Blackfeet Tribe Members File Opening Brief Appealing IEEPA Challenge Transfer at 9th Circuit
After a federal district court in Montana denied rehearing (see 2506020059), four members of the Blackfeet Nation appealed June 9 to the U.S. Court of Appeals for the 9th Circuit as they continue to challenge the transfer of their International Emergency Economic Powers Act case out of the state. They argued again that the Constitution differentiates between commerce with foreign nations and commerce with Native Americans and that the trade court has only been granted jurisdiction over cases involving the former (Susan Webber v. U.S. Department of Homeland Security, 9th. Cir. # 25-2717).
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The U.S. successfully sought a motion to transfer their case from the U.S. District Court for the District of Montana in April (see 2504250063).
The Blackfeet Tribe members argued that CIT doesn’t have jurisdiction over their IEEPA challenge because Congress has given the trade court only the authority to hear cases involving commerce with foreign nations -- not with Native American tribes.
The Commerce Clause of the Constitution provides district courts the sole power to hear such cases, they said. Article I, Section 8, Clause 3 states that Congress has the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” they said, “drawing a distinction” between commerce with other countries and commerce with Native Americans. This is important, they noted, because the Blackfeet Nation straddles the U.S.-Canada border, so the only commerce being regulated by the reciprocal tariffs is that which is being conducted between members of the same tribe (see 2505200052).
They also pointed to the Jay Treaty, signed in 1794, as evidence of the Founders’ intent in including this distinction. The treaty explicitly ensured that Native American tribal members doing business across the U.S.-Canada border couldn’t be asked to pay tariffs on any of their sales, they said.
CIT is an Article III court, meaning that Congress must specifically define its jurisdiction, the four plaintiffs said. The legislative branch did so in 28 U.S.C. 1581 and 1582, they said. But those provisions don’t provide CIT jurisdiction over “[a] constitutional claim to the President’s ability to regulate tribal commerce,” they said; they only grant the trade court the power to hear cases involving international trade.
The district courts’ jurisdiction over constitutional matters involving commerce between Native American tribes wasn’t impacted by the passage of 28 U.S.C. 1362, they added.
When the Montana district court denied the plaintiffs reconsideration of its transfer ruling, it wrongly determined that “[w]hile ‘Indian tribes’ may be more broadly construed for purposes of the Indian Commerce Clause,” the case law regarding Section 1362 “has interpreted that statute as a grant of jurisdiction to the tribe, and not the individual members that comprise the tribe,” they argued.
Prior cases have actually found the opposite, they said, citing the 2023 Supreme Court case Haaland v. Brackeen. In that case, the Supreme Court held that “[c]ommerce with the Indian Tribes means ‘commerce with the individuals composing these tribes.’”
And they pushed back on the district court’s characterization of their case as “artfully” designed to implicate the constitution. Their constitutional claim is the “only claim they filed,” they said.
“Appellants -- individual businesses, ranchers, and tribal members -- are asking this Court to protect their constitutional right to have congress regulate their commercial lives,” they said. “Appellants constitutional claim is not ‘included’ to slip into federal court by a side door.”