On November 17, 1997, in the federal courthouse in St. Paul, Minnesota, attorneys for the Rosebud Sioux Tribal Court, the Estate of Tasunke Witko [Crazy Horse] and the AriZona Beverage companies [Hornell Brewing Company, G. Heileman Brewing Company, and Ferolito,Vultaggio and Sons] will argue whether or not the Estate’s lawsuit against the brewers should be heard in the Rosebud Sioux Tribal Court.

The oral arguments will begin at 9:00 A.M. For one hour, these parties will argue the meaning of exhaustion of tribal court remedies, the jurisdiction of a tribal court to establish and abide by its own procedure, the extent to which a District Court may restrain a tribal court’s actions, and why it is appropriate for the Rosebud Court to hear this case.

Since filing its complaint in August 25, 1993, the Estate of Tasunke Witko has sought to hold the makers of “The Original Crazy Horse Malt Liquor” accountable for their outrageous conduct in the Rosebud Sioux Tribal Court. For the past four years, the Estate has battled the AriZona Beverage companies over whether the Tribal Court has adjudicatory jurisdiction in this matter. Tribal court adjudicatory jurisdiction is the power or authority of the tribal court to hear a case.

Tribal Court jurisdiction over this case is important both for this case, in particular, and for the more general authority of tribal courts nationwide. As we have seen in recent years, the U.S. Supreme Court has begun to narrow the jurisdiction of tribal courts with respect to non-Indians. Most recently in Strate v. A-1 Contractors, the U.S. Supreme Court took its holding in Montana v. U.S., which limited tribal regulatory jurisdiction over non-Indians, and directly applied it to tribal adjudicatory jurisdiction.

What is the Estate’s lawsuit about?

In this case, the Estate of Tasunke Witko opposes the taking of the Crazy Horse name for use by non-Indian brewers off the reservation. The right to control the use a person’s name or image in commerce is called the “right of publicity”. The publicity right is an intangible property right held by the person, or by his estate on behalf of his descendants or relations, for the exclusive control of the name or image in commerce. The Rosebud Sioux Tribal Court has ruled that the Estate holds the publicity right in this case. Valid tribal and Indian interests are at stake in here in setting precedent in Indian Country for the location of such intangible intellectual property rights on the reservation.

Why should the Tribal Court hear this case?

The Estate’s lawsuit raises several causes of action specific to and dependent upon interpretations of tribal customary law (Lakol Wo’ope) which have not been previously decided. Only a tribal court, and not a state or federal court, should make determinations on the laws of the tribe in a case of first impression. Further, the Rosebud Sioux Tribal law provides for “long arm” jurisdiction to the fullest extent of due process, so it has legal authority to pursue non-Indians located off the reservation for cause of action arising or committed on the reservation.

What would a favorable decision do for tribe’s nationwide?

A favorable decision in this case will allow tribal courts nationwide to serve as the appropriate court to protect the intangible property rights of their tribes and their members from being used without permission of those involved.

Why is having the trial on the Rosebud Reservation important?

The Rosebud Sioux Indian Reservation is the home of the Sicangu or Brule Band of Lakota. This is the band of Spotted Tail, who was Crazy Horse’s maternal uncle. In 1877, Crazy Horse had gone to live with his mother’s relatives among Spotted Tail’s band when he was killed at Fort Robinson. Holding the trial of the brewers who are abusing his name at Rosebud will maximize the participation of family and tribal members in the proceedings at the least expense. Family members on the Rosebud, Pine Ridge and Cheyenne River Sioux Reservation, and elsewhere in South Dakota, would have convenient access to Rosebud and could stay with relatives and friends, rather than have to travel to more distant courts in New York or elsewhere.

Widespread interest and the participation and testimony of tribal elders with regard to the tribal customary laws (Lakol Wo’ope) is an important part of the Estate’s lawsuit. Holding the trial in the Rosebud Sioux Tribal Court would be far more comfortable and convenient for such participation, and far less costly than holding the trial outside of Lakota country.

How does this case bring respect for Tribal Court procedures?

The District Court in South Dakota has found that the brewing companies have failed to exhaust their tribal court remedies. This means that the brewers must first go through the appropriate tribal court procedures. However, the District Court placed an injunction and restraining order on the Rosebud Tribal Court itself to prevent the court from following its own procedures in determining whether there should be a trial. A favorable decision from the 8th Circuit would order the District Court to respect the tribal court’s authority over its own procedure.

What happens if the Tribal Court is not permitted to hear the case?

If the federal courts prohibit a tribal court from hearing this case, the Estate would need to bring lawsuits in either a federal or state court where the defendant brewer companies are conducting business. This will require additional delays and extensive travel for the attorneys, the family, and expert witnesses, along with additional legal fees and costs to associate with local counsel in distant jurisdictions and the refiling of new lawsuits. Clearly, this case can be won with the least expense possible by having the trial in the Rosebud Sioux Tribal Court.

How does this case proceed in spirit of Crazy Horse?

From the very beginning, the Lakota relations descendant of Crazy Horse’s family have wanted to proceed with respect for the Spirit of Crazy Horse in the protection of his name, reputation and spirit. One of the causes of action in this case is defamation of the spirit under Lakota law. Further, recognizing that Crazy Horse himself never fought outside of this Lakota homeland and that he only fought in defense of his Lakota people and culture, the Estate has proceeded in a tribal court on a Lakota reservation and has moved under Lakota customary law, as well as appropriate federal law.

The public is welcome to come and listen to the oral argument in this precedent-setting Indian law case at 9:00 A.M. on Monday, November 17th, in the federal courthouse on Roberts Street, St Paul, MN.