Legal Beat: Tribal courts draw adroit lawyers Story-Date: 07:46 a.m. PST Friday , March 20, 1998 ------------------------------------------------------------ Legal Beat: Tribal courts draw adroit lawyers By Richard B. Schmitt The Wall Street Journal OKMULGEE, Okla. (Wall Street Journal) -- In the District Court of the Muscogee (Creek) Nation, cigarette manufacturers are facing their latest stand. Last June, the 40,000-member Creek tribe joined the growing wave of litigation against the tobacco industry. The tribe filed suit -- in its own tribal court, where the judge and jury are all-Indian -- to recover money it spent treating members of the tribe who smoked and got sick. The tobacco industry, nervous about its chances, sought to retreat to federal court, saying its interests would be "irreparably harmed" otherwise. But the tribe's judge thwarted the move, and the two sides are edging toward trial. Inventive plaintiffs' lawyers are moving into tribal courts, creating a new frontier for injury litigation. Once looked upon as sleepy backwaters, historically focused on domestic rifts among members of their own tribes, the courts are asserting themselves over non-Indians. And chief among the targets are some large U.S. corporations. Kerr-McGee Corp. faces a lawsuit in Navajo tribal court in New Mexico for injuries allegedly stemming from its operation of a uranium mill on Navajo land in the 1950s. Two years ago, Burlington Northern Railroad was hit with a $250 million jury award in Crow tribal court in Montana, stemming from an accident at a train crossing. The award was subsequently reduced voluntarily by the plaintiffs to $25 million, but the railroad still considers the sum excessive and is pursuing a dual appeal in both tribal and federal courts. Besides the Creeks, about 20 other tribes are considering liability suits against the tobacco industry. "What you have are Native Americans becoming 21st-century Americans," says Seth Lesser, a New York lawyer representing the Indians in the Kerr-McGee case. One of a growing number of lawyers filing suit in tribal courts, he observes that Indian courts generally have light dockets and provide relatively swift justice. Companies say the tribal-court experience is like litigating in a foreign country. Tribes generally have no established business law, and cases can turn on unwritten custom and tradition. In the Burlington Northern case, the tribe was allowed to counter defendants' evidence that the victims were legally drunk with its own evidence that blood-alcohol testing of the dead violated ancient tribal-desecration laws. During jury selection, a Crow leader addressed the court in the mother tongue, invoking images of Indian bodies "scattered along the railway" throughout history, according to a defense translation. "The problem with tribal court is that you are an outsider," says Jeff Hedger, a Billings, Mont., lawyer who represented the railroad. In the radiation suit, Kerr-McGee is seeking to take the deposition of a Navajo medicine man who treated some of the alleged victims. The tribe is resisting the request, saying that communications with medicine men are privileged. Federal courts have been reluctant to interfere in tribal-court matters, citing tribes' status as sovereign nations. And while U.S. law generally prohibits tribal courts from hearing cases against non-Indians, there is a loophole: In 1981, the U.S. Supreme Court made exceptions in civil suits affecting "the political integrity, the economic security, or the health or welfare of the tribe." Lower courts are still struggling to give meaning to those words. The court system of the Creek, one of the five tribes forcibly relocated here in the infamous 1830s' Trail of Tears, is considered more progressive than most. The court is located in a modern, mound-shaped building reminiscent of the meeting places where ancient Creeks debated issues of war and peace. Inside, the court has a small-town feel, with four pews, a decent law library with an ability to retrieve the latest cases electronically, and an American flag, draped with an eagle feather. Most days, the docket is decidedly local, featuring custody disputes or minor crimes. But the court has branched out. A few years ago, the tribe won a $6 million settlement after suing a non-Indian operator of its bingo concession, for example. In business disputes, Creek law requires the judge to look to state and federal precedents, a stipulation intended to comfort anxious outsiders. Judge Patrick E. Moore, a former Okmulgee County prosecutor, has been the chief district judge in the Creek tribal court for 11 years and has been involved in several hundred jury trials. He says he has occasionally resorted to traditions that go back "10,000 years," allowing a trial over some disputed ceremonial ground to be handled entirely in the Creek language. Appeals, meanwhile, are handled by a six-person supreme court that includes a school administrator, mayor and retired telephone-company engineer, but only two lawyers. The justices sit on an as-needed basis and earn $1,000 a month. In the tobacco suit, the tribe analogizes its plight to that of the more than 40 states that have filed suit against the industry seeking to recover money they spent under the federal Medicaid program. The states' suits would be settled under federal tobacco legislation that Congress is now debating; the companies have proposed paying $368.5 billion. Creek and other tribes say tribal-court action may be the only way to ensure that their own interests are reflected in the settlement. Mark Hutton, a Wichita, Kan., attorney representing the Creek nation, says tribal court is an appropriate forum to address those grievances. "If the tobacco companies don't want to be in tribal court, they shouldn't send their products onto trust property or reservation land," he says. Under a contingent-fee agreement, Mr. Hutton says his firm stands to earn up to one-third of any recovery for the tribe, although the fee could be cut by the federal Bureau of Indian Affairs. But even some Creek are concerned that the suit sends out mixed signals, in that tobacco remains vital to the Creek economy. Across the street from the court is a new Creek-owned-and-operated tobacco "superstore" that's expected to pull in a million dollars in revenue this year. Tribe-regulated "smoke shops" dot the main road, generating tax revenue. John Phillips, a Seattle lawyer who represents Philip Morris Cos., says the suits are groundless because the health-care funds at issue involved federal grants to the tribes. "We don't believe the tribe has any legal right to sue for those monies," he says. R. Perry Beaver, the principal chief of the Creek nation, has a reply to that. "We're a nation," he says. "We have people with health problems. We feel like we have the same rights as the states. If everyone else is going to get their money back ... we should, too." Last month, Judge Moore rejected an industry motion to dismiss the case. The tobacco companies are appealing in tribal court. ------------------------------------------------------------