Text of decision on jurisdiction in malt liquor case.

The following is by and from,
Bob Gough, Stu Kaler and Jonny BearCub Stiffarm,
Attorneys for the Estate of Tasunke Witko.
Email: Rpwgough@aol.com

There have been numerous requests for the posting of the Rosebud Sioux Tribe Supreme Court’s memorandum decision in the matter of the Estate of Tasunke Witko (Crazy Horse) vs. G. Heileman and Hornell Brewing companies and Ferolito, Vultaggio & Sons (who also make “AriZona Iced Tea”), so please find the text of the decision attached in ASCII format.

As we have indicated earlier, the RST Supreme Ct ordered a “prompt trial on the merits” on June 15, 1996. On June 26, the Rosebud Sioux Tribe petitioned to join the lawsuit on behalf of the Estate with regard to the claims brought under the Indian Arts and Crafts Act (“…the ultimate in handcrafted malt liquor…”)

On July 22, the brewers filed in federal court for judicial review and an injunction on the Tribal Court, the judge, and the Estate from proceeding in Tribal Court. On August 1, the brewers filed a motion to stay in Tribal Court, citing the alleged “mandate” in National Farmers. On October 9, the Tribal Court granted the tribe’s motion for joinder and denied the stay. The only mandate on the table is that of the RST SupCt. for a “prompt trial on the merits”. The Estate has also filed a motion for summary judgment on the Estate’s rights of publicity under tribal law. Briefs are in the works, with a hearing to be set within 30 days.

We have been honored to serve the Estate and Spirit of Crazy Horse in ways that support the development of tribal courts and Indian law in the protection of the cultural, property and personal rights of Indian people, and have appreciated the interest and support from all those willing to stand with Crazy Horse to the defense of Indian rights.

Much is yet to be done and the battle has become more costly given the additional federal court action and the recent MN Court of Appeals decision requiring either an appeal or new legislation. Contributions in support of these efforts can be made to the Crazy Horse Defense Project (715/425-0004)


Bob, Stu and Jonny



* * * * * * * * * * * * * * * * * * * * * * * *
In the Matter of the Estate
of Tasunke Witko, a.k.a. Crazy Horse,
#Civ. 93-204

Seth H. Big Crow, Sr., as Administrator*
of said Estate, and as a member and*
Memorandum representative of the class of heirs*
of said Estate, Opinion Plaintiff/Appellant

vs. and

The G. Heileman Brewing Co., The G..*
Order Heileman Brewing Co.,
d/b/a Hornell Brewing Co.; and Messrs.*
John Ferolito and Don Vultaggio,*
individually and d/b/a/ Ferolito,*
Vultaggio and Sons, *

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

I. Introduction.

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 which
included the present day Rosebud Sioux Reservation. Tasunke Witko was a
person of great moral character who steadfastly opposed the use and abuse
of alcohol products by his people.

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
Administrati on in the Rosebud Sioux Tribal Court and was subsequently
named as the Administrator of Tasunke Witko’s estate on April 12, 1993.

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.” 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 Defendan ts/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 suc has “Old Style,” “Schmidt,” and “Special Export”
are advertised and offered for sale in South Dakota and on the Rosebud
Sioux Reservation. 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.

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.

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, and violation of
the Lanham Act. These claims were asserted – where applicable – under
both tribal and federal law.

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. 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.

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. Two amicus briefs were properly filed with this Court. On
March 29, 1996, oral argument was heard before the en banc Court sitting at
the University of South Dakota School of Law in Vermillion, South Dakota.

II. Issues.

This appeal raises three significant – and occasionally overlapping –
issues namely;

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

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

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.

III. Discussion.

Each issue will be discussed in turn.

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

The proper standard of review on questions of law concerning
jurisdiction is de novo. 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).

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:

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 Assocs., 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 1285.

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.

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).

B. Jurisdiction.

1. Territorial Jurisdiction.

The Defendants/Appellees contend that the tribal court’s jurisdiction
is territorial 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.

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,” 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. 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.

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=15 4-2-7 indicates the Tribe’s clear intent,
consistent with notions of due process, to assert jurisdiction over
non-residents who, for example, commit tortious acts that have effects
within the reservation.

2. Personal Jurisdiction.

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.

a) Motion to Dismiss Standard.

As noted above, 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 Plaintiff’s favor. 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.

b) Relevant Facts.

The Plaintiff made numerous factual assertions in its complaint(s),
affidavits, and exhibits that were not controverted by Defendants 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” 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” 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, and that the
Defendants’ advertising label on each bottle of “Original Crazy Horse Malt
Liquor” 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.

c) “Minimum Contacts” Due Process Analysis.

Due process exists as an individual guarantee against the federal
government pursuant to the Fifth Amendment, against state governments
pursuant to the Fourteenth Amendment, and against tribal governments
pursuant to the Indian Civil Rights Act of 1968 and any tribal
constitutional guarantee. 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 that traditional Lakota notions of due
process that provide everyone the opportunity to be heard before making a
decision are met in this case, 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.

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.
Helicopteros Nacionales de Columbia v. Hall, 466 U.S. 408 (1984).

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. 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:

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.

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.

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.

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.

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?

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.

A reasonable cross-section of these facts has already been
enumerated. 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.

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).

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.

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:

“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.”

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.
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).

Despite this purposeful activity, Defendants have studiously
avoided the actual marketing and sale of “Original Crazy Horse Malt
Liquor” in Indian country 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.

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 the 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.

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. 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 defendant’s 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=2E2d
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.

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 requirements – 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 Enquirer Inc., 854 F.2d 1191 (9th Cir. 1978).

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.

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

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. 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.”

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 the 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.

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.” 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.

3. Subject Matter Jurisdiction.

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. 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

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,
some review of that case – what it is and is not about – is in order.

a). Montana v. United States.

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.

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.”) 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).

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.

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 trust 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.

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.

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) concerning 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.

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. 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.

b). The Montana “Proviso”.

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:

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, through
commercial dealing, contracts, leases or other arrangements. [E.g.,]
Williams 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.

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

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 formalism and insofar as the trial court so reasoned, it is
hereby rejected.

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.

c). A-I Contractors v. Strate.

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, 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.

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

C. Jurisdiction Pursuant to Federal Statutes.

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. =15 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.

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.

1. Indian Arts and Craft Act.

The Indian Arts and Crafts Act was enacted to “protect Indian
artists from unfair competition from counterfeiters.” 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) 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

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 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 trial 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.

2. Lanham Act.

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. =15 1125(a). The definitions in the
Lanham Act are to be construed broadly. Smith v. Montoro, 648 F.2d 602,
607 (9th Cir. 1981).

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.

IV. Conclusion.

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 court’s dismissal of the Indian Arts
and Crafts Act claim is affirmed.

Dated May 1, 1996

Leroy Greaves, Associate Justice
Patrick Lee, Associate Justice
Frank Pommersheim, Associate Justice
Chief Justice, Associate Justice

Ramon Roubideaux, Associate Justice
Michael Swallow, Associate Justice
Diane Zephier, Associate Justice