Amicus Curiae Brief — National Farmers Union Insurance v. Crow Tribe of Indians

-*

" Orcs Supreme Cour, UA, ]

| FILED

~~ in FEB 21 1995

Iu the Supreme Court of the Unite : aes:

OCTOBER TERM, 1984

NATIONAL FARMERS UNION INSURANCE

COMPANIES, ET AL., PETITIONERS

v.

CROW TRIBE OF INDIANS, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING RESPONDENTS

Rex E. LEE

Solicitor General

F. HENRY HABICHT II

Assistant Attorney General

Louts F. CLAIBORNE

Deputy Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether a federal court may enjoin Indian

tribal court proceedings against a non-Indian on the

ground that the tribal court has exceeded its juris-

diction.

2. Whether an Indian tribal court may exercise

civil jurisdiction over non-Indians to redress personal

injuries to a tribal member allegedly caused by the

negligent maintenance of a dangerous condition on

State-owned land within the Reservation where a

large number of Indian children attend school.

(1)

TABLE OF CONTENTS

Interest of the United States ............................................

Ee

I. cndensunenenntunne

Argument:

I. The federal court may exercise its injunctive

powers to keep the tribal court within its proper

II. The tribal court has jurisdiction to entertain

the underlying controversy ...........-.-.........-.......----

I ET

TABLE OF AUTHORITIES

Cases:

Alberty v. United States, 162 U.S. 499 —......00000.......

Babbitt Ford, Inc. v. Navajo Indian Tribe, 710

F.2d 587, cert. denied, No. 83-610 (Apr. 2,

ESS SEE

Cardin v. De La Cruz, 671 F.2d 363, cert. denied,

en cmmennenee

Cowan V. Rosebud Sioux Tribe, 404 F. Supp. 1338..

DeCoteau Vv. District County Court, 420 U.S. 425..

Helicopteros Nacionales de Colombia v. Hall, No.

rr Dn. ccaseessencnseess

International Shoe Co. v. Washington, 326 U.S.

a nsnemeuveumecoecse

Kennerly v. District Court, 400 U.S. 423 00.00.0000...

Lawrence Co. Vv. Lead-Deadwood School Dist., No.

a

Longpre V. Joint School Dist. No. 2, 151 Mont. 345,

a cteasensneumnoneee

SE

ES | OR

McClanahan v. Arizona State Tax Comm’n, 411

EEE EEL

20

16

IV V

Cases—Continued : Page Constitution, treaties and statutes : Page

Merrion Vv. Jicarilla Apache Tribe, 455 U.S. 130....6, 9, 13 U.S. Const. :

Montana Vv. Peretti, 661 | ). ae 11 Amend XI 11

Montana v. United States, 450 U.S. 544 ........ 9, 12, 13, _ y veneer XIV (Equal Protection Clause) Sire 12

18,1 Pes reer Te

Morris v. Hitchcock, 194 U.S. 384 ....................----.++ 16 Mont. Const. Art. IT:

Mt. Healthy City School District v. Doyle, 429 U.S. $18 (1972) nnn ennnnneeeeeoneeeecseeeeccneeetenneetteenntee 10

yeep tatneatinrmenastadenieaiieanstnnsstenndontene 11 th TT 10

Nevada V. Hall, 440 U.S. 410 -....22...2...2--...--:eseee-e0-e- 10 Second Treaty of Fort Laramie, May 7, 1868, art.

New Mexico v. Mescalero Apache Tribe, No. 82- De ae ee nenrrneitneieensrentcininintneniomenmninenenmminimnine 14

arene 9,18 Treaty of July 19, 1866, art. 13, 14 Stat. 803 _........ 16

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191.. 6,14 Treaty with the Navajos, June 1, 1868, art. 1, 15

Oneida Indian Nation v. County of Oneida, 414 SI TID” ncoserasssascirnepiniiaivaseerenenimneneeinannctetneessstemmnenase 15

OO iat elias 6 Act of May 2, 1890, ch. 182, 26 Stat. 81 et seq.:

Pennhurst State School & Hospital v. Halderman, caine 15

Ne. S1-B101 (Jam. BB, 19G4) ............-...00---200020200000 11 TE AA MOTOR RPE RRE 15

Ramah Navajo School Board, Inc. v. Bureau of Act of June 28, 1898, ch. 517, § 28, 30 Stat. 504...... 15

Revenue, 458 U.S. 882 .......----------ee-eeereeeeenee 9 Act of Apr. 26, 1906, ch. 1876, § 1, 34 Stat. 137...... 16

Santa Clara Pueblo v. Martinez, 436 U.S. 49 ........ 6,9, 18 Crow Allotment Act of 1920, ch. 224, § 16, 41 Stat.

Seymour v. Superintendent, 368 U.S. 351 -........... 13 Na a ae 12

Solem v. Bartlett, No. 82-1253 (Feb. 22, 1984) .... 13 8 U.S.C. (1976 ed.) 1401(a) (2) 12

Three Affiliated Tribes v. Wold Engineering, No. "ie 5, 6

82-629 (May 29, 1984) .............-.-.--------n-0--ee-ee+-n--0- 18 Mont. Code Ann. (1983) :

United States v. Antelope, 480 U.S. 641 -............... 9 § 2-9-101 (5) 10

United States v. Clapox, 35 i 16 § et eR i hoa 11

United States Vv. Mazurie, - ft ae 8, 9 § sis ERRAND 11

United States v. Mission Golf Course, Inc., 548 mm nanan a g

P, Bae, Se, eee eee Oe ee I Te

eS fe eee 12 Miscellaneous:

United States V. Wheeler, 435 US. 318 .......--------- wg 6,9 Cohen, Handbook of Federal Indian Law (1942)... 15

Warren Trading Post Co. v. Arizona Tax Comm’n, Comment, The Passing of Sovereign Immunity in

$80 U.S. 6865 eae p ewer Montana: The King is Dead, 34 Mont. L. Rev.

Washington v. Confederated Tribes of the Colville RETR 10

Indian Reservation, 447 US. 184 -..------- enn 6,9, 14 D. Getches, et al., Cases and Materials on Federal

White Mountain Apache Tribe v. Bracker, 448 U.S. Indian Law (1979) 16

(ACIS DAR AS SNS EEA oo AAR AAT 1,9 a i a ia ie

Williams V. Lee, 858 U.S. 217 ecccenneneee 1, 9, 15, 17, 18 ee ——

Worcester Vv. Georgia, 31 U.S. (6 Pet.) 515 ............ 9 National American Indian Court Judges Associa-

eye ny Volkswagen Corp. v. Woodson, 444 - tion, Indian Courts and the Future (1978) ......... 16

Miscellaneous—Continued : Page

OS ya 15

Powers of Indian Tribes, 55 Interior Dec. 14

EERE ERS ae Se ee 15

President’s Statement on Indian Policy, 19 Weekly

Comp. Pres. Doc. 98 (Jan. 24, 1983) -................. 1

R. Strickland, et al., Felix S. Cohen’s Handbook

of Federal Indian Law (1982) .........................---- 16

In the Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-320

NATIONAL FARMERS UNION INSURANCE

COMPANIES, ET AL., PETITIONERS

Vv.

CROW TRIBE OF INDIANS, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

The United States has long been committed to fur-

thering the goal of self-government and self-determi-

nation for Indian Tribes. See, e.g., White Mountain

Apache Tribe v. Bracker, 448 U.S. 136, 143-144 &

n.10 (1980); President’s Statement on Indian Policy,

19 Weekly Comp. Pres. Doc. 98 (Jan. 24, 1983). One

aspect of that responsibility is to encourage respect

for tribal institutions, including the tribal courts.

Hence, participation of the United States in cases of

this kind at least since Williams v. Lee, 358 U.S. 217

(1959). So here: we deem it appropriate to present

our views on the question of tribal jurisdiction over

activities within a Reservation that significantly af-

fect the welfare of tribal members.

(1)

2

STATEMENT

In May 1982, a Crow Indian child, Leroy Sage,

was struck by a motorcycle on the grounds of the

Lodge Grass Elementary School within the Crow Res-

ervation in Montana. The school is situated on State-

owned Reservation land and its student body is 85%

Crow Indian. Sage, through his guardian, filed suit

against Lodge Grass School District No. 27 in Crow

Tribal Court alleging that his injuries were caused

by the negligent conduct of the school, specifically, the

unsafe condition of the school parking lot and inade-

quate supervision during school hours. Process was

served on the school board chairman, who failed to

notify anyone else of the summons. The school dis-

trict did not answer or appear and, in due course,

on October 19, 1982, the tribal court entered a de-

fault judgment for $153,000 against the school dis-

trict. Pet. App. 2a-3a, 15a-16a.

On November 2, 1982, having received notice of

this judgment, the school district and its insurance

company filed suit in federal district court alleging

that the tribal court lacked subject matter jurisdic-

tion over the controversy. Accepting that argument,

the district court permanently enjoined enforcement

of the tribal court order. Pet. App. 14a-27a. The

Court of Appeals for the Ninth Circuit reversed,

holding that a federal court could not enjoin the

tribal court proceeding. Pet. App. la-7a. Judge

Wright concurred in the result on the ground that

the district court should not have intervened before

requiring the plaintiffs to exhaust their tribal court

remedies. Pet. App. 8a-13a.

Shortly after the court of appeals’ decision, on

August 1, 1984, the Crow Tribal Court issued a writ

of execution pursuant to which certain property of

3

the school district was seized. Sale of the property

was scheduled for August 28. On August 22, the

ool district appeared in the tribal court, seeking

enjoin the sale and to set aside the default judg-

ment. The court, in orders dated August 22 and

August 23, postponed the sale, and set a hearing to

consider the school district’s motion to set aside the

default judgment. Br. in Opp. App. 1la-9a.

The school district also applied to Justice Rehnquist

for a stay of the Ninth Circuit’s mandate. Justice

Rehnquist issued a temporary stay on Augus! 21

and continued the stay on September 10. Reply Br.

App. la-8a. On September 19, the tribal court en-

tered an order postponing a ruling upon the motion

to set aside the default judgment until after final

review of the federal court proceedings by this Court.

Br. in Opp. App. 10a-15a.

SUMMARY OF ARGUMENT

The District Court in this case held, first, that it

could entertain a complaint against the exercise of

power by the Crow Tribal Court allegedly outside its

jurisdiction, and, second, that the latter court wholly

lacked subject matter jurisdiction to entertain a per-

sonal injury claim by a Crow child against a State

school district with respect to conduct occurring on

State-owned land within the Indian Reservation. We

believe the first ruling was correct, but the second

erroneous.

I

Undeniably, the sovereign powers of Indian Tribes

over non-Indians have been circumscribed by the re-

ality of their “dependent status,” even when no spe-

cific provision of treaty or statute expressly so stipu-

lates. Such limitations on tribal sovereignty are nec-

4

essarily the consequence of federal law and it follows

that anyone claiming immunity from tribal jurisdic-

tion on this basis is asserting a federal right within

the competence of the federal courts to adjudicate.

Unlike an allegation of violation of the Indian Civil

Rights Act, for which an apparently exclusive remedy

has been provided, there is no reason to deny the

availability of injunctive relief to a non-Indian whose

complaint is that the tribal court is acting wholly

beyond its jurisdiction.

Of course, federal courts should not always exer-

cise their equitable jurisdiction at the earliest op-

portunity, especially when an adequate remedy may

be available in another tribunal. Thus, here, even if

intervention otherwise had been justified, it might

have been appropriate for the district court to re-

quire petitioners first to seek relief in the tribal court

system. But, in our view, that question is mooted

because the facts presented to the federal court dis-

closed a case properly within tribal jurisdiction. In

the present context, there is no occasion to decide

under what circumstances, if any, a federal court

may collaterally review tribal court judgments on

grounds other than the subject matter jurisdiction

of the tribal court.

II

Our submission in support of tribal court jurisdic-

tion is limited to circumstances like those alleged

here. This Court repeatedly has stressed the residual

sovereignty of Indian Tribes and the governmental

authority they enjoy over their diminished territory,

including, in some cases, the activities of non-Indians

on “fee” parcels within the Reservation. When such

activities significantly affect tribal members, they are

subject to regulation and taxation by the Tribe.

5

There is no reason to view differently the exercise of

civil jurisdiction by the tribal judiciary in like cir-

cumstances. Montana has apparently waived any

sovereign immunity it might possess and the hazard-

ous situation described in the present complaint, po-

tentially endangering a significant portion of the

Tribe’s younger membership, justified the tribal

court’s acceptance of the case. Accordingly, those

proceedings ought to be permitted to go forward with-

out federal court interference, at least at this stage.

ARGUMENT

I. THE FEDERAL COURT MAY EXERCISE ITS IN-

JUNCTIVE POWERS TO KEEP THE TRIBAL

COURT WITHIN ITS PROPER BOUNDS

We are unable to endorse the holding of the ma-

jority of the court of appeals that federal courts lack

power to intervene when a tribal court acts beyond

its jurisdiction. On the contrary, we share the ob-

jections to such a rule stated by Judge Wright in

his concurring opinion below (Pet. App. 8a-13a), by

Justice Rehnquist in his opinion accompanying the

stay orders (Pet. Reply Br. App. la-8a), and by

petitioners here. In our view, because the boundaries

of tribal jurisdiction are defined by federal law, a

non-Indian claiming injury from tribal “jurisdic-

tional excesses” states a “federal question” case un-

der Section 1331 of the Judicial Code, and the ap-

propriate United States District Court may enter-

tain the complaint, and, if the facts warrant it, en-

join further proceedings in the tribal court. We now

urge affirmaace of the judgment vacating the federal

court injunction because we believe the circumstances

alleged show, on balance, that the tribal court did not

exceed its jurisdiction. But we have no doubt that

6

the district court was correct in entertaining the

question, albeit we submit it reached the wrong con-

clusion on the merits.

1. It is clear enough that Indian Tribes lost some

of their aboriginal sovereignty when they were

brought under the dominion of the United States

and assumed a “dependent status.” Oliphant v.

Suquamish Indian Tribe, 435 U.S. 191, 206, 209-210

(1978) ; United States v. Wheeler, 435 U.S. 313, 323,

326 (1978). At least in the eye of the law, that con-

sequence resulted from federal action, since the na-

tional sovereign alone has power to diminish tribal

independence. Merrion v. Jicarilla Apache Tribe, 455

U.S. 180, 147 (1982); Washington v. Confederated

Tribes of the Colville Indian Reservation, 447 U.S.

134, 153-154 (1980); United States v. Wheeler, 435

U.S. at 323. Accordingly, all limitations on tribal

powers necessarily derive from federal law—whether

in the form of constitutional principles, treaties and

statutes, or “rudimentary propositions” of “Indian

law.” See Oliphant, 435 U.S. at 206; Oneida Indian

Nation v. County of Oneida, 414 U.S. 661, 670

(1974). And those who invoke these limitations as

affording immunity from tribal jurisdiction are claim-

ing a federal right and stating a “federal question”

case under Section 1331 of the Judicial Code. Cf.

Oneida, 414 U.S. at 667-678; Lawrence Co. v. Lead-

Deadwood School Dist., No. 83-240 (Jan. 9, 1985),

slip op. 3-4 n.6.

2. In this context, we see no obstacle to conceding

a private right of action in the non-Indian who al-

leges that he is improperly subjected to tribal court

jurisdiction. Unlike the situation under the Indian

Civil Rights Act, here Congress has not implicitly

restricted the remedy. Compare Santa Clara Pueblo

v. Martinez, 486 U.S. 49 (1978). In a case like this

7

one, where the allegation is that the Tribe is acting

wholly outside its jurisdiction, there is no reason to

deny the availability of injunctive relief in a federal

court at the instance of a suitor claiming injury from

tribal “jurisdictional excess.”

As the court of appeals recognized, this has been

the prevailing view when an Indian Tribe is alleged

to have overstepped applicable boundaries through

legislation or regulation. Pet. App. 5a-6a. Like pe-

titioner, we cannot appreciate why the same rule

should not govern when the claim is that a tribal cowrt,

instead of a tribal council, has exceeded its jurisdic-

tion. The federal court’s power is no less because the

Tribe is acting judicially rather than through legis-

lation.

3. Of course, a federal court’s exercise of its in-

junctive power is circumscribed by traditional equi-

table limitations. For instance, injunctive relief may

be withheld if the plaintiff has an “adequate remedy

at law.” In the present case, the petitioners could

have contested tribal court jurisdiction, at the out-

set, in the tribal court. The availability of a tribal

court remedy perhaps should have cautioned the dis-

trict court to withhold federal injunctive relief. So,

also, this Court may wish to defer decision as to the

scope of the tribal court’s jurisdiction, since that issue

was not passed upon by the court of appeals and is

pending before the tribal court. On the other hand,

we believe the facts presented to the district court

indicate a case within tribal court jurisdiction, and,

of course, if that is correct, the federal court had

no ground for intervening, at least at this stage.’

1 We believe it is premature to discuss the circumstances, if

any, that would justify a federal court in reviewing tribal

court proceedings for procedural regularity or the legality of

8

Il. THE TRIBAL COURT HAS JURISDICTION TO

ENTERTAIN THE UNDERLYING CONTROVERSY

In our view, the ultimate question—whether the

tribal court permissibly exercisei jurisdiction over the

tort claim alleged—is not without difficulty, particu-

larly in light of the limited record before this Court.

Nevertheless, if the issue is deemed ripe for decision,

we suggest an affirmative answer. In reaching that

conclusion, we eschew both extreme positions. We

cannot endorse the proposition that every incident oc-

curring within an Indian Reservation is, for that rea-

son alone, subject to tribal jurisdiction. At the same

time, we think it clear that tribal courts may adjudi-

cate some Reservation-based claims asserted against

non-Indians. Our submission is simply that the pres-

ent case falls within this relatively narrow category.

1. It is useful, at the outset, to lay to rest any

invitation to re-open the venerable debate whether the

surviving Indian Tribes, within their diminished Res-

ervations, are merely “private, voluntary organiza-

tions,” or, rather, should be recognized as “unique

aggregations possessing attributes of sovereignty over

both their members and their territory.” H.g., United

States v. Mazurie, 419 U.S. 544, 557 (1975). Of

course, everyone concedes the authority of Tribes to

determine their membership, to regulate, assess and

discipline members, and to control the use of tribal

particular means of executing a tribal court judgment. We

merely suggest that principles of comity may well counsel a

tribal court to follow state law with respect to the immunity

of governmental property from seizure. F.g., Mont. Code Ann.

§ 2-9-3818 (1983). Here, we have every reason to anticipate

that the ultimate judgment of the Crow Tribal Court, if its

jurisdiction is vindicated by the decision of this Court, will be

satisfied without putting that proposition to the test.

a=

9

land. But those are the prerogatives of every private

association. To read this Court’s decisions as saying

nothing more is to trivialize them. From Worcester

v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832), through

New Mexico v. Mescalero Apache Tribe, No. 82-331

(June 13, 1983), slip. op. 8-9, 11-12, the Court has

emphasized that Indian Tribes constitute “political

communities,” enjoying substantial “sovereign” pow-

ers over both members and nonmembers when within

Reservation boundaries. Looking only to the last 25

years, that point has been made no less than a dozen

times. See Williams v. Lee, 358 U.S. 217, 223

(1959); Warren Trading Post Co. v. Arizona Tax

Comm’n, 380 U.S. 685, 690-692 (1965); Kennerly v.

District Court, 400 U.S. 423, 426-427 (1971);

United States v. Mazurie, 419 U.S. at 557-558;

United States v. Antelope, 430 U.S. 641, 645 (1977) ;

United States v. Wheeler, 435 U.S. at 323; Santa

Clara Pueblo v. Martinez, 436 U.S. at 55-56; Wash-

ington v. Confederated Tribes of the Colville Indian

Reservation, 447 U.S. at 152-154; White Mountain

Apache Tribe v. Bracker, 448 U.S. 136, 142, 151

(1980); Montana v. United States, 450 U.S. 544,

565-566 (1981); Merrion v. Jicarilla Apache Tribe,

455 U.S. at 140, 146-148; Ramah Navajo School

Board, Inc. v. Bureau of Revenue, 458 U.S. 832, 837-

838 (1982); New Mexico v. Mescalero Apache Tribe,

slip op. 8-12.

Accordingly, we take it as settled that some non-

Indians, in some circumstances, are subject to some

kinds of tribal jurisdiction. Recognition of that

reality, it is true, does not immediately resolve the

case before us. There are limits to the power of

Indian Tribes over non-Indians, and the question is

whether the Crow Tribal Court’s exercise of jurisdic-

10

tion here transgresses any such bounds. To find the

answer, we must examine several potential objections

peculiar to the circumstances of this case.

2. Because the underlying tort claim is directed

against Lodge Grass School District No, 27, a “polit-

ical subdivision” of Montana (see Mont. Code Ann.

§ 2-9-101(5) (1983) ), troubling questions concerning

state sovereign immunity are implicated. In the cir-

cumstances of this case, however, we believe no insur-

mountable barrier exists.

It is not clear whether a state would in any event

retain its sovereign immunity from suit in tribal

courts. But, in our view, that question need not be

reached in this case because Montana has waived its

immunity from tribal court suits. In 1972, the State

amended its constitution to provide that “[t]he state

* * * and all * * * local governmental entities shall

have no immunity from suit for injury to a person or

property * * *.” Mont. Const. Art. II, §18. This

broad and unqualified waiver is remarkable. Shortly

after its passage, one commentator noted,

This bold constitutional step places Montana in

a situation which is unique among the fifty

states. Only this jurisdiction has moved to abol-

ish the doctrine of sovereign immunity, without

limitation, by constitutional fiat.

Comment, The Passing of Sovereign Immunity in Mon-

tana: The King is Dead, 34 Mont. L. Rev. 283 (1973)

(emphasis in original). Two years later, the State

constitution was amended to permit exceptions to the

waiver of sovereign immunity, but only “as may be

specifically provided by a 2/3 vote of each house of

the legislature.” Mont. Const. Art. II, §18 (1974)

(emphasis added). No such law addressed to tribal

11

court suits having been enacted, it is reasonable to

take Montana at its word and construe its constitu-

tional and statutory waiver of immunity (Mont. Code

Ann. § 2-9-102 (1983) ) as encompassing actions filed

in tribal court.’

Our conclusion is the more easily justified because

a local school district is involved. Unlike arms of

the central state government, school districts, defined

by state law as “political subdivisions,” are not en-

titled to sovereign immunity under the Eleventh

Amendment. See Mt. Healthy City School District v.

Doyle, 429 U.S. 274, 280 (1977).° Indeed, even before

the constitutional waiver of sovereign immunity in

1972, the Montana Supreme Court concluded that

school districts were amenable to suit to the limits

of their liability insurance. See Longpre v. Joint

School Dist. No. 2, 151 Mont. 345, 443 P.2d 1 (1968).

Accordingly, it is not surprising that sovereign im-

munity from suit was not a ground relied upon by

the district court and is only mentioned in a half-

hearted way both by the petitioners (Pet. Br. 20-22)

and by the State of Montana itself (Eleven Amicus

Curiae States Br. °5-36 & n.8).

For much the same reason, the claim of exemp-

tion likewise fails if stated more expansively as an

? Petitioners’ citation to Mont. Code Ann. § 2-9-311 (1983)

as giving Montana’s state courts “exclusive” jurisdiction of

tort actions against state agencies (Pet. 21) is misleading.

The provision merely confers jurisdiction—without any sug-

gestion that the grant is exclusive.

*This alone distinguishes the Ninth Circuit ruling in

Montana Vv. Peretti, 661 F.2d 756 (1981), that Montana’s

waiver of sovereign immunity is not sufficiently explicit to

overcome the barrier of the Eleventh Amendment in federal

courts. See Pennhurst State School & Hospital v. Halderman,

No. 81-2101 (Jan. 23, 1984).

)

12

assertion that the State and its instrumentalities are

altogether beyond tribal jurisdiction, whether exer-

cised through courts or other organs of government.

The Lodge Grass Elementary School is in no sense an

involuntary hostage on the Reservation. So far as we

are aware, Montana’s taking up the grant of Sections

16 and 36 within the Crow Reservation carried with

it no obligation to establish schools there, and, in any

event, nothing compelled the State to seek or accept

the offer.‘ In these circumstances, it seems appropri-

ate to hold that State agents relinquish their special

status when they enter an Indian Reservation and

their conduct there directly affects the welfare of the

Tribe. Cf. United States v. Mission Golf Course, Inc.,

548 F. Supp. 1177 (D.S.D. 1982), aff’d, 716 F.2d 907

(8th Cir. 1983), cert. denied, No. 83-606 (Jan. 9,

1984).

* We assume, without independent knowledge, that petition-

ers are correct in asserting (Pet. Br. 3-4, 20) that the land in

question was acquired by the State pursuant to Section 16 of

the Crow Allotment Act of 1920, ch. 224, 41 Stat. 756, which

tendered to the State the traditional “school sections” within

the Crow Reservation (see Pet. App. 19a n.2)—albeit the

Reservation had been established by treaty in 1868, long

before Montana achieved statehood. See Montana v. United

States, 450 U.S. at 548, 553-554, 558-559. In return, Montana

promised to permit Crow Indian children “to attend the public

schools of said state on the same conditions as the children of

white citizens of said state.” Jbid. Nothing in this proviso

directly required the State to maintain a school on each—or

any—Sectiong 16 and 36 within the Crow Reservation. On its

face, the undertaking is no more than what the Equal Protec-

tion Clause of the Fourteenth Amendment in any event man-

dated, at least after the Crow became State citizens in 1924.

See 8 U.S.C. (1976 ed.) 1401(a) (2). But, however that may

be, it is perfectly clear that federal law did not compel Mon-

tana to enter the Crow Reservation by taking up the option to

acquire one or more Sections 16 and 36.

13

8. Plainly, the situs of the tort on non-Indian land

cannot be dispositive. As the Court has stressed, In-

dian Tribes are not mere landowners: they wield

governmental powers. Merrion, 455 U.S. at 137-141,

145-149. There is, to be sure, a geographic limita-

tion on tribal jurisdiction—at least when asserted

over nonmembers. But that boundary is the perim-

eter of the Reservation, not the plot line of each

“fee” parcel within it. That is one reason why it

matters whether alienated tracts or portions of a

Reservation opened up to entry by homesteaders re-

main “Indian country.” See Seymour v. Superinten-

dent, 368 U.S. 351 (1962); Mattz v. Arnett, 412 U.S.

481 (1973); DeCoteau v. District County Court, 420

U.S. 425 (1975); Solem v. Bartlett, No. 82-1253

(Feb. 22, 1984), slip op. 2 nn.1&2, 4. It is, moreover,

what the Court expressly said in Montana v. United

States, 450 U.S. at 565 (citations omitted) :

* * * Indian tribes retain inherent sovereign

power to exercise some forms of civil jurisdic-

tion 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 nonmembers who enter consensual

relationships with the tribe or its members,

through commercial dealing, contracts, leases, or

other arrangements. * * * 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 threat-

ens or has some direct effect on the political in-

tegrity, the economic security, or the health or

welfare of the tribe. * * *

4. Nor do non-Indians enjoy a unique immunity

from the Tribe’s judicial arm. Just as petitioners

insist (correctly, we think) that federal jurisdiction

14

to correct tribal “jurisdictional excesses” does not

depend upon whether the Tribe is acting judicially or

legislatively, so we assert that tribel jurisdiction is

no less when exercised judicially instead of legisla-

tively. It is no answer that Indian Tribes cannot

criminally prosecute non-Indians for offenses com-

mitted on the Reservation, even crimes against mem-

bers occurring on tribal lands. Oliphant v. Suquam-

ish Indian Tribe, supra. A sufficient reason for that

rule is not peculiar to the Indian tribunal: The non-

Indian is simply not subject to substantive tribal

criminal law. See Colville, 447 U.S. at 153.

Our history of Indian affairs indicates that the

absence of tribal criminal jurisdiction over non-

Indians is no basis for disabling Indian Tribes from

exercising civil jurisdiction over non-Indians. Indeed,

as Oliphant itself stresses, national policy, evidenced

in federal legislation from the Trade and Intercourse

Act of 1790 to the Major Crimes Act of 1885 and a

long line of treaty provisions, has subjected non-

Indians committing offenses against tribal members

to federal criminal law, administered by the federal

courts. 435 U.S. at 198-203. And this, the Court

concluded, reflected the “commonly shared presump-

tion of Congress, the Executive Branch, and lower

federal courts that tribal courts do not have the power

to try non-Indians.” Jd. at 206. But there is nothing

comparable on the civil side. Except for a brief and

unusual transitional period in the Indian Territory

(note 6, infra), no treaty nor statute has ever pro-

vided for federal adjudication of Reservation-based

civil cases involving non-Indians.° On the contrary,

5 We do not accept the contrary implication sought to be

drawn from Article 1 of the Second Treaty of Fort Laramie,

May 7, 1868, 15 Stat. 649, by the State of Washington as

amicus curiae (Br. 8-10). The cited provision deals only with

15

the different rule applicable in respect of tribal asser-

tions of civil jurisdiction was expressly noted as early

in 1855 in an Opinion of the Attorney General cited

by this Court in Oliphant. 7 Op. Att’y Gen. 174,

cited, 435 U.S. at 199.

Thus, once it is recognized that Tribes “retain in-

herent sovereign power to exercise some forms of

civil jurisdiction over non-Indians on their reserva-

tions,” Montana, 450 U.S. at 565, there is no reason

to exclude the jurisdiction of the tribal courts in cases

where substantive tribal law governs non-Indians. As

Felix Cohen has summarized the matter, “the judicial

powers of the tribe are coextensive with its legislative

or executive powers.” Cohen, Handbook of Federal

Indian Law 145 (1942). Accord, Powers of Indian

Tribes, 55 Interior Dec. 14, 56 (1934). It would be

strange, indeed, if, in a given instance, a non-Indian

were subject to tribal taxation or regulation, but

could not be made answerable in tribal court to as-

sure compliance with the relevant ordinance.°

criminal offenses and, incidentally, obligates the United States

to make whole the Indian victim of a non-Indian crime. Obvi-

ously, this does not remotely speak to the jurisdiction of the

Tribe to exercise civil jurisdiction over non-Indians in a non-

criminal context. Indeed, Washington’s argument is fore-

closed by this Court’s ruling in Williams v. Lee, supra, which

sustained tribal court jurisdiction over a non-Indian doing

business on the Reservation in the face of an identical provi-

sion in the Treaty with the Navajos, June 1, 1868, Art. 1, 15

Stat. 667.

* That awkward circumstance did prevail, for a short time,

in the Indian Territory after Congress first restricted the

exclusive jurisdiction of the tribal courts of the Five Civilized

Tribes to cases in which members were “the sole parties” (Act

of May 2, 1890, ch. 182, §§ 30, 31, 26 Stat. 94), and, eight

years later, abolished those tribunals altogether (Act of June

28, 1898, ch. 517, § 28, 30 Stat. 504). See Cohen, supra,

16

5. We must not be misled because there is little

record, until recently, of Indian tribunals exercising

civil jurisdiction over non-Indian defendants. Except

for the Five Civilized Tribes whose institutions were

soon severely curtailed, the fact is that judicial tribu-

nals, in the white man’s sense, were largely unknown

in the traditional Indian world. They were first intro-

duced into Indian country as “courts of Indian offen-

ses,” effectively agencies of federal police administra-

tion with limited jurisdiction. United States v. Cla-

pow, 35 F. 575 (D. Or. 1888). See D. Getches, et

al., Cases and Materials on Federal Indian Law 313-

317 (1979); R. Strickland, et al., Felix S. Cohen’s

Haidbook of Federal Indian Law 333-334 (1982).

And where genuine tribal courts ultimately developed,

they suffered other set-backs. As one recent study

concludes (National American Indian Court Judges

Association, Indian Courts and the Future 138

(1978) ):

Overall, Indian courts have been retarded by

their history. They originally were vehicles of

an outside force. Later, their intended growth as

at 363 n.29, 430. Enforcement of tribal taxes due by non-

Indians thereafter depended on the Interior Department for

the brief period until taxing power was itself terminated in

1906 (Act of Apr. 26, 1906, ch. 1876, §1, 34 Stat. 137).

See, e.g., Morris v. Hitchcock, 194 U.S. 384 (1904). But this

exceptional situation, created by special legislation aimed at

particular Tribes, indicates what otherwise would be the rule:

civil judicial power reaching non-Indians to the same extent

as the Tribe’s legislation may. Before the Act of May 2, 1890,

the civil jurisdiction of the Cherokee courts expressly covered

not only cases in which members were the only parties, but

also “where the cause of action shall arise in the Cherokee

nation.” Treaty of July 19, 1866, art. 13, 14 Stat. 803. See Jn re

Mayfield, 141 U.S. 107, 118-115 (1891); Alberty v. United

States, 162 U.S. 499, 502-503 (1896).

17

integral parts of an Indian government was

stunted by a lack of effective programs or fund-

ing, as well as policy vacillations. * * *

Today, however, the situation is very different. One

survey indicated that no less than 66 Tribes expressly

assert civil court jurisdiction over non-Indians in

some circumstances. NAICJA Report, Native Ameri-

can Tribal Court Profiles, 1984, at 4, 5, 6, 7, 10, 11,

14, 15, 19, 21, 22, 23, 25, 30, 32, 40, 42, 44, 51, 53,

54, 56, 57, 62, 66, 70, 73, 76, 78, 80, 81, 82, 85, 86,

87, 88, 89, 90, 91, 92, 96, 97, 98, 100, 101, 104, 105, 106,

107, 110, 112, 118, 114, 115, 118, 119, 121, 124, 125,

126, 127, 128, 134, 136, 137, 148. The Department of

the Interior has approved such provisions’ and, at

least in some contexts, so have the courts. £.9.,

Cowan v. Rosebud Sioux Tribe, 404 F. Supp. 1338

(D.S.D. 1975); Cardin v. De La Cruz, 671 F.2d 363

(9th Cir. 1982), cert. denied, 459 U.S. 967; Babbitt

Ford, Ine. v. Navajo Indian Tribe, 710 F.2d 587 (9th

Cir. 1983), cert. denied, No. 83-610 (Apr. 2, 1984).

Indeed, this Court’s ruling in Williams v. Lee, supra,

and its progeny strongly indicates that a non-Indian

whose conduct directly affects tribal members may be

7 Among tribal laws approved in the last decade by the

Department which assert tribal court civil jurisdiction over

non-Indians are constitutions, codes or ordinances of the

Pueblo of Laguna, the Yerington Paiute Tribe, the Ute

Tribe, the White Mountain Apache Tribe, the Gila River In-

dian Community, the Keweenaw Bay Indian Community, the

Bay Mills Chippewa Tribe, the Confederated Tribes of the

Warm Springs Reservation, the Makah Tribe, the Port Gam-

ble Klallam Tribe, the Quileute Tribe, the Nez Perce Tribe,

the Mescalero Apache Tribe, the Rosebud Sioux Tribe, the

Crow Creek Tribe, the Fort Peck Assiniboine and Sioux

Tribes, the Fort Belnap Gros Ventre and Assiniboine Tribe,

the Salt River Pima and Maricopa Tribes and the Devils Lake

Sioux Tribe.

18

required to answer in tribal court in respect of a Res-

ervation-based civil claim. After all, it would be

anomalous to excuse non-members from appearing in

tribal court when the same persons, as plaintiffs, are

compelled to invoke that tribunal to seek judicial

redress.° That appears to be the Court’s teaching in

stating, without distinction between plaintiff and de-

fendant, that “[t]ribal courts have repeatedly been

recognized as appropriate forums for the exclusive

adjudication of disputes affecting important personal

and property interests of both Indians and non-

Indians.” Santa Clara Pueblo v. Martinez, 436 U.S.

at 65 (footnote omitted ).°

8 Of course, this symmetry cannot be extended to in per-

sonam jurisdiction. A defendant can object, on Due Process

grounds, to a plaintiff’s choice of a state forum if requisite

“minimum contacts” are lacking, notwithstanding the forum’s

power, in the abstract, to adjudicate the claim. E.g., Helicop-

teros Nacionales de Colombia v. Hall, No. 82-1127 (Apr. 24,

1984) ; World-Wide Volkswagen Corp. v. Woodson, 444 U.S.

286 (1980). We assume that similar limitations apply to

tribal forums. But there is no assertion in this case that the

relationship between the defendant, the forum, and the liti-

gation is so tenuous that tribal court jurisdiction would

offend “traditional notions of fair play and substantial jus-

tice.” International Shoe Co. v. Washington, 326 U.S. 310,

316 (1945).

® Indeed, the district court below recognized the contra-

diction and sought to avoid it by suggesting that Williams Vv.

Lee effectively has been overruled by Montana vy. United

States. Pet. App. 23a-24a. As this Court well knows, that is

hardly the case. See, e.g., Three Affiliated Tribes v. Wold

Engineering, No. 82-629 (May 29, 1984), slip op. 8-9. If

anything, it is the Montana decision that has been narrowed.

See, e.g., New Mexico v. Mescalero Apache Tribe, slip op. 7

n.12.

19

6. We find particularly strained the suggestion

that the dictum from the Montana case just quoted

permits tribal exercise of jurisdiction over non-

Indians on the Reservation when the conduct in ques-

tion directly affects the “health or welfare” of the

Tribe itself, but denies jurisdiction when the mem-

bers are adversely affected. One need only posit a

case of tortious damage to tribal property—instead

of personal injury to a member—and ask whether the

non- ndian tortfeasor would then be answerable in

triba. court. Surely, a rampant public nuisance

locatea on the Reservation is not less subject to tribal

jurisdic‘ion because the resulting harm is to the

tribal population rather than the tribal land. Cf.

McClanahan v. Arizona State Tax Comm’n, 411 U.S.

164, 179, 180-181 (1973).

It may be debatable whether tribal courts can com-

pel a non-Indian motorist travelling through the Res-

ervation to answer for an isolated tort affecting only

a single individual who happens to be an Indian. But

there is no basis for denying the Tribe and its in-

stitutions power to deal wii a situation like that

alleged here—maintaining a dangerous condition that

potentially threatens the entire student body of a Res-

ervation school, 85% of whom are tribal members.

The standard, we submit, is whether the conduct un-

derlying the lawsuit significantly affects the tribal

community. On the face of the complaint here, this

is such a case.

20

CONCLUSION

The judgment of the court of appeals vacating the

injunction entered by the district court should be

affirmed.

Respectfully submitted.

REx E. LEE

Solicitor General

F. HENRY HABICHT II

Assistant Attorney General

LouIs F. CLAIBORNE

Deputy Solicitor General

FEBRUARY 1985

W ov. S. GOVERNMENT PRINTING OFrice; 1965 461531 10171