Alberta, 873 F.2d 1257 (9th Cir. 1989) in which the defendant was held subject to personal jurisdiction in a forum where his only contact was to receive two phone calls and respond to a letter. The defendant never physically entered the forum.

57

Similarily, in VDI Technologies v. Price, 781 F. Supp. 85 (D.N.H. 1991), the court held for jurisdictional purposes that a party commits a tortious act within the state when injury occurs in the forum even if the injury is the result of acts outside the state. This is also the case at bar.[38] In VDI Technologies, the court found personal jurisdiction over the defendant based solely on letters defendant sent to plaintiff’s customers outside the forum because of defendants knowledge of the likely harm to the plaintiff within the forum. Again, this closely parallels the case at bar. The Defendants were on notice that their ongoing tortious conduct was causing harm to the Plaintiff Estate within the forum. This case, like VDI Technologies, is one of purposeful effects, not unintended consequences. See also Dakota Industries, Inc. v. Dakota Sportswear, Inc., 946 F.2d 1385 (8th cir. 1991). Defendants may not escape accountability in the very forum they assiduously cultivate when it fits their purposes, but simultaneously seek to avoid because of the likely harm to accrue there.

58

The analytical horizon drawn from this line of cases is eminently reasonable and fully comports with the requirements of due process. We therefore find that the “minimum contacts” due process requirement — in the context of a motion to dismiss — are fully met in this case. More broadly, such a result comports with notions of reasonableness and fair play that are also embedded in the concept of due process, Sinatra v. National Inquirer Inc., 854 F.2d 1191 (9th Cir. 1978).

59

In sum, in assessing personal jurisdiction, the focus is on “the relationship among the defendant, the forum and the litigation.” Shaffer v. Heitner., 433 U.S. 186, 204 (1977). This analysis most often examines three elements, namely (1) that the nonresident defendant purposefully directs its activities toward the forum or its residents; (2) the claim must be one which arises out of or relates to the defendant’s forum related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Haisten, 784 F.2d at 1397. See also Burger King 471 U.S. at 472‑76.

60

As we have seen, the Defendants have purposefully availed themselves of the forum by advertising and selling other of their alcoholic and non‑alcoholic beverages in South Dakota and on the Rosebud Sioux Reservation, by placing at least one telephone call to and sending one packet of allegedly defamatory material to the Plaintiff or his attorney on the Rosebud Sioux Reservation, and continually targeting the forum through each label affixed to a bottle of “Original Crazy Horse Malt Liquor” even after being informed by more than one non‑party source of its offensiveness within the forum and elsewhere on Reservations in South Dakota.[39]

61

Jurisdiction, of course, may not be avoided by a lack of physical contact with the forum state or reservation. This is the central holding of both the Burger King and Calder cases. Nevertheless, a defendant may not be haled into a jurisdiction as the result of random, fortuitous, or attenuated contacts. Burger King, 471 U.S. at 479. In the instant case, none of the Defendants’ conduct has been random or fortuitous or accidental. The contact is systematic and ongoing. It was clearly both proximate and foreseeable that Defendants would be haled into court on the Rosebud Sioux Reservation. Plaintiff’s claim grows directly out of defendants’ activities involved in the advertisement, marketing, and sale of both its offending and non‑offending products.[40] It is significant to emphasize here that the alleged actions of the Defendants do not involve seeking to market a physically defective product — the classic products liability situation, — within the forum, but rather a situation where Defendants are alleged to be intentionally causing harm to the personal or property (e.g. ‘right of publicity’) interests at the Plaintiff’s place of residence and domicile as the result of the manufacturing, sale, and/or marketing of the “Original Crazy Horse Malt Liquor.”

62

Finally, the exercise of a forum’s jurisdiction must be reasonable and comport with fair play and justice. The burden on the Defendants to litigate in the tribal forum is minimal. They are all national corporations engaged in extensive interstate commerce. The scope of Defendants’ resources and the nature of modern transportation and communication make any ensuing burdens in defending this lawsuit slight. The reservation forum is likely to be most convenient for all parties, while it would be correspondingly difficult both economically and geographically for the Plaintiff to file his lawsuit in another forum far away from the reservation.

63

The local forum is also best situated to provide convenient and effective relief for the Plaintiff Estate should it prevail at a trial on the merits. This is particularly significant in light of the fact that some of the causes of action asserted by the Plaintiff involve questions of tribal custom and tribal common law that, as questions of first impression, will not be readily discerned or easily answered in a state or federal forum at a substantial cultural and geographical remove from the reservation forum. The reservation forum is also the most efficient forum for this lawsuit because it has already dealt with the issue of jurisdiction (which is likely to arise in any forum) and because of its expertise in evaluating claims grounded in whole or in part in tradition, custom and/or tribal common law. This is especially true in light of Justice Marshal’s statement that, “[t]ribal courts play a vital role in tribal self‑government. . . and the Federal government has consistently encouraged their development.”[41] Such support is particularly appropriate in this instance where the tribal court is uniquely capable to “provide other courts with the benefit of their expertise in such matters in the event of further judicial review.” National Farmers Union, 471 U.S. at 856 (1985). Finally, the tribal forum has a well justified interest in the lawsuit as it alleges extensive and pervasive (tortious) harm that has accrued on the reservation against one of its residents.

64

3. Subject Matter Jurisdiction.

65

The trial court also rested part of its decision to dismiss on its analysis of Montana v. United States, 450 U.S. 544 (1981). Slip Op. at 14‑16. The trial court made no distinction in its opinion between personal and subject matter jurisdiction and the fact that Montana is a case about subject matter — not personal — jurisdiction. The trial court, despite observing that Montana was a case involving tribal jurisdiction over activities taking place on fee lands within the reservation applied it to events that did not take place on fee lands and also, made a rather cursory and quite flawed analysis about the applicability of the two prongs of the Montana proviso.[42] It concluded “that Montana and its protege [sic] does [sic] not grant jurisdiction to the Tribal court under the existing factual scenario.” Slip op. at 16. This conclusion is flat wrong.

66

It is the opinion of this Court that Montana is inapplicable to the case at bar and even if it was, subject matter jurisdiction may properly be found under both of the Montana exceptions. Since Montana is often a key case employed both by tribal courts and reviewing federal courts when assessing the legitimate ambit of tribal court jurisdiction,[43] some review of that case — what it is and is not about — is in order.

67

a) Montana v. United States.

68

Montana v. United States is not a case — despite apparent conceptions to the contrary in some quarters — in which the Supreme Court assessed tribal court subject matter jurisdiction as a matter of either constitutional principles or federal common law. It is rather a case about statutory construction. In Montana, the Court assessed the jurisdictional implications of the creation of fee land within the Crow Reservation as a result of the General Allotment Act and the Crow Allotment Act. The Court found that Congressional authorization to alienate tribal lands had the necessary effect of limiting tribal sovereignty with regard to non-Indian activity on those fee lands. Montana at 1255-56.[44]

69

Therefore in the absence of a specific Congressional enactment, judicial decisions interpreting the reach of tribal court jurisdiction are properly constrained. See e.g. United States ex rel. Morongo Band of Mission Indians v. Rose, 24 F.3d 901, 906 (9th Cir. 1994) (Montana exceptions are “relevant only after the court concludes there has been a general divestiture of tribal authority over non-Indians by alienation of the land.”)[45] More broadly, the Supreme Court has noted, “[c]ivil jurisdiction over such activities presumptuously lies in the tribal courts unless affirmatively limited by specific treaty provision or federal statute.” Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9, 18 (1987).[46]

70

Therefore the Montana decision is specifically limited to fee lands. To extend Montana to non‑fee land and beyond the federal statutes involved in that case is to engage in judicial law making plain and simple. Federal authority in Indian law is primarily congressional and not judicial in nature. Courts — including federal reviewing courts — therefore need to hue to the proper limits of their authority.

71

In fact, this is exactly what the Montana Court itself did. When the Court turned its attention from tribal regulation of non‑Indian activity on fee land to regulating the same conduct on tribal (and individual Indian) land, it did not examine that conduct through the Montana proviso, but rather summarily observed “The Court of Appeals held that the Tribe may prohibit nonmembers from hunting or fishing on land belonging to the tribe or held by the United States in must for the tribe and with this holding we can readily agree.” Montana at 1254. If the Montana court itself did not apply the Montana proviso analysis to non‑fee land, tribal and lower federal courts ought not.[47]

72

In the case at bar, the harm clearly occurs on individual and tribal trust land within the Rosebud Sioux Reservation and therefore Montana analysis is inappropriate. Neither of the parties contends that there is any other relevant federal statute that potentially bars the tribal court from asserting subject matter jurisdiction.

73

It is also pertinent to note that Montana-like analysis is properly limited to questions of tribal regulatory and legislative authority and not tribal court adjudicatory authority. The underlying question in Montana was whether the Crow Tribe could regulate (or legislate) concealing the right of non‑Indians to hunt and fish on non-Indian fee land within the reservation. The Court answered that the Crow tribe could not. The Court did not in any way indicate that the tribal court would not be an appropriate forum to adjudicate a hunting issue that came up on the Reservation.

74

The Montana Court did not make the legislative‑adjudicatory distinction. Yet it is this implicit distinction that best explains the Supreme Court’s subsequent decision in National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985). In that case, the Supreme Court held that the tribal court did have adjudicatory jurisdiction in the first instance to hear a civil dispute, namely a tortious claim asserted by an Indian student against a non‑Indian school district resulting from a motorcycle accident that occurred on fee land owned and occupied by a state public school. The Court applied no Montana analysis. This would seem difficult to fathom but for the fact the case involved tribal judicial rather than legislative authority.[48] Since the case at bar involves the question of whether a tribal judicial forum is available to hear a tort case just like the issue in National Farmers Union and not whether the tribe can regulate or legislate non‑Indian conduct on fee land which was the issue in Montana, National Farmers Union’s reasoning is more persuasive and provides yet another reason why Montana is inapplicable here.[49]

75

b) The Montana “Proviso”.

76

Even if Montana were to apply in this case, both prongs of the famous ‘proviso’ are satisfied. In Montana, the Court stated that despite the presumption against tribal (regulatory) authority over non‑Indians on fee land, there might nevertheless be tribal authority:

77

To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non‑Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of non-members who enter consensual relationships with the tribe or its members, though commercial dealing, contracts, leases or other arrangements. [E.g.,] William v. Lee, 358 U.S. 217, 223. A tribe may also retain inherent power to exercise civil authority over the conduct of non‑Indians on fee land within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Montana at 1258.

78

Again, for purposes of emphasis, as discussed above, note the Court’s use of the word ‘regulate’ rather than the word ‘adjudicate’.

79

The Plaintiff/Administrator in this case alleges, among other things, that Defendants misappropriated the likeness of ‘Crazy Horse’ for their own commercial gain. It is significant to note in this regard that the trial court specifically recognized a “right of publicity” in the Plaintiff Estate. Slip. Op. at 11. In other words, the Defendants failed to enter into a ‘consensual relationship’ with the Plaintiff for the use of the name and reputation of ‘Crazy Horse.’ This case is thus about, at least in part, the failure (caused by the Defendants) to have a consensual agreement. It therefore would seem an odd twist to say that Defendants’ failure to enter into a consensual agreement which gives rise to the cause of action in the first instance could be used to defeat the Court’s subject matter jurisdiction. Such reasoning would constitute the most arid and formalism and insofar as the trial court so reasoned, it is hereby rejected.

80

Similarly, the trial court — without any analysis that this Court can discern — concluded that the second prong of the proviso was not satisfied. Slip Op. at 16. This unsupported conclusion is incorrect. The ability of the Rosebud Sioux Tribe to protect the ‘health and welfare of the tribe’ is directly implicated in this case. It is a touchstone of tribal ‘health and welfare’ to be able to provide a forum for the resolution of alleged harms suffered by tribal members (or any person) on the reservation. This is particularly, even glaringly, true in the context of allegations of the tortious interference with, and the misappropriation of, the image and reputation of a venerated cultural hero and political and spiritual leader. If the tribe cannot successfully provide a forum in this dispute of wideranging individual and collective tribal import, Montana will have indeed run over its fee‑lined banks and inundated the tribal jurisdictional landscape far beyond that which is justifiable. Confident that Montana was not so intended, we find the second prong of the process fully satisfied. And we repeat a cautionary refrain noted at the outset: this appeal and the current posture of this case are about jurisdiction — personal and subject matter — and the availability of a tribal forum. We are not concerned at this juncture about the substantive merit of Plaintiff’s claims or his likelihood to prevail at trial.

81

c) A-I Contractors v. Strate.[50]

82

The Court also feels that it is necessary to make some observations about the en banc decision of the Eighth Circuit in A-I Contractors. A-I Contractors involved a non‑Indian versus a non-Indian lawsuit resulting from a car/truck accident that took place on non‑fee land on the Fort Berthold Reservation in North Dakota. In the original panel decision,[51] the court held (2 to 1) that there was tribal court jurisdiction. The recent en banc decision vacated the prior decision and reversed holding Montana analysis applicable even to disputes arising on non‑fee land within the reservation and further found that neither prong of the Montana proviso was satisfied.[52]

83

As much of this Court’s discussion suggests, Montana analysis is inappropriate in this case. And even if it is, both prongs of the proviso are satisfied. However, very little, if any, of this Court’s reasoning and analysis appears in the en banc opinion of the Eighth Circuit and we are confident that if it did, that Court’s decision would have been otherwise. Regardless of this speculation, this case is clearly distinguishable from A-I Contractors. This case does not involve only non‑Indian parties, but instead involves an Indian party seeking to vindicate personal and cultural injuries that clearly transcend the mere physical harm any `garden variety’ car accident might occasion. The Eighth circuit’s wide solicitude when only non‑Indian parties are involved and its correspondingly quite attenuated understanding of apposite tribal interests in such circumstances are simply not applicable in the case at bar.

84

C. Jurisdiction Pursuant to Federal Statutes.

85

The Plaintiff Estate has also asserted federal causes of action under the Indian Arts and Crafts Act, 25 U.S.C. § 305 et seq. (1994) and the Lanham Act, 15 U.S.C. § 1125(a) (1994). Neither of these statutes limit their jurisdiction to the federal courts. Nor is there any limitation in tribal law to preclude tribal court jurisdiction as a matter of local law. The parties do not contend otherwise. In other words, there are no jurisdictional bars to the assertion of these federal statutory causes of action in tribal court.

86

The defenses raised by the Defendants to these two federal claims are matters of statutory interpretation as to the necessary elements that make up each cause of action. Each federal statutory claim will be treated in turn.

87

1. Indian Arts and Craft Act.

88

The Indian Arts and Crafts Act was enacted to “protect Indian artists from unfair competition from counterfeiters.”[53] The purpose of the Indian Arts and Crafts Act is not at issue in this case. What is at issue is whether an individual Indian has standing to initiate a lawsuit under the statute. The Defendants claim that the Plaintiff Estate lacks standing to bring a claim under the Indian Arts and Crafts Act. This argument is drawn from a plain meaning of the relevant statutory language and the supporting legislative history. Specifically, Defendants point to 25 U.S.C. § 305(e)(c)(1)[54] as a bar. Defendants allege that the structure of this section provides standing as follows: “A) by the Attorney General of the United States . . . on behalf of an Indian who is a member of an Indian Tribe or on behalf of an Indian tribe or Indian arts and crafts organization;” or “B) by an Indian tribe on behalf of itself, an Indian who is a member of the tribe, or on behalf of an Indian arts and crafts organization.”

89

Each of these sections permits lawsuits to be filed by representative parties. In A, the Attorney General is the representative party and in B, an Indian tribe is the representative party. In both A and B, the representative body may bring a lawsuit “on a behalf of an Indian” (A) or “on behalf of itself, an Indian who is a member of the tribe.” There is no additional section that allows an Indian to bring a lawsuit in his or her own behalf. This reading is particularly reasonable in that B speaks of “an Indian who is a member of the tribe” (emphasis added) which clearly refers back to “an Indian tribe” as the representative party. Without this reading, the word the actually would be inappropriate and incorrectly used. We are not persuaded that it has been improperly used, but rather that it harmonizes with the structure of the standing provisions. There is no ambiguity to be resolved in Plaintiff’s favor. In addition, as noted in the court’s opinion, a contrary reading would not be consistent with the legislative history of the Act. Slip. Op. at 19. Finally, the Plaintiff has indicated no case law suggesting a different result.

90

2. Lanham Act.

91

The Plaintiff also alleges a cause of action against the Defendants based on the Lanham Act. Specifically, Plaintiff claims that the label affixed to each bottle of “The Original Crazy Horse Malt Liquor” constitutes false advertising and false association in violation of § 43(a) of the Act as set forth at 15 U.S.C. § 1125(a). The definitions in the Lanham Act are to be construed broadly. Smith v. Montoro, 648 F.2d 602, 607 (9th Cir. 1981).

92

The trial court specifically recognized the Plaintiff’s “right of publicity” in the name ‘Crazy Horse’. Slip. Op. at 11. Recognition of this right, with which we agree, clearly entails the potentiality of that right being infringed by the ‘false advertising’ or ‘false association’ of the Defendants. At this stage, the Plaintiff Estate has asserted that the actions of the Defendants involve both ‘false advertising’ and ‘false association’ relative not only to “Crazy Horse” himself but also personal and tribal beadwork patterns or designs and sacred symbols. Amended complaint at 15‑16. All of these items are potentially subject to commercial and non‑commercial exploitation and loss. That is something to be developed at the trial on the merits. Neither side has cited to, or discussed, case law in the context of a motion to dismiss based on lack of standing under the Lanham Act. The Plaintiff has asserted, without contradiction, enough to survive a motion to dismiss. The standing issue may, of course, be revisited at trial.

93

IV. Conclusion.

94

For all of the above stated reasons, the decision of the trial court is hereby reversed in part, affirmed in part, and remanded for prompt trial on the merits. Specifically, the trial court’s findings as to personal and subject matter jurisdiction are reversed, as is its dismissal of the Lanham Act claim. The trial courts dismissal of the Indian Arts Crafts Act claim is affirmed.

95

HO HE’CETU YE LO.

96

IT IS SO ORDERED

97

Dated May 1, 1996

98

/s Leroy Greaves (Chief Justice), Patrick Lee, Frank Pommersheim, Ramon Roubideaux, Michael Swallow, Diane Zephier (Associate Justices)

99


[1] Justice Swallow was unable to attend the oral argument due to inclement weather. As noted on the record at oral argument, Justice Swallow would (and did) participate in the deliberations of the Court after listening to an audio tape of the proceedings.

[2] The Great Sioux Nation Reservation was created as part of the Fort Laramie Treaty of 1868. See Art. 2, 15 Stat. 635 (1986) and its original boundaries included all of present day western South Dakota and parts of the surrounding states of Nebraska, Wyoming, and Montana. Of course, no western states existed in 1868 and the area was generally referred to by non-Indians and the Federal government as the Dakota Territory.

It is worth noting that neither the Fort Laramie Treaty of 1868 nor the Great Sioux Agreement of 1889 purport in anyway to divest the Rosebud Sioux Tribe of its sovereignty, much less the civil adjudicatory authority at issue in this case. On the importance of protecting treaty-based sovereignty, see e.g. Phillip P. Frickey, “Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law,” 107 Harv. L. Rev. 381 (1993).

[3] The Rosebud Sioux Reservation was one of the six individual reservations created from the Great Sioux Nation Reservation as part of the Great Sioux Agreement of 1889. See Sec. 2, 25 Stat. 888 (1889).

[4] See Affidavit of Plaintiff/Administrator Seth H. Big Crow Sr. (August 24, 1993) at paragraph 2. Specifically, “Crazy Horse basically led the fight to protect the Lakota people, their lands and culture from the avarice, alcohol, and disease which invaded the Great Sioux Nation.”

[5] Specifically:

“12. That the front of the bottle bears a painted, black and white depiction of the profile of an Indian man facing left, wearing what is presumably an eagle feather bonnet.

13. That this malt liquor alcohol beverage is distributed for sale in a 40 oz. (1.18 liter) clear glass, antique whiskey-styled bottle bearing the following text on the front label, in black and white heat-treated paint:

The Original CRAZY HORSE Malt Liquor (TM)

SINCE MCMXCII

DAKOTA HILLS LTD. (TM)

This is the ultimate in Handcrafted

Malt Liquor. Crazy Horse is brewed with 100%

of the finest Malt Barley and Hops.

Fine Blend Lat No. 0690711

Forty Ounces

1 QT. 8 FL. OZS. 1.18 LITER

PRODUCT OF AMERICA

14. That along with an image of furtrapper or mountain man, dressed in buckskin and furs, and holding a rifle, and with what is made to appear to be several beadwork designs of a presumably Northern Plains Indian motif, including symbols such as that of a “medicine wheel” deemed sacred in Lakota culture, the following text is printed on the back of the clear glass, whiskey-styled bottle, in white heat-treated paint:

CRAZY

HORSE (TM)

The Black Hills of Dakota, steeped in the history of

the American West, home of Proud Indian Nations.

A land where imagination conjures up images of blue clad

Pony Soldiers and magnificent Native American Warriors,

A land still rutted with wagon tracks of intrepid pioneers.

A land where wailful winds whisper of Sitting Bull,

Crazy Horse and Custer.

A land of character, of bravery, of tradition.

A land that truly speaks of the spirit that is America.

Government Warning: (1) According to the Surgeon General women should not drink alcoholic beverages during pregnancy because of the risk of birth defects. (2) Consumption of alcoholic beverages impairs your ability to drive a car or to operate machinery, and may cause health problems.

HORNELL BREWING CO., BALTIMORE, MARYLAND

15. That said forty (40) ounce bottles are distributed in twelve (12) bottle cases which also bear the distinctive markings proclaiming the name and purported image of Crazy Horse, symbolic designs, and the text The Original Crazy Horse Malt Liquor, CRAZY HORSE Handcrafted Malt Liquor and Dakota Hills Ltd. against a background of numerous irregular, rounded black patches on a white field, suggesting perhaps, a pinto horsehide.”

Id., at paragraphs 12-15.

[6] Id., at paragraphs 8 and 9.

[7] See Affidavit of Plaintiff/Administrator Seth H. Big Crow (June 27, 1994) at paragraph 5. See also Appellant’s brief at 8.

[8] See Affidavit of Plaintiff/Administrator Seth H. Big Crow, supra note 4, at paragraphs 21 and 22. See also Appellant’s brief at 8.

[9] 104 Stat. 4662 (1990), 25 U.S.C. §305 as amended (1994).

[10] Sec. 43(a), 15 U.S.C. § 1125(a) (1994).

[11] Rule 12(b), Rosebud Sioux Tribe Rules of Civil Procedure, provides in relevant part:

“(b) Every defense to a claim for relief in any pleading whether a Complaint, Counterclaim, Crossclaim, or Third Party Claim shall be asserted in the responsive pleading if one is required, except that the following defenses may at the option of the pleader be made prior to the filing of a responsive pleading by motion, namely, lack of jurisdiction over the subject matter, lack of jurisdiction over the person, insufficiency of process, insufficiency of service of process, failure to state a claim upon which relief may be granted, failure to join a party under Rule 19.”

[12] Defendants did not apparently file an answer separate and apart from their motion to dismiss.

[13] Rule 20, Rules of Procedure, Rosebud Sioux Tribal Court of Appeals provides:

(a) When Hearing or Rehearing en Banc will be ordered. A majority of the Rosebud Sioux Appellate Justices who are in regular active service may order that an appeal or other proceeding be heard or reheard by the Court of Appeals en banc. Such a hearing or rehearing is not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance.

[14] Amicus briefs of Professors Nell Jessup Newton and Joseph William Singer and Professors Oliver R. Goodenough and Nathan Bruce Duthu. Id. at Rule 21.

[15] The oral argument and briefs of counsel for both sides were of the highest order and they are commended for their outstanding professional work provided to this Court.

[16] This is a question of first impression for this Court and it adopts the prevailing de novo federal standard as both fair and reasonable. Neither of the parties contend otherwise.

[17] Lake at 1420.

[18] It does not appear that this issue was raised (it is not mentioned anywhere in the trial court’s memorandum opinion) below and normally it could not be raised for the first time on appeal. However, jurisdictional issues are never waived and may be raised for the first time on appeal. See e.g. Deno v. Oveson, 307 N.W.2d 862 (S.D. 1981).

[19] Art. II, Rosebud Sioux Tribe Constitution (1935).

[20] See e.g. Montana v. United States, 450 U.S. 544 (1981), discussed infra at pp. 27-­35. Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation 492 U.S. 408 (1989), and South Dakota v. Bourland, 113 S. Ct. 2309 (1993). All of these cases involved federal statutes creating fee land on the reservation. There is neither a relevant federal statute nor fee land on the reservation involved in this case.

[21] Rosebud Sioux Tribe Law and Order Code § 4‑2‑7 (1989) provides:

4‑2‑7. Personal Service off of Reservation ‑ Acts Submitting Non‑resident Persons to Jurisdiction of Court.

A.To the greatest extent consistent with due process of law, any person, whether or not a

citizen, resident, or present on the Reservation, who in person or through an agent does any of the acts as enumerated in this Section, thereby submits said person or his personal representative to the jurisdiction of the Tribal Court as to any cause of action arising from doing any of the following acts within the Rosebud Indian reservation:

1.The transaction of any business;

2.The commission of a tortious act;

3.The ownership, use or possession of any property, real or personal;

4.Contracting to insure any person, property or risk;

5.The act of sexual intercourse within this Reservation;

6.Living in a marital relationship, notwithstanding the subsequent departure from this

reservation, as to any action for divorce or separate maintenance so long as the petitioning party has continued to reside within the Reservation.

B.Only causes of action arising from acts enumerated herein may be asserted against a

defendant in an action in which jurisdiction over him is based upon this Section.

Rosebud Sioux Tribal Ordinance 88‑14, Civil Amendments of 1988.

[22] See additional discussion infra at pp. 14‑27.

[23] See supra note 17 and discussion at pp. 8‑9.

[24] Id. This too is an issue of first impression with this Court and the general federal standard is adopted as fair and reasonable.

[25] See Affidavit of Plaintiff/Administrator Seth H. Big Crow, supra note 4 at paragraphs 8‑9.

[26] See Affidavit of Plaintiff/Administrator Seth H. Big Crow, supra note 7 at paragraph 5. See also Appellant’s brief at 8.

[27] See Affidavit of Plaintiff/Administrator Seth H. Big Crow, supra note 4 at paragraph 26 and supra note 7 at paragraph 1C. See also Appellant’s brief at p. 10.

[28] See supra note 5, at pp. 3-4.

[29] Amendment V, United States Constitution (1791).

[30] Amendment XIV, United States Constitution (1868).

[31] 25 U.S.C. § 1302 (8)(1994).

[32] Art. X, Sec. 3, Rosebud Sioux Tribe Constitution (1966).

[33] See e.g. Thorstenson v. Cudmore, 18 I.L.R. 6051 (1991); Bloomberg v. Dreamer (Oglala Supreme Court Civ. App. 90-348 (1991).

[34] Rosebud Sioux Law and Order Code 4‑2‑7 (1989), supra note 21 at p. 12.

This is clearly in line with the modern trend. See for example the Restatement of Conflicts 2d (1971) § 37, which states in relevant part:

“A state has power to exercise judicial jurisdiction over an individual who causes effects in the state by an act done elsewhere with respect to any cause of action arising from these effects unless the nature of the effects and of the individual’s relationship to the state make the exercise of such jurisdiction unreasonable. Id, at 156.

Additionally the Restatement advises that the usual interpretation of the phrase “commission of a tortious act within the state” is broad enough to “cover injuries within by acts from without a state”:

Many states have enacted statutes which authorize the exercise of judicial jurisdiction under the circumstances stated in the rule. The prototypical statute is that of Illinois ... which, although it speaks only of “commission of a tortious act within this state,” has been interpreted to confer jurisdiction on the Illinois courts in situations where a tortious act outside the State causes injury within the State. ... States which adopted the Illinois language ... have generally followed the Illinois interpretation. (Id. at p. 160).

[35] Helicopteros Nacionales de Columbia v. Hall, 466 U.S. 408, 413 (n. 7) (1984). See also Duncan Energy v. Three Affiliated Tribes, 27 F.3d 1294 (8th Cir. 1994) and City of Timber Lake v. Cheyenne River Sioux Tribe, 10 F.3d 554 (8th Cir. 1993) in the context of federal court deference to tribal court determinations of tribal law. In addition, note specifically, the following: “The Tribal Court’s interpretation of tribal law is binding on this court. “ Hinshaw v. Mahler, 42 F.3d 1178, 1179 (9th Cir. 1994).

[36] Supra notes 25-28, at pp. 14-15.

[37] Specifically, for example, see these statements of Defendants:

“A socially‑sensitive corporate citizen, Hornell is responsive to some, responsible Native American objections to marketing of the brand, that is, the deeply‑held personal beliefs voiced by the Native Americans in States directly connected with the exploits of the man called Crazy Horse” (SD, ND, MN, NE, and MT). (Plaintiffs’ Exhibit E-1).

“`We’ve said repeatedly’, Ferolito continued, `that we never intended an insult to Native Americans and we proved it by deliberately not marketing the brand in 14 States with large reservation [sic] and urban Indian communities. However, once we became aware of the concerns articulated by Mr. Her Many Horses, we realized that even though we had done everything according to the rules and regulations we had a responsibility to be sensitive to the feeling and the history of the Ogallala [sic] Sioux.’” (Plaintiffs Exhibit G). See also Appellant’s brief at 22.

See also the following chronology:

(i) March 1992 ‑ Hornell introduced Crazy Horse Malt Liquor in 14 states.

(ii) April 22, 1992 ‑ US Surgeon General Antonia Novello accused defendant Hornell of “insensitive and malicious marketing.”

(iii) April 20, 1992 ‑ South Dakota senator Larry Pressler sent a letter to Hornell warning Hornell about its product and that the “defamation of this hero [Crazy Horse] is an insult to Indian culture.”

(iv) April 27, 1992 ‑ Senator Tom Daschle wrote a similar letter to Hornell, expressing his displeasure.

(v) May 1992 - Representative Pat Schroeder called a hearing to consider legislation to prohibit

the use of the name Crazy Horse on alcoholic beverages.

(vi) July 1992 ‑ House passed a bill to approve the ban of the use of the name Crazy Horse on any alcoholic beverages.

(vii) July 1992 - Instead of adopting House bill, Senate passed a resolution directing Hornell to meet with Sioux leaders and enter into a binding agreement abandoning the name Crazy Horse for its Malt Liquor.

(viii)Subsequently, Hornell officials met with Sioux leaders. Because those leaders insisted on a general ban of Indian names and symbols, Hornell broke off negotiations. Hornell public relations firm issued Backgrounder: The Oglala Sioux Tribe vs. “The Original Crazy Horse Malt Liquor” press release, with a caption forshadowing the present lawsuit.

(ix) September 1992, Senate introduced legislation to ban the use of the name Crazy Horse

on alcoholic beverages. Senator Adarns rebuked Hornell for being “insensitive and disrespectful” to the Sioux’s request to discontinue use of the name Crazy Horse.

(x) October 1992 ‑ P.L. 102‑393. Statute to ban use of the name Crazy Horse was enacted and subsequently signed by President Bush.

(xi) November 1992 ‑ Telephone and mail contact with Estate’s attorney regarding rights to name

and descendant opposition to label. (Big Crow Affidavit, June 27, 1994. Paras. 1 A. and B.)

(xii) March 1993 - Letter from Estate to cease and desist. (Big Crow Affidavit, April 1, 1994, Paras. 27 and 28.)

(xiii)April 1993 ‑ First refusal of federal trademark application for labels by U.S. Patent and Trademark Office, citing unlawful use violation of Act of October 6, 1992, 102-­393, and “because the mark consists of or comprises matter which may disparage or bring into contempt or disrepute Native Americans. Application Number 74/335913. In the Public Record of the U.S. PTO, Washington, D.C. (A second attempt under Application Number 74/606385 was also refused by the U.S. PTO by letter sent in July, 1995, again on the grounds of Section 2(a)‑Disparagement, “because the mark consists of or comprises matter which may disparage or bring into contempt or disrepute the renowned Oglala Sioux chief, warrior, and spiritual leader, Crazy Horse.” In the Public Record of the U.S. PTO, Washington, D.C.)

(xiv) July 1993 ‑ Initial refusal of label approval/brand registration by Washington State Liquor Control Board. (Public Record)

Appellant’s brief at 23‑24. See also these events (I-X) enumerated in Hornell Brewing Co., Inc. v. Brady, 819 F. Supp. 1227 (E.D.N.Y. 1993).

[38] See Rosebud Sioux Tribe Along arm statute, §4-2-7, supra note 21, at p. 12 that provides in relevant part: ...

2. The commission of a tortious act;

[39] See supra note 37 at pp. 22‑23. See also the chronological documentation set forth in Hornell Brewing Co., Inc. v. Brady, 819 F. Supp. 1227 (E.D.N.Y. 1993).

[40] See supra at pp. 19-23.

[41] Iowa Mutual Insurance Company v. LaPlante, 480 U.S. 9, 14-15 (1987).

[42] The proviso provides:

“To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non‑Indians on their reservation, even on non‑Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts leases, or other arrangements. [E.g.,] Williams v. Lee, 358 U.S. 217, 233. A tribe may also retain inherent power to exercise civil authority over the conduct of non‑Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Montana at 1258.

[43] See e.g. Duncan Energy v. Three Affiliated Tribes, 27 F.3d 1294 (8th Cir. 1994); Stock West Corp. v. Taylor, 964 F.2d 912 (9th Cir. 1990).

[44] This interpretation itself seems a bit off the mark. The General Allotment Act and Crow Allotment Act do not purport to adjust tribal sovereignty or jurisdiction but rather to create property rights (and therefore certain protectible `reliance interests’) in non-Indians settling on the reservation, the result of which might be to insulate non-Indians in some cases from the reach of tribal jurisdiction. That is, the resulting (potential) limits on tribal jurisdiction are a collateral effect rather then the primary purpose of allotment legislation.

[45] See also contra, A-I Contractors v. Strate, 1996 W.L. 65742 (8th Cir.) discussed infra at pp. 35-36.

[46] The United States Supreme Court has had no post-Montana opportunity to go beyond its reasoning in Montana. Brendale v. Confederated Tribes and Bands of the Yakima Nation, 492 U.S. 408 (1989) involved construction of the same provisions of the General Allotment Act and South Dakota v. Bourland, 113 S. Ct. 2309 (1993) involved construction of the federal Flood Control Act.

[47] See also United States v. Wheeler 435 U.S. 313, 322 (1978) (Indian Tribes possess “`inherent powers of a limited sovereignty which have never been extinguished’”).

[48] See also A-I Contractors v. Strate, supra note 45 to the contrary and discussed infra at pp. 35-36.

[49] Similar analysis is found in Iowa Mutual Ins. v. LaPlante, 480 U.S. 9, 18 (1987) (“[t]ribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty.”)

[50] 1996 W.L. 65742 (8th Cir. en banc). This case was decided after the briefs were submitted in this case though counsel for both sides made reference to it at oral argument.

[51] 1994 W.L. 666051 (8th Cir. 1994)

[52] A-I Contractors at pp. 14‑15. A contrary decision on similar facts was reached in the Ninth Circuit. Hinshaw v. Mahler, 42 F. 3d 1178 (9th Cir. 1994).

[53] H.R Rep. Nos. 400 (I & II), 101 St. Cong. 2d Sess. (1990), 1990 U.S.C.C.A.N. 6382, 6391.

[54] Section 305(e)(c)(1) provides:

(c) Persons who may initiate civil actions

(1) civil action under subsection (a) of this section may be commenced‑-

(A)by the Attorney General of the United States upon request of the Secretary of the Interior on behalf of an Indian who is a member of an Indian tribe or on behalf of an Indian tribe or Indian arts and crafts organization; or

(B)by an Indian tribe on behalf of itself, an Indian who is a member of the tribe, or on behalf of an Indian arts and crafts organization.

25 U.S.C. § 305(e)(c)(1) (1994).

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Annotated Case Information

June 02, 2014

"In re Estate of Tasunke Witko, a.k.a. Crazy Horse v. The G. Heileman Brewing Co."

In re Estate of Tasunke Witko, a.k.a. Crazy Horse v. The G. Heileman Brewing Co.

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