Amicus Curiae Brief — Strate v. A-1 Contractors

In the

Supreme Court of the Hnited States

October Term, 1996

THE HONORABLE WILLIAM STRATE, ASSOCIATE

TRIBAL JUDGE OF THE TRIBAL COURT OF THE

THREE AFFILIATED TRIBES OF THE FORT

BERTHOLD INDIAN RESERVATION, THE TRIBAL

COURT OF THE THREE AFFILIATED TRIBES OF

THE FORT BERTHOLD INDIAN RESERVATION.

LYNDON BENEDICT FREDERICKS; KENNETH LEE

FREDERICKS, PAUL JONAS FREDERICKS. HANS

CHRISTIAN FREDERICKS; JEB PIUS FREDERICKS,

GISELA FREDERICKS,

Petitioners,

V.

A-!| CONTRACTORS and LYLE STOCKERT,

Respondents.

On Petition for Writ of Certiorari to the United States Court of Appeals

for the Eighth Circuit

BRIEF OF AMICI CURIAE THE YAVAPAI-APACHE

NATION, SHOSHONE TRIBE OF

THE WIND RIVER INDIAN RESERVATION, AND

LUMMI NATION IN SUPPORT OF PETITIONERS

Susan M. Wilhams*

Gwenellen P. Janov

Kelly A. Skalicky

Gover, Stetson & Williams, P.C

2501 Rio Grande Boulevard N.W

Albuquerque, N.M. 87108

(505) 842-6961

Attorneys for the } avapai-Apache

Nation, Shoshone Tribe of the Wind

River Indian Reservation, and the

Lummi Nation

*Attorney of Record

>,

«./

“ww

MORE THAN A CENTURY AND A HALF OF

SUPREME COURT PRECEDENT RECOGNIZES

THAT, ABSENT CONGRESSIONAL DIVESTITURE

OR VERY NARROW INSTANCES OF JUDICIAL

LIMITATION, TRIBES RETAIN BROAD INHERENT

SOVEREIGN POWERS OVER ALL PERSONS AND

ACTIVITIES WITHIN THEIR RESERVATION

A. Tribal Adjudicatory Jurisdiction

B. Tribal Regulatory Jurisdiction

THE DECISION OF THE COURT BELOW IS

INCONSISTENT WITH THIS COURT’S HISTORIC

TREATMENT OF TRIBAL JURISDICTION AND

MUST BE REVERSED

A. —_ On Its Facts, This Case Was Wrongly

ET MAC CHS CON bob beune ess cubkees si 17

B. The Montana Decision And The Need For

es 21

~ Montene... cc csccsccsceceessseu ee eeee 23

1. Montana Does Not Support The

Broad Rule Attributed To It. ........ 23

2. Montana Fundamentally Was

Concerned With Protecting Non-

Members’ Federal Constitutional

Rights... ccccncccccccssecesess 25

CONCLUSION ...ccccccecen60uu sss nnn 30

TABLE OF AUTHORITIES

CASES:

A-1 Contractors v. Strate, 76 F.3d 930, 935 (8th

a 19, 23, 24

Application of Konaha, 131 F.2d 737 (7th Cir. 1942) ...... 18n

Buster v. Wright, 135 F. 947 (8th Cir. 1905)......... 14, 15, 16

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) ....... 1

665 F.2d 951 (9th Cir.), cert. denied sub nom.

a 25n

FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311 (9th

Cir. 1990), cert. denied, 499 U.S. 943 (1991) ......... 25n

Hinshaw v. Mahler, 28 F.3d 106 (9th Cir.),

reported at 42 F.3d 1178 (9th Cir.), cert.

denied, 115 S. Ct. 485 (1994) 20, 21, 25n

In re Fredenberg, 65 F. Supp. 4 (D. Wis. 1946) ........... 18

lowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987) .... Passim

Johnson yv. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823) ........ 10

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982)... Passim

Montana v. United States, 450 U.S. 544 (1981) ........ Passim

: ;

Indians, 471 U.S. 845 (1985) ...............005. Passim

iii

GED 00.00csscecovisasensesussseesedeainin 8, 16

Sp es SED oo bo00066ecsnacekvernnne Passim

ida, 414 U.S. 661

EEE sccccncensabadedecnstebanwnansaeeenes 10

Santa Clara Pueblo v. Martinez, 436 U.S. 49

ocus po xndaueenetneesatdar ana 9, 9n, 14, 28

South Dakota v. Bourland, 508 U.S. 679 (1993) ............ 8

State v. Begay, 63 N.M. 409, 320 P.2d 1017, cert.

denied, 357 U.S. 918 (1958) ..........-0eeeeeeeee 18n

q Affiliated Trit f Ft. Berthold R

v. Wold Engineering, P.C., 476 U.S. 877 (1986) ......... 9

United States v. Mazurie, 419 U.S. 544 (1975) ............. 8

United States v. Wheeler, 435 U.S. 313 (1978) ............. 8

i Vv

Reservation, 447 U.S. 134 (1980) ...........66.. Passim

¢ Tribe v. Bracker, 448 U.S. 136

MED a cdcveees ¢ksa¥ptaseutntiecsa eee 8, 9

Williams v. Lee, 358 U.S. 217 (1959) .............-. 8, 9, 12

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) ...... Passim

v No. 95-36026, 1996 WL

Faasew Cem Co. Sass. BE, FOGG cc cdvdesvdscesevss 25n

iv

FEDERAL STATUTES AND REGULATIONS:

Clean Air Act, Pub. L. 88-206, 77 Stat. 400 (1963),

as renumbered and amended 42 U.S.C. §7601(d) (1995) 10n

Clean Water Act, Pub. L. 100-4, 101 Stat. 77 (1987),

as amended 33 U.S.C. § 1377 (1996 Supp.) .......... 10n

Crow Allotment Act of 1920, 41 Stat. 751, repealed

44 Stat. 886 (1926), 22 U.S.C. § 27 (1990) ......... 22, 26

Federal Insecticide and Rodenticide Act, Environmental

Protection Agency Regulations, 40 C.F.R. 171.10 ...... 10n

General Allotment Act of 1887, 24 Stat. 388

(1887), codified as amended 25 U.S.C. §§ 331

I S.C Oat ie ecUDeA A sbi dws 22, 26

Indian Civil Rights Act, Pub. L. 90-284, 82 Stat. 77

(1968), as amended 25 U.S.C. §§ 1301 et seq.

DPD :ddvddebckbGh CabGobda dct tcceses Passim

Major Crimes Act of 1885, 23 Stat. 385 (1885), codified

as amended 18 U.S.C. § 1153 (1996 Supp.) ........... 26

Safe Drinking Water Act, Pub. L. 93-523, 88 Stat. 1676

(1974), as amended 42 U.S.C. § 300h-1(e)(1991); Pub. L.

99-339, 100 Stat. 665 (1986), as amended 42 U.S.C.

elas 10n

SE A Le ee ae Te 18

RT SE RD ERI 2K 18

TRIBAL CODES:

Law and Order Code of the Shoshone Tribe of the Wind

River Indian Reservation ("Shoshone Code"), Title I,

Ch. 1; Ch. 2, §§ 1-2-1 to 1-2-5; Ch. 16, § 1-6-1 ...... 2n, 5

Vv

Law and Order Code of the Three Affiliated Tribes of

the Fort Berthold Reservation, Ch. 1, § 3.2; Ch.

4-A; Ch. 28, $§ 1.02, 1.10, 1.11... 6.6... e eee 2n, 20n

Yavapai-Apache Nation Civil Actions, Ch. 2, § 2.1 ........-. 4

Yavapai-Apache Nation Constitution, Article III, Section 1 .... 4

Yavapai-Apache Nation Tort Remedies Procedures, §5 ...... 3

Zuni Tribal Code, Ch. 6, § 1-6-1 2... 2... eee eee 2n

OTHER AUTHORITIES:

7 Op. Att'y Gen. 175 (1855)... 2. eee eee eee 13

Powers of Indian Tribes, 55 Interior Dec. 14 (1934) ........ 14

vi

In the

Supreme Court of the United States

October Term, 1996

No. 95-1872

THE HONORABLE WILLIAM STRATE, ASSOCIATE

TRIBAL JUDGE OF THE TRIBAL COURT OF THE

THREE AFFILIATED TRIBES OF THE FORT

BERTHOLD INDIAN RESERVATION; THE TRIBAL

COURT OF THE THREE AFFILIATED TRIBES OF

THE FORT BERTHOLD INDIAN RESERVATION;

LYNDON UENEDICT FREDERICKS; KENNETH LEE

FREDERICKS; PAUL JONAS FREDERICKS; HANS

CHRISTIAN FREDERICKS; JEB PIUS FREDERICKS;

GISELA FREDERICKS,

Petitioners,

Vv.

A-1 CONTRACTORS and LYLE STOCKERT,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals

for the Fighth Circuit

BRIEF OF AMICI CURIAE THE YAVAPAI-APACHE

NATION, SHOSHONE TRIBE OF

THE WIND RIVER INDIAN RESERVATION, AND

LUMMI NATION IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE'

This case poses one of the greatest threats to tribal sovereignty

in recent history. American jurisprudence characterizes Indian tribes

as “domestic dependent nations.” It is a difficult task, unique

among our legal constructs, to balance the "dependent" and the

sovereign nation aspects of that characterization. Wrestling with

these issues, a sharply divided en banc Eighth Circuit Court of

Appeals has enunciated a rule that emasculates tribal sovereignty.

It need not have done so, since the facts before it clearly supported

tribal court jurisdiction under prevailing law. If this Court sustains

the ruling below, every Indian tribe in this country will lose an

integral aspect of what makes it a sovereign government: the ability

to regulate the conduct of all persons acting within its territory and

the ability of all such persons to enjoy the benefits of a civilized

society provided by these tribal governments.

Amici Curiae Yavapai-Apache Nation, Shoshone Tribe of the

Wind River Reservation, and the Lummi Nation ("amici") are

federally-recognized Indian tribes and submit this brief in support of

Petitioners. Amici have been vested with tribal powers by treaty,

Statute, and inherent sovereignty to occupy and govern designated

reservation territories. They exercise governance over their

respective territories by providing essential governmental services,

such as police and fire service protection, emergency medical

services, and competent tribal court forums, to all persons conducting

personal and business affairs within the exterior boundaries of their

reservations.

The tribal amici have established tribal courts with jurisdiction

to adjudicate civil disputes arising within their territory. Amici

exercise tribal court jurisdiction over non-members involved in

disputes arising within their reservations to varying degrees, but each

ensures the protection of the rights of members and non-members in

‘Pursuant to Supreme Court Rule 37(3)(a), the written consent of

counsel for both the Petitioners and the Respondents is submitted for filing

herewith.

"Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16 (1831).

accordance with the Indian Civil Rights Act ("ICRA"). The

availability of a tribal court forum to resolve disputes arising within

the Tribes’ territorial jurisdiction is of crucial importance to members

and non-members alike. Significantly, Petitioners do not seek

exclusive jurisdiction,‘ and amici do not urge a rule that would

require such a result. Neither Petitioners nor amici seek authority to

exercise civil jurisdiction over non-members in an arbitrary, abusive,

or discriminatory manner.’ However, the ability to exercise

jurisdiction over disputes arising within their territory, regardless of

the membership status of the litigants or parties involved directly in

the dispute, is an essential attribute of tribal sovereignty and self-

government. No other government in our federal system is deprived

of the ability to establish and enforce rules governing the territory

over which it has responsibility based on the race of persons. Tribal

governments should be treated no differently. Such a fundamental,

essential power cannot be diminished unless Congress affirmatively

divests tribes of the power to exercise such jurisdiction over particular

matters.

25 U.S.C. $$ 1301 et seq. (1996 Supp.).

“The Three Affiliated Tribes of the Fort Berthold Indian Reservation

("Three Tribes") Tribal Court seeks only concurrent, not exclusive,

jurisdiction over the tort action. Petition for a Writ of Certiorari at 6 n.7.

‘Indian tribes exercise their jurisdiction responsibly and in accordance

with the law. Amici refer this Court to the 1985 survey of tribal courts

compiled by the Bureau of Indian Affairs, the federal agency designated to

oversee tribal relations with the federal government, regarding tribal court

systems. This 1985 survey documents tribal compliance with the Indian

Cwil Rights Act, particularly the equal protection and due process

requirements of the Act, and the varying degrees to which tribes exercise

jurisdiction over non-members. Some tribes choose to limit their courts’

jurisdictional reach to tribal members. Others exercise jurisdiction over

both members and non-members. See Law and Order Code of the Three

Affiliated Tribes of the Fort Berthold Reservation, Ch. 1, § 3.2; Law and

Order Code of the Shoshone Tribe of the Wind River Indian Reservation

("Shoshone Code"), Ch. 2, §§ 1-2-1 through 1-2-5. Some provide for the

inclusion of non-members in their jury pools. See Shoshone Code, Ch. 16,

§ 1-6-1; Zuni Tribal Code, Ch. 6, § 1-6-1.

Each of the amici has large numbers of non-members residing

and/or visiting within the exterior boundaries of its reservation.

Members and non-members mingle inextricably at work, at home, in

commerce, anc in transit. They live under the same roofs and on

adjoining lots. Not least because it is governmentally inefficient and

politically counteiproductive to treat members and non-members

differently, each of the amici has chosen to exercise its jurisdiction

over such non-members and to provide governmental services to

them. The specific interest of each amicus tribe follows:

The Yavapai-Apache Nation. The Yavapai-Apache Nation

occupies and governs four reservation parcels located in northern

Arizona. Approximately 15% of the population residing within the

exterior boundaries of the Reservation are non-members. The

Yavapai-Apache Nation operates various commercial enterprises on

its Reservation, including the Cliff Castle Casino and Montezuma

Visitors’ Center, which employ non-member residents and attract

many non-member patrons. The Yavapai-Apache Nation provides

territorial governance that benefits all persons who enter the

Reservation, regardless of membership or residency status.

Specifically, the Yavapai-Apache Nation maintains -oads, provides a

sewage system, and protects its water, environment, and other natural

resources.® Similarly, the Yavapai-Apache Nation affords police

protection, fire department services, and emergency medical

treatment for the health and safety of all persons who enter the

Reservation, regardless of membership or residency. The Nation’s

tort remedies procedure contains a limited waiver of sovereign

immunity, thereby permitting both members and non-members to sue

for damages arising from torts committed at the Cliff Castle Casino.

Yavapai-Apache Nation Tort Remedies Procedures, § 5.

The Yavapai-Apache Nation has established a competent,

impartial court system, which is available to members and non-

members involved. in disputes arising within the Reservation

‘For instance, the Nation recently achieved a Class I air quality

designation from the Environmental Protection Agency for the Reservation.

which designation benefits all persons residing and entering the

Reservation.

boundaries. The Nation’s Constitution preserves the integrity of the

tribal court system by establishing a judicial branc’, of government

composed of the Tribal Court and a Court of Appeals, with powers

that are separate and independent from the legislative and executive

branches of the tribal government. Yavapai-Apache Constitution,

Article III, Section 1. The Yavapai-Apache Nation does not exercise

civil adjudicatory jurisdiction over non-members unless the non-

member consents in writing. Yavapai-Apache Nation Civil Actions

Ch. 2, § 2.1. However, while the Nation has thus far chosen not to

exercise civil jurisdiction over non-members without their written

consent, the Tribal Court’s authority to exercise concurrent

jurisdiction over non-member litigants who voluntarily enter tribal

territory for personal or business purposes is essential to the Nation

and within its jurisdictional powers.

The Shoshone Tribe of the Wind River Reservation ("Shoshone").

The Shoshone occupy a reservation located in the State of Wyoming.

Approximately 5,676 members reside within the exterior boundaries

of the Reservation.’ Over 74% of the Reservation residents are

non-members (16,175 of 21,851). However, the vast majority of those

are non-member Indians, are married to members, work for the

Tribe either as employees or contractors, or have economic and other

relations with the Tribe, such as lessees, vendors, customers, or

recipients of tribally funded services. In addition, a significant

number of non-member non-residents frequent the Reservation and

interact with the Tribe at various levels because of its location and

economic development (mineral, agricultural, and tourism).

Regardless of membership or residency, all persons on the

Reservation receive the benefits and privileges afforded by Shoshone

governance of its territory. Specifically, the Shoshone provide roads,

courts, wildlife, management, environmental protection, water rights

administration, and pre-school education services. Shoshone laws

protect members and non-members alike in areas of domestic

relations, commercial transactions, safety, health, civil rights, housing,

"The Reservation is shared and jointly governed with the Northern

Arapaho Tribe. Figures given here include members of both Tribes subject

to the jurisdiction of the joint Tribal Court.

4

trespass, and liquor. Many of such laws are more protective of

individual and business rights than comparable state law.

The Shoshone have established a tribal court system, governed

by a comprehensive Law and Order Code. The Law and Order Code

delineates the court’s authority, which provides a forum for members

and non-members to resolve disputes arising on the Reservation in

accordance with equal protection and due process requirements of

the ICRA. Law and Order Code of the Wind River Reservation,

Title 1, Ch. 1. In fact, non-Indians have demonstrated extraordinary

confidence in the Tribal Court: in 1995, non-Indians commenced 116

civil actions in the Tribal Court (while non-Indians were made

defendants in only 19 cases). Non-Indian parties before the Tribal

Court have included some of the largest oil companies in this

country, the State of Wyoming, and nationwide lenders. Thus,

Shoshone asserts an interest in this case on behalf of its members

and the non-members who depend on the Shoshone Tribal Court to

administer justice throughout the Reservation.

The Lummi Nation. The Lummi Reservation is located on the

coast of the State of Washington. Approximately 49% of the

population residing within the exterior boundaries of the Lummi

Reservation are non-members. The Lummi government provides

various services that benefit all persons who enter the Reservation

for domestic or commercial purposes, regardless of membership or

residency. Because the Lummi Reservation is situated on coastal

waters, the tribal government expends a large portion of its

governmental resources to preserve the Reservation’s natural

resources. The Nation commits substantial governmental resources

to administer and protect the Reservation’s surface and ground water

resources, which are particularly vulnerable to degradation and

depletion ue to the contamination of surface waters by up-stream,

off-reservation activities; by salt water intrusion due to the intruding

coastal waters; and by over-development of fee lands owned by non-

members. The laws of the Lummi Nation require the involvement

and participation of non-members in the tribal government's

management of its water resources, because non-member use, both

on- and off-reservation, has tremendous impacts upon the on-

reservation water resources. For example, the Lummi Nation’s

Water and Sewer Code provides that two of the five members of the

5

Lummi Water and Sewer Board be elected by a vote of all

Reservation residents, regardless of tribal membership. Currently,

two non-Indians serve on this Board.

The Lummi Nation provides a competent court system, availabie

to members and non-members alike. The Nation ensures the

integrity of its court system through its Law and Order Code and

Civil Rules of Procedure. Thus, the authority of the Lummi Tribal

Court to exercise concurrent jurisdiction over non-member litigants

who voluntarily enter tribal territory for personal or business

purposes is essential to the Lummi Nation and within its

jurisdictional powers.

SUMMARY OF ARGUMENT

The Eighth Circuit’s decision flies in the face of one hundred

and fifty years of decisions by this Court preserving tribal sovereignty.

(Pt. I). Over the years, this Court’s determinations of tribal

jurisdiction have steadfastly recognized one fundamental rule: civil

jurisdiction over the activities of non-members within the exterior

boundaries of reservation lands lies with the tribe designated to

occupy and govern that territory, unless expressly divested by

Congress in a specific treaty or federal statute. In perpetuating this

fundamental rule, the Court continues to reaffirm the territorial

nature and scope of tribal powers that have existed, uninterrupted,

since time immemorial, whether vested by treaty, statute, or inherent

sovereignty. These territorial powers give tribes the authority to

exercise legislative and judicial civil jurisdiction over non-members

within the boundaries of the reservation, unless Congress

affirmatively withdraws a specific tribal power that divests tribes of

jurisdiction over a particular matter.

In this case, the Three Affiliated Tribes of the Fort Berthold

Reservation ("Three Tribes") have the requisite territorial interest in

and power to exercise civil jurisdiction over tort actions involving

non-members on the state highway in question. That highway was

established on tribal trust lands under a federal right-of-way statute

that did not divest tribes of the power to adjudicate disputes

involving tort actions arising on the state highway. The mere fact

that the underlying incident involved non-members is not controlling.

6

Thus, the Three Tribes have authority to exercise concurrent civil

jurisdiction over Mrs. Fredericks’ tort action.

The Eighth Circuit’s decision stands opposed to the full weight

of this Court’s historical view of tribal jurisdiction. Given the

particular facts of the case below, it is wrongly decided under its

primary authority, Montana v. United States, even assuming (which

amici do not) that the Eighth Circuit’s reading of Montana is correct.

(Pt. IIA). First, the facts in this case amply meet both of Montana’s

so-called "exceptions" and the Eighth Circuit’s new hybrid test, since

they more than sufficiently implicate a "valid tribal interest." Thus,

on the facts alone, this case meets all of the articulated standards for

tribal jurisdiction and should have been decided differently.

Finally, even were this case rightly decided under the Eighth

Circuit’s view of Montana, that view is incorrect. (Pt. IIB). Montana

has been interpreted in a far more expansive manner than necessary.

Montana does not stand as controlling precedent for all

determinations of tribal civil jurisdiction over non-members.

Unfortunately, the unnecessarily broad language used to achieve the

Court’s relatively narrow holding has led many courts to misinterpret

and misapply Montana in this manner, creating confusion and

uncertainty in the law and a virtual paralysis of tribal governments’

ability meaningfully to protect reservation citizens and resources.

Montana did not arise in a vacuum, and it cannot be applied

Slavishly every time a non-tribal member is brought before a duly

constituted tribal court. This Court should clarify its earlier holding

by replacing the ever-expanding myth of Montana with a more

narrowly stated rule properly reflecting the facts of that case and

precedent. If such a reconciliation is impossible, amici submit that

Montana must be re-examined and replaced with a rule that frankly

acknowledges tribal jurisdiction over all persons in the tribal territory

as the presumptive norm.

ARGUMENT

POINT I

MORE THAN A CENTURY AND A HALF OF SUPREME

COURT PRECEDENT RECOGNIZES THAT, ABSENT

7

CONGRESSIONAL DIVESTITURE OR VERY NARROW

INSTANCES OF JUDICIAL LIMITATION, TRIBES RETAIN

BROAD INHERENT SOVEREIGN POWERS OVER ALL

PERSONS AND ACTIVITIES WITHIN THEIR RESERVATION

TERRITORIES

This Court historically has recognized the territorial scope of

tribal jurisdiction and has established a fundamental rule of tribal

sovereignty: tribes have the power to exercise jurisdiction over all

persons within their reservation boundaries, including non-members,

unless Congress affirmatively withdraws specific tribal powers in a

treaty or a federal statute. For more than one hundred and fifty

years, it has been recognized that tribes retain the powers of

government that they possessed at the time of their incorporation

into the United States. Tribes did not lose their inherent powers

upon becoming "domestic dependent nations." Worcester v. Georgia,

31 U.S. (6 Pet.) 515, 557 (1832). Specifically, tribes have the inherent

sovereign power to govern "both their members and their territory."

i tates v. Wheeler, 435 U.S. 313, 323 (1978)(emphasis added),

quoting United States v. Mazurie, 419 U.S. 544, 557 (1975), citing

Worcester v. Georgia, 31 U.S. at 557; see also lowa Mutual Ins. Co.

v. LaPlante, 480 U.S. 9, 14 (1987). Inherent territorial powers also

give tribes the authority to exercise jurisdiction over non-members

within reservation boundaries. Merrion v. Jicarilla Apache Tribe, 455

U.S. 130 (1982); W ton_v. Confe

Indian Reservation, 447 U.S. 134 (1980); Williams v. Lee, 358 U.S.

217 (1959); see also New Mexico v. Mescalero Apache Tribe, 462

U.S. 324 (1983); White Mountain Apache Tribe v. er, 448 U.S.

136 (1980).

Time and again, this Court has reaffirmed these fundamental

Indian law principles. The Court has recognized that only Congress,

in appropriate circumstances, can abrogate inherent tribal sovereign

power, and it may do so only by express and unambiguous statement.

Williams v. Lee, 358 U.S. at 223; Wheeler, 435 U.S. at 322-23; South

Dakota v. Bourland, 508 U.S. at 679, 687 (1993) (citations omitted).

It is the role of Congress, not the courts, to alter tribal sovereign

authority. Tribal powers exist at the sufferance of Congress.

Wheeler, 435 U.S. at 323. This Court will not find that Congress

8

divested tribes of inherent sovereign powers unless the congressional

act contains an explicit divestiture. Santa Clara Pueblo v. Martinez,

436 U.S. 49, 72 (1978). Indeed, this Court has “consistently guarded

the authority of Indian governments over their reservation. If this

power is to be taken away from them, it is for Congress to do.”

Williams v. Lee, 358 U.S. at 223.

In determining whether Congress intended to abrogate tribal

powers, this Court requires deference to Congress’s "longstanding

policy of encouraging tribal nr anger erry wed 480 US.

at 14, citing hre: : [ ,

Wold Engineering. P.C.. 476 US. 877, 890 (1986); Merrion, 455 USS.

at 138; White Mountain Apache Tribe v. Bracker, 448 U.S. at 143-44

and n.10; Williams v. Lee, 358 U.S. at 220-21. A “proper respect for

both tribal sovereignty itself and for the plenary authority of

Congress in this area cautions that [this Court] tread lightly in the

absence of clear indications of legisle*ive intent." Santa Clara

Pueblo, 436 U.S. at 60. Congress has the ability to act expeditiously

to address any concerns it may have regarding the exercise of tribes’

sovereign powers, and Congress should be left free to make these

important federal policy determinations.

As this Court has recognized, Congress has occasionally stepped

in to protect individual liberties and overriding national interests on

Indian reservations. Directly relevant here, and discussed infra at 28-

30, Congress intervened in tribal governance when it enacted the

Indian Civil Rights Act, which imposed upon tribes most of the

protections contained in the Bill of Rights. 25 U.S.C. §§ 1301 et seq.

(1996 Supp.).* Congress also has extended various environmental

laws and regulations to reservations, thereby protecting national

“Acknowledging the protections afforded by the Act to individuals

subject to tribal court or regulatory jurisdiction, this Court has recognized

that Congress views the administration of justice through tribal forums as

an essential attribute of tribal sovereignty. Thus, Congress did not intend

to waive tribal sovereign immunity from suit in the Act so that claims under

the Act could be heard in federal courts, but, rather, intended to have

tribal forums adjudicate such claims. Santa Clara Pueblo, 436 U.S. at 58-

59.

interests while reaffirming tribal sovereign authority.’ However,

based upon the federal government’s policy promoting tribal self-

government and the tribal governments’ initiatives to develop

administrative and personnel resources capable of undertaking the

responsibilities of comprehensive territorial management, even

Congress has favored a “hands off" approach with regard to tribal

sovereignty.”

Notwithstanding Congress’s sole authority to divest tribes of their

sovereign powers, this Court has, in three unique circumstances,

determined that, by virtue of tribes’ dependent status, the exercise of

specific tribal sovereign powers is not "inherent" to tribes because the

exercise of these particular powers is "necessarily inconsistent" with

preserving the sovereignty of the United States. Colville, 447 U.S. at

153-54; Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 209

(1978). First, by submitting to the overriding sovereignty of the

United States, Indian tribes necessarily gave up their power to

alienate the land they occupy to non-Indians without federal consent.

Oneida indian Nation v. County of Oneida, 414 U.S. 661 (1974);

Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, 574 (1823). Second,

tribes also gave up their right to enter into direct commercial or

governmental relations with foreign nations. Worcester v. Georgia,

31 U.S. at 559. More recently, this Court added a third inherent

*See 33 U.S.C. § 1377 (permits Environmental Protection Agency to

approve Clean Water Act programs for tribal governments); 42 U.S.C. §

7601(d) (Clean Air Act expressly authorizes Environmental Protection

Agency to treat tribes as states for federal air protection programs, and

tribal jurisdiction over air resources encompasses all lands within

reservation boundaries); 42 U.S.C. §§ 300j-11(a)(1), 300h-I(e) (Safe

Drinking Water Act allows tribes to be treated as states, which permits the

Environmental Protection Agency to approve tribes’ primary enforcement

responsibility for public water systems and underground injection

programs); 40 C.F.R. 171.10 (under Federal Insecticide and Rodenticide

Act, the Environmental Protection Agency may approve tribes’ authority

to operate pesticide application certification programs).

‘Indeed, Congress has acted affirmatively and decisively to protect

tribal sovereignty by making clear that tribes have authority to prosecute

and convict non-member Indians. 25 U.S.C. §§ 1302(2), (3), amd (4) (1996

Supp.)

10

limitation on tribal powers: by submitting to the overriding

sovereignty of the United States, tribes gave up the right to prosecute

non-Indians in tribal courts that do not accord the full

protections of the Bill of Rights. Oliphant, 435 U.S. at 210.

recognized tribal authority to exercise civil jurisdiction, regulatory and

adjudicatory, over non-members who choose to enter the reservation

to conduct personal or business affairs. In the case at bar, the

Eighth Circuit majority appears to eliminate congressional desires

from the equation. Specifically, it seems to urge a per se rule, that

tribal jurisdiction over non-members has been implicitly divested by

virtue of conquest. This cannot be a proper reading of this Court’s

precedent or congressional intent. Conquest had been accomplished

fully by the time Worcester was decided, yet Chief Justice Marshall

recognized and firmly upheld tribal sovereignty and jurisdiction over

any person within tribal territory. Worcester v. Georgia, 31 U.S. at

560-62. It is true, as this Court ruled in Montana, that a tribe may

not, by regulation, essentially exclude non-members from lands they

"This Court has made clear that tribes are dependent upon, and

subordinate to, only the federal government; thus, tribal powers may not be

lumited on the ground that state interests are frustrated or undermined by

the exercise of tribal power. Colville, 447 U.S. at 154.

"Montana v. United States, 450 U.S. 544 (1981), is discussed in detail

infra at Point II.

ll

own in fee, or otherwise act contrary to overriding national interests.

Nonetheless, tribes rarely should be found to lack proper authority

to govern their reservations, as their essential power has not been

disturbed by Congress and is not per se inconsistent with overriding

national interests.

A. Tribal Adjudicatory Jurisdiction. This Court has often upheld

the exercise of tribal adjudicatory jurisdiction over non-members

within reservation boundaries. For instance, in Williams vy. Lee, 358

U.S. 217 (1959), the question was whether the Arizona state court or

the Navajo tribal court had jurisdiction over a non-Indian’s suit to

enforce a debt owed from purchases made on the Reservation.

Drawing upon the principles of tribal sovereignty established in

Worcester v. Georgia, the Court recognized the "right of reservation

Indians to make their own laws and be ruled by them,” concluding

that the Navajo Nation had the authority to adjudicate disputes

arising from the on-reservation affairs of non-Indians. 358 U.S. at

218-23. Therefore, where the non-Indian transacted business with an

Indian on the reservation, the tribe had the power to exercise civil

jurisdiction over the dispute; it was "immaterial" that one of the

parties was a non-Indian. Id. at 223. Finding no congressional action

explicitly divesting tribal authority, this Court held that the Navajo

tribal court had jurisdiction over the dispute. Id. at 222.

Two recent cases, while offering some guidance on tribal

jurisdiction over civil actions arising within the reservation involving

non-members, held that the existence of tribal court jurisdiction was

to be determined by the tribal court in the first instance. In National

Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845

(1985), an action was brought against a public school by the guardian

of a Crow tribal member who was struck by a vehicle on school

grounds. The school was located on fee land owned by the State

within the reservation boundaries. This Court analyzed the Crow

Tribe’s powers and concluded that the question of whether the Crow

Tribe had the power to exercise civil subject matter jurisdiction over

non-Indians in a case of this kind is not automatically foreclosed by

12

Oliphant.” Unlike Oliphant, Congress had enacted no legislation

granting federal courts jurisdiction over on-reservation civil disputes

between Indians and non-Indians. 471 U.S. at 854. This Court drew

upon an 1855 opinion of Attorney General Cushing:

Now, it is admitted on all hands . . . that Congress has

‘paramount right’ to legislate in regard to this question, in

all its relations. Jt has legislated, in so far as it saw fit, by

taking jurisdiction in criminal matters, and omitting to take

jurisdiction in civil matters. . . . By all possible rules of

construction the inference is clear that jurisdiction is left to the

Choctaws themselves of civil controversies arising strictly within

the Chocktaw Nation.

National Farmers, 471 U.S. at 855, quoting 7 Op. Att’y Gen. 175,

179-81 (1855)(emphasis added). This Court went on to observe that,

"[iJn the civil field, however, Congress has never enacted general

legislation to supply a federal or state forum for disputes between

Indians and non-Indians in Indian country." Id. at 855 n.17 (citations

omitted). In addition, while treaties between the federal government

and Indian tribes sometimes required tribes to surrender non-Indian

criminal offenders to state or federal authorities, "Indian treaties did

not contain provision for tribal relinquishment of civil jurisdiction

over non-Indians." Id. (citations omitted).

Similarly, in lowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987),

this Court abstained from determining tribal court jurisdiction but

gave direction to the tribal court on the governing law. In a strong

recognition of tribal power, the Court observed that civil jurisdiction

over non-Indian activities "presumptively lies in the tribal courts

unless affirmatively limited by a specific treaty provision or federal

statute.” 480 U.S. at 18. “Because the Tribe retains all inherent

attributes of sovereignty that have not been divested by the Federal

Government, the proper inference from silence . . . is that the

sovereign power . . . remains intact." Id., citing Merrion, 455 U.S. at

‘Oliphant held that Indian tribes do not have “inherent” powers to

prosecute and convict non-Indians except in a manner acceptable to

Congress. 435 U.S. 191 (1978). See infra at 10-11, 26, 28 0.27.

13

149 n.14; see also Santa Clara Pueblo, 436 U.S. at 60 ("proper respect

both for tribal sovereignty itself and for the plenary authority of

Congress in this area cautions that we tread lightly in the absence of

clear indications of legislative intent").

B. Tribal Regulatory Jurisdiction. Tribes also have a long-

recognized right to exercise regulatory jurisdiction over the conduct

of non-members on tribal trust lands. In

Confederated Tribes of Colville Indian Reservation, 447 U.S. 134

(1980), this Court upheld a cigarette tax assessed by the Colville,

Makah, and Lummi Tribes on non-member purchases. 447 U.S. at

152-54. Analyzing the Tribes’ powers, the Court first recognized the

longstanding principle of tribal sovereignty that tribes may exercise

jurisdiction over non-members conducting business affairs on

reservation lands. Id. In this regard, the taxing power of tribes is "an

essential instrument of self-government and territorial management."

Id. at 153; see also Merrion, 455 U.S. at 141. Quoting an influential

1934 Interior Solicitor’s opinion, the Court observed that, in the

absence of congressional action to the contrary, the tribes’ sovereign

power to tax "may be exercised over members of the tribe and non-

members, so far as non-members may accept privileges of trade,

residence, etc., to which taxes may be attached as conditions."

Colville, 447 U.S. at 153, quoting Powers of Indian Tribes, 55 Interior

Dec. 14, 46 (1934). Turning then to the search for any potential

divestiture, the Court found none: "[{T]he widely held understanding

within Federal Government has always been that federal law to date

has not worked a divestiture of Indian taxing power." 447 U.S. at

153.

In reaching its conclusion, the Colville Court adopted the

reasoning of Buster v. Wright, 135 F. 947 (8th Cir. 1905), which

involved the tribal regulation of non-members on fee lands within

reservation boundaries. In Buster, deeds to individual lots in Indian

territory had been granted to non-Indian residents, who incorporated

cities and towns. As a result, Congress had expressly prohibited the

Tribe from removing these non-residents from the reservation. Even

though the ownership of land and the creation of local governments

by non-Indians established their legitimate presence on Indian land,

the court upheld the Tribe’s retained power to tax:

14

Neither the United States, nor a state, nor any other

sovereignty loses the power to govern the people within its

borders by the existence of towns and cities therein

endowed with the usual powers of municipalities, nor by the

ownership nor occupancy of the land within its territorial

jurisdiction by citizens or foreigners.

135 F. at 952. Working from this premise, the Colville Court also

rejected the contention that tribal taxing powers have been "implicitly

divested" by virtue of the tribes’ "dependent status":

Tribal powers are not implicitly divested by virtue of the

tribes’ dependent status. This Court has found such

divestiture in cases where the exercise of tribal sovereignty

would be inconsistent with the overriding interests of the

National Government, as when the tribes seek to engage in

foreign relations, alienate their lands to non-Indians without

federal consent, or prosecute non-Indians in tribal courts

which do not accord the full protection of the Bill of Rights.

... In the present cases, we can see no overriding federal

interest that would necessarily be frustrated by tribal taxation.

And even if the State’s interests were implicated by the

tribal taxes, a question we need not decide, it must be

remembered that tribal sovereignty is dependent on, and

subordinate to, only the Federal Government, not the States.

447 U.S. at 153-54 (emphasis added) (citations omitted).

In Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982), this

Court followed Colville and upheld a tribal tax on non-Indians

extracting oil from reservation lands pursuant to leases with the

Jicarilla Apache Tribe. The Court recognized that the Jicarilla

Apache Tribe has the authority to regulate non-members within its

reservation boundaries based upon two separate powers: the Tribe’s

treaty "landowner" power to exclude non-members from its territory,

and the Tribe’s independent source of inherent tribal sovereign

power to raise revenues and govern its territory. 455 U.S. at 137.

The Court then examined relevant congressional action and found no

explicit congressional divestiture of the Tribe’s powers that gave rise

to the power to tax. The mere fact that the Tribe gave up certain

15

"landowner" rights in the leases was insufficient to establish a

divestiture of the Tribe’s power to tax, particularly since a tribe’s

power to tax derives from its sovereign power to govern and manage

its territory. Id. at 141. Again citing Buster v. Wright, the Court

held that Congress’s alienation of reservation land from tribal

“ownership” did not divest the Tribe of its sovereign power to tax that

land to raise revenues to support its territorial governance. Id.

In New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983),

this Court upheld the Tribe’s exclusive authority to regulate hunting

and fishing by all persons on the reservation, including non-members.

The Tribe had treaty and inherent sovereign powers to regulate

reservation resources, including its wildlife. Id. at 337. Significantly,

the Court relied upon Montana, stating: "As to ‘lands belonging to

the Tribe or held by the United States in trust for the Tribe,’ we

‘readily agree’ that a Tribe may ’prohibit non-members from hunting

or fishing . . . [or] condition their entry by charging a fee or establish

bag and creel limits.” Id. at 331, quoting Montana, 450 U.S. at

557.% The Court further determined that Congress had not

divested the Tribe of jurisdiction. To the contrary, federal policy

favored tribal self-government, which included the exclusive

management of the Reservation wildlife resources.

In sum, Indian tribes are sovereign governments with vast

responsibility to provide an array of governmental services to both

tribal members and non-members on reservations. Since the early

1800s, this Court properly has been careful to limit the instances of

intrusions into tribal inherent authority, thereby providing tribes the

necessary latitude to provide ‘those governmental services and

protections. Absent clear congressional intent to limit tribal

sovereignty, or an overriding national interest as that term has been

previously defined by this Court, tribes retain inherent sovereign

authority over their territory and all persons within it.

‘In a distinction amici believe was dictum and unnecessary to decide

the case, see Point II infra, this Court distinguished Montana, stating that

Montana does not control questions concerning the exercise of tribal

jurisdiction over non-members on tribal lands or tribal trust lands, because

that decision involved fee lands that were alienated from tribal ownership.

462 U.S. at 330.

16

POINT II

THE DECISION OF THE COURT BELOW

IS INCONSISTENT WITH THIS

COURT’S HISTORIC TREATMENT OF

TRIBAL JURISDICTION AND MUST

BE REVERSED

Correct application of the foregoing authorities compels the

conclusion that the Tribal Court of the Three Tribes has jurisdiction

to hear Mrs. Fredericks’ action against A-1 Contractors and Lyle

Stockert. Of equal concern to the amici, proper construction of the

relevant authority compels rejection of the Eighth Circuit’s stingy

view of tribal jurisdiction and a reaffirmation of the crucial role tribal

courts play in the tribes’ sovereign right and responsibility to protect

all people with their territory.

A. On Its Facts, This Case Was Wrongly Decided."

This Court need not and should not forge new ground in the

annals of tribal jurisdiction. There is no need to create or resort to

any broad rule. Based wholly on existing authority as interpreted by

the Eighth Circuit, the Eighth Circuit erroneously applied that law to

these facts.

Plaintiff Fredericks, although a non-member, is the widow and

mother of enrolled tribal members and a longstanding resident of the

Reservation. To put Mrs. Fredericks outside the protection of her

family’s tribe is a particularly odd and sad result. She and her tribal

member children filed suit to recover damages for personal injuries

sustained when Mrs. Fredericks’ automobile collided with a gravel

truck. The truck was driven by a non-member employee of a non-

tribal company doing business on the Fort Berthold Reservation

pursuant to a subcontract with a wholly-owned tribal entity. The

“Amici leave the laboring oar on this argument to Petitioners.

Nonetheless, the facts of this case cry out so loudly for the assertion of

tribal jurisdiction that amici are compelled at least to state the argument,

no matter how sketchily.

17

automobile accident occurred within the Fort Berthold Reservation

on a state highway constructed on the Three Tribes’ trust lands

pursuant to a right-of-way grant by the Secretary of the Interior

pursuant to 25 U.S.C. § 323.

Looking first to congressional expression, Congress clearly has

not acted to divest the Three Tribes of their powers to exercise civil

jurisdiction over tort actions of this nature. The only conceivable

congressional act implicated in this case is the federal statute that

authorized the Secretary of the Interior to grant the right-of-way to

establish the state highway where this accident occurred. This statute

effected no divesture. Its sole function was to authorize the

Secretary to grant rights-of-way across tribal trust lands, subject to

conditions prescribed by the Secretary and the consent of the tribe.

25 U.S.C. §§ 323, 324 (1983). Nothing in this scheme explicitly or

implicitly divests a tribe of its sovereign right to exercise jurisdiction

over land that remains wholly tribal territory."°

The Eighth Circuit held that, despite the lack of express

congressional divestiture, this case was governed by Montana.'

Reading Montana to require per se general divestiture of tribal

jurisdiction absent the presence of one of two "exceptions," the court

held that the facts of the case here met neither of the exceptions and

therefore required divestiture. Amici respectfully disagree, and

believe that, even if the court correctly read Montana to establish

only two situations permitting tribal jurisdiction (a proposition with

which amici do not agree), the facts of this case positively leap off

the page in their satisfaction of those conditions.

'*Drawing upon the principles of property law, courts have compared

grants of right-of-ways with the granting of an easement, which does not

extinguish the underlying title. Application of Konaha, 131 F.2d 737 (7th

Cir. 1942); In re Fredenberg, 65 F. Supp. 4 (D. Wis. 1946); State v. Begay,

63 N.M. 409, 320 P.2d 1017, cert. denied, 357 U.S. 918 (1958). Thus, the

tile and possessory interest in the land upon which the state highway is

established pursuant to a rights-of-way remains vested in the Tribe. State

v. Begay, 63 N.M. at 412, 320 P.2d at 1019.

Montana vy. United States, 450 U.S. 544 (1981), is addressed in

greater detail infra at 21-30.

18

The Eighth Circuit read Montana to require divestiture except

in the following two instances: (1) when non-members enter

consensual relationships with the tribe or its members, through

commevcial dealing, contracts, leases, or other arrangements; or (2)

when a non-member’s conduct threatens or has some direct effect on

the political integrity, the economic security, or the health or welfare

of the tribe. A-1 Contractors v. Strate, 76 F.3d 930, 935 (8th Cir.

1996), quoting Montana, 450 U.S. at 565-66 (citations omitted).

Although amici vehemently disagree that this was intended by

Montana, nonetheless, the facts of this case meet both.

First, both plaintiffs and defendants here established domestic

and commercial relationships that clearly reflect consensual conduct.

Mrs. Fredericks resided on the Reservation for over forty years, and

enjoyed the protections and programs of tribal government. Her five

adult children, who are claimants in the action, are enrolled members

of the Three Tribes, as was her deceased husband. The defendant

contractor had entered into a contract with a tribal corporation to

perform work on a tribal community building located on the

Reservation. Its employee, the defendant driver, was driving the

company truck on reservation land when he collided with Mrs.

Fredericks. But for the defendant contractor’s consensual

relationship with the Three Tribes, this accident never would have

occurred. Thus, through marriage, motherhood, and contract, these

parties had consensually entered into personal and commercial

relationships with a strong and foreseeable nexus to the Three Tribes

and its territory.

Second, the non-members’ conduct giving rise to this action has

"some direct effect" on the general health and welfare of the Three

Tribes. The Three Tribes surely have a health and safety interest in

all persons’ operation of motor vehicles on highways situated on the

Reservation and their consequent liability. The ability of the Tribal

Court to adjudicate an action relating to the operation of motor

vehicles on highways running through the Reservation directly affects

the Three Tribes’ sovereign interests and responsibility to protect the

19

health and safety of its members. This sovereign interest equally

extends to non-member residents and those who are compelled to

enter the Reservation under contract, in addition to all those who

voluntarily enter the Reservation for domestic or commercial

purposes. In an on-reservation accident, tribal police and emergency

vehicles typically, will respond to secure the roadway and transport

the victims, regardless of race. Other tribal services likely would be

required, such as counseling or temporary housing. And, here, tribal

members and tribal programs certainly will be involved in Mrs.

Fredericks’ rehabilitation and future care, as she is inextricably

involved in tribal life. Thus, the accident giving rise to this tort

action directly affects the Three Tribes’ interest in protecting the

health and welfare of all those who enter its sovereign territory.

The Ninth Circuit recently applied the Montana factors

differently--and correctly--on virtually identical facts. In Hinshaw v.

Mahler, 28 F.3d 106 (9th Cir.), cert. denied, 115 S. Ct. 485 (1994), ”

the court upheld tribal court jurisdiction over a tort action arising

from an on-reservation automobile accident. The individuals

involved in the accident resided on the Reservation but were not

members of the Confederated Salish and Kootenai Tribes of the

Flathead Reservation. 42 F.3d at 1179-80. A tribal member and a

non-member brought suit in tribal court, asserting wrongful death

and survivorship claims on behalf of their deceased son against the

non-Indian tortfeasor. Id. at 1180. The non-member defendant

challenged the tribal court’s jurisdiction. The tribal court concluded

that it had jurisdiction because the accident occurred on the

Reservation and because one of the plaintiffs was an enrolled tribal

member, id., and that determination of jurisdiction was affirmed by

the tribal appellate court and the United States District Court for the

District of Montana. Id. at 1179-80.

'SThe Three Tribes explicitly exercises its civil jurisdiction by regulating

certain civil traffic offenses on the Reservation, Code of Laws of the Three

Affiliated Tribes, Ch. 4-A, including the seasonal use on all highways on

the Reservation. Id., Ch. 28, §§ 1.02, 1.10, and 1.11.

'*This decision is published at 42 F.3d 1178 (9th Cir. 1994).

20

Affirming tribal court jurisdiction, the Ninth Circuit cited

Montana for the proposition that tribes retain civil authority over

matters affecting the tribe. Id. at 1180. Relying upon Montana and

National Farmers, the court concluded that "[{c]learly, the Tribes have

not surrendered their authority to exercise jurisdiction over civil

actions involving non-members." Id. The Ninth Circuit went on to

find that the Tribes’ ordinance specifically provided for concurrent

jurisdiction over certain civil matters on the reservation, including the

operation of motor vehicles on public roads. Id. Thus, the Ninth

Circuit correctly concluded that the Tribes’ inherent authority

supported the exercise of civil jurisdiction over the action, and the

action fell squarely within the scope of the tribal ordinance

conferring jurisdiction. The Eighth Circuit should have reached the

same conclusion.

In 1981, this Court decided Montana v. United States, 450 U.S.

544 (1981). Like a hydra on hormones, that decision has spawned

theories and "rules" that have grown far afield from their original

context and do not necessarily flow logically from it. Amici believe

that, properly viewed, Montana is but one in a long line of cases, not

a watershed rule spelling the demise of tribal jurisdiction. Because,

however, the myth of Montana has been so widely (and erroneously)

read to introduce a nearly per se rule of implicit general divestiture,

amici urge the Court to clarify what that decision in fact means.

In Montana, this Court was confronted with an apparently

unfortunate and uniquely unwise exercise of civil authority by the

Crow Tribe over non-member activities on fee lands located within

the Reservation. The Crow Tribe enacted an ordinance that

permitted members to fish and hunt on Reservation lands but

completely prohibited non-members from fishing and hunting on

Reservation lands, including land owned in fee by non-members. The

record established that the State of Montana stocked the Reservation

waters with fish, and the Tribe had not in the past challenged the

state’s "near exclusive" regulation of hunting and fishing on the fee

lands. Nothing in the record suggested, much less established, that

the prohibitory regulation related to the subsistence needs or welfare

of the Crow Tribe.

21

This Court clearly and understandably was troubled by the

inequitable and harsh prohibition imposed on non-members and drew

upon its similar concerns in Oliphant.” While recognizing that

i involved the exercise of tribal criminal jurisdiction over non-

Indians, this Court nonetheless concluded that the general

proposition of Oliphant had some bearing in the civil context: by

submitting to the overriding sovereignty of the United States, Indian

tribes necessarily give up their power to regulate non-Indian citizens

of the United States except in a manner acceptable to Congress. 450

U.S. at 565. The exercise of civil jurisdiction over non-members in

a manner that appears wholly arbitrary and capricious threatens the

sovereignty of the United States and thus cannot be recognized as an

inherent power of a dependent sovereign. Montana, 450 U.S. at 563-

66. This concept presents no departure from established theory.

The Court next examined the General Allotment Act of 1887, 24

Stat. 388, as amended, 25 U.S.C. § 331 et seq. (1983), and the Crow

Allotment Act of 1920, 41 Stat. 751, and found no explicit divestment

of the sovereign power to impose territorial regulation. 450 U.S. at

557-59. However, the Court did conclude that, by alienating the

formerly tribal land to fee status, Congress intended to grant certain

"landowner" powers of reasonable use and possession to the non-

member fee holders. Going further, the Court concluded that the

grant of those "landowner" powers necessarily divested tribes of the

treaty power to exclude, i.e., to exercise unbridled "landowner"

powers over the non-member-owned fee lands. The Court viewed

the tribal prohibition essentially as an improper exclusion of the non-

members from their lands. Id. at 559.

As the above recitation demonstrates, nothing in the actual

holding of Montana effected or requires the virtual obliteration of

tribal jurisdiction over non-members. To the contrary, Montana

reaffirmed the essential territorial aspect of tribal sovereignty by

recognizing that, in spite of a congressional limitation on a tribe's

treaty exclusion power, tribes nevertheless possess and retain inherent

sovereign jurisdiction over non-member conduct on non-member-

owned fee lands. In unnecessarily broad language that over the

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).

22

course of time has become enshrined as a wholly unwarranted rule,

the Court enumerated two instances where tribes clearly and

undisputedly retain their inherent sovereign jurisdiction over non-

members: (1) where non-members submit to tribal jurisdiction

through a “consensual relationship," and (2) where non-members’

activities on fee lands have "some direct effect" on a tribal interest in

governing its members or territory. Neither of these instances is

exhaustive, and both can be interpreted narrowly or broadly. 450

U.S. at 565-66. Amici submit that courts in general, and the court

below in particular, have gutted tribal jurisdiction by giving the

foregoing Montana factors an unnecessarily and unwarranted narrow

interpretation.

C. Montana Has Been Misinterpreted and Misapplied.

1. Montana Does Not Support The Broad Rule Attributed To It.

Amici submit that Montana has been interpreted and applied in

ways not intended by the Court or warranted oy its facts. The

resulting myth of Montana has caused confusion and great

uncertainty. Respondents and the court below contend that this

Court established a new rule of automatic, per se general divestiture.

Articulating its view of that rule, the court below flatly maintains that

"inhcrent sovereign powers do not extend to the activities of non-

members." A-1 Contractors, 76 F.3d at 939. In this view,

congressional action (or failure to act) is, for all practical purposes,

irrelevant: a tribe may exercise civil jurisdiction over non-members

only if it satisfies one of the two limited Montana “exceptions.” Id.

The Eighth Circuit frankly admits that its interpretation of

Montana "create[s} tension" with other of this Court’s decisions,

including lowa Mutual, Williams, and Merrion. 76 F.3d at 938-39.

To reconcile this tension, the Court fashioned a new, comprehensive,

and integrated rule:

[A] valid tribal interest must be at issue before a tribal court

may exercise civil jurisdiction over a non-Indian or

nonmember, but once the tribal interest is established, a

presumption arises that tribal courts have jurisdiction over

23

the non-Indian or nonmember unless that jurisdiction is

affirmatively limited by federal law.

Id, at 939.

This "new" rule effectively abolishes tribal sovereignty. It

deprives tribes of bedrock, certain powers over their territory and

non-members. It proceeds from a presumption against tribal

jurisdiction rather than a presumption in favor of its existence. It

perpetuates the practice of chipping away at tribal powers by the

careless use of unnecessary language, in this case by introducing the

wholly unprecedented requirement of a “valid” tribal interest. And,

most staggeringly, it renders Congress irrelevant. This rule distorts

Montana and overturns over one hundred and fifty years of

precedent.

Montana cannot serve as a springboard for so radical a rule.

That case made no pretense of standing as controlling precedent for

all determinations of tribal civil jurisdiction over non-members.

Were Montana intended to be so read, lowa Mutual and National

Farmers would have been the perfect places to say so. Instead,

rather than casting a determinative shadow over those cases,

Montana appeared as minor, supporting authority.” At neither its

birth nor in later applications did this Court envision Montana as

establishing a new rule of general applicability for all determinations

of tribal jurisdiction over non-members. Rather, the lower courts

have extended it far beyond its original contours and intent. Thus,

as matters now stand, Montana can be cited to support anything and

everything and must be clarified.”

2. Montana Fundamentally Was Concerned With Protecting

Non-Members’ Federal Constitutional Rights.

In order to assess what Montana really stands for, it is instructive

to look closely at the subtext of what was really going on. Montana

presented the Court with a troubling factual situation. A tribal

regulation regulated different classes of on-reservation landowners

differently: tribal members living on trust land were permitted to

hunt and fish on their property; non-tribal members owning on-

reservation fee land were entirely prohibited from hunting and

fishing, even on the land they owned.

In federal constitutional terms, this apparent discriminatory

treatment violated the non-members’ Fourteenth Amendment equal

protection rights. Tribes, however, are not bound by the Fourteenth

“This confusion is manifest from the wildly varying analyses applied

by a single circuit since issuance of the Montana decision. In Confederated

Salish & K : Tri

665 F.2d 951 (9th Cir.), gert.

denied sub nom. Polson v. Confederated Salish & Kootenai Tribes, 459

?\1p lowa Mutual, this Court cited Montana as support for the general

proposition that tribal authority over the activities of non-Indians on

reservation lands is an important part of tribal sovereignty. 480 U.S. at 18.

In National Farmers, Montana appeared only in a footnote, as an example

of the type of decisions this Court has made regarding the power of tribes

to regulate the affairs on non-Indians on reservation lands. 471 U.S. at 851

n.12.

24

U.S. 977 (1982), the Ninth Circuit interpreted Montana to uphold the

tribes’ power to regulate the conduct of non-Indians owning land bordering

the lake beds designated as part of the reservation in the 1855 Treaty with

the tribes. In Hinshaw vy. Mahler, 42 F.3d 1178, 1180 (9th Cir.), cert.

denied, 115 S. Ct. 485 (1994), the court upheld the tribe's exercise of

jurisdiction over a tort action in a case virtually identical to the case at bar,

relying on Montana as support for the proposition that "[c}learly, the Tribes

have not surrendered their authority to exercise jurisdiction over civil

actions involving non-members.” In Yellowstone County v. Pease, No. 95-

36026, 1996 WL 512363 (9th Cir. Sept. 11, 1996), the court relied on

Montana (and the Eighth Circuit's decision below) to deny tribal court

subject matter jurisdiction over an action challenging a county's right to

unpose property taxes on reservation land held in fee by a member of the

tribe. Id. 1996 WL 512363, at °5, citing

905 F.2d 1311, 1314 (9th Cir. 1990), cert. denied, 499 U.S. 943 (1991).

25

Amendment (or, indeed, by the Constitution at all).” Faced with

an unacceptable deprivation of United States citizens’ constitutional

rights, this Court had to find a way to protect those rights.

The Court had faced an identical concern in Oliphant, where,

because of the non-applicability of the U.S. Constitution to tribes, the

Tribal Court was not required to and did not provide criminal

defendants with certain constitutional safeguards that federal and

state courts provide. Unwilling to permit the Tribal Court to deprive

non-member citizens of protections analogous to their federal

constitutional rights, the Court found that Congress had intruded on

the sovereignty of tribes in the criminal context by asserting federal

jurisdiction over certain crimes, such as the Major Crimes Act, 18

U.S.C. § 1153 (1996 Supp.). More squarely, the Court made it clear

that the protection of national citizens under the Bill of Rights,

especially in the context of criminal matters, is a paramount national

interest, and that any unremedied tribal action that deprives a citizen

of such a right conflicts with the “overriding sovereignty" of the

federal government. Oliphant, 435 U.S. at 209.

Faced in Montana with the Crow Tribe’s unacceptable

deprivation of the non-member residents’ equal protection right 'o

hunt and fish on their property, the Court looked to Oliphant as its

analytical model.” First it searched for a congressional enactment

that might be interpreted as withdrawing tribal power. It found such

limited authority in the General Allotment Act, 25 U.S.C. §§ 331 et

seq. (1983) and the Crow Allotment Act of 1920, 41 Stat. 751. By

these Acts, Congress had withdrawn certain tribal land and opened

it up to alienation to non-tribal members. In the Crow case, the

allotments remained within the exterior boundaries of the Crow

31 astead, tribes are bound by the Indian Civil Rights Act, which offers

constitutional-type protections and contemplates remedies in tribal forums.

Tribal Constitutions often offer sumilar protections.

*The Montana record is unclear as to why the non-members did not

challenge the Tribe's action under the Indian Civil Rights Act, as this law

prohibits tribes from denying any person the equal protection of the tribal

laws. Montana may not have been necessary if the non-members had

exhausted their tribal remedies.

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Reservation, thus remaining part of the Reservation and, as conceded

by the Court, still subject to tribal regulation.

Looking to the General Allotment Act, the Court concluded

that, by enabling non-members to obtain fee title to land within the

Reservation, Congress had indeed intended to withdraw from the

tribes certain treaty powers as “landowner” over that land.

Specifically, the Tribes’ power under the 1868 treaty to restrict or

prohibit non-Indian hunting and fishing on the Reservation, as an

exercise of their right to exclude, could no longer apply to lands held

in fee by non-Indians. Montana, 450 U.S. at 559. Notably, however,

as an exercise of their right to exclude, the only powers Congress

withdrew were the tribes’ “landowner” possessory rights, thereby

divesting tribes of their right to remove non-members from fee lands

within the reservation or to prohibit absolutely their use. The

General Allotment Act did not divest tribes of their sovereign,

regulatory power over the fee lands within their territory.

Recognizing that Congress’s divestiture of certain "landowner"

treaty powers did not withdraw tribes’ sovereign regulatory power

over non-members on fee lands within reservation territory, this

Court drew upon Oliphant to provide a means for full protection of

the United States citizens’ rights against the discriminatory tribal

regulation. Id. at 565. Specifically, Oliphant supports the general

proposition that a tribe lacks inherent power to impose

discriminatory tribal regulation, unless either non-members submit to

tribal jurisdiction through their activities or the regulation has some

rational relationship to a tribal government interest. Id, at 565-66.

Absent those circumstances, discriminatory regulation is "necessarily

inconsistent" with the overriding national interests.

___ Thus, Montana is wholly consistent with Oliphant in its view that

it is beyond the power of a tribal government to deprive a non-

member of a federal constitutional right. The real problem with

Montana is that an arguably valid concern about a violation of non-

members’ constitutional right to equal protection could have been

directly addressed without taking the drastic step of implicitly

divesting the tribe of jurisdiction in all circumstances. Amici submit

that the Court had available to it, and should have relied on,

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remedies afforded by Congress to protect the constitutional rights of

non-members.”

That remedy lay in the Indian Civil Rights Act. Rather than

appearing to strip the tribe of its inherent power to regulate the land

and landowners within its reservation territory,” the Court could

and should have held that the non-members’ complaint about

discriminatory regulation stated a claim under the ICRA and should

have been heard, in the first instance, by the tribal court.”

The ICRA serves the dual purpose of facilitating tribal

sovereignty and self-government, while insuring that tribal

government is exercised in a manner largely consistent with the

federal constitution. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 62

(1978). While the ICRA does not incorporate each and every

protection of the federal constitution, it unambiguously does impose

For the sake of this argument only, amici assume that Montana

intended to nullify the ICRA and gut tribal jurisdiction over non-members

unless the tribe could establish one of the two enumerated “exceptions.”

* Amici, like many lower courts, have frankly no idea what principle this

Court intended to announce in Montana. The case was so fact specific that

it is impossible to tell which of the several variables--unconstitutionally

discriminatory conduct, occurring on fee (versus trust) land, directed

against non-members--the Court found determinatively significant. What

amici do believe is that, given the confluence of potentially significant facts,

the use of Montana as a springboard for a broad general rule is misguided.

"Such a holding would not have conflicted with Oliphant. In Oliphant,

compelling tribal compliance with and adjudication of a claim arising under

the ICRA could not have fully protected a non-member criminal defendant,

no matter how exemplary tribal enforcement, because the ICRA does not

incorporate wholesale all of the U.S. Constitution’s criminal safeguards.

For example, even vigorous compliance with and enforcement of the }CRA

could not guarantee a non-member criminal defendant of his Fifth

Amendment right to a grand jury or Sixth Amendment right to counsel.

Thus, tribal jurisdiction would be futile and exclusive federal jurisdiction

was the only way to ensure a non-member defendant of his or her full

measure of federal constitutional protection. That is not the case with the

equal protection problem in Montana, because the ICRA does guarantee

all persons within the reservation, non-members included, the full scope of

due process and equal protection.

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on tribal governments the obligation to extend due process and equal

protection to each and every person within tribal territory. 25 U.S.C.

§ 1302(8). Thus, the discriminatory regulation challenged in

Montana was fully cognizable under the ICRA. The Court could,

and amici submit should, have remitted the case to tribal court first

for determination under ICRA.

Amici submit that egregious situations like those presented in

Oliphant and Montana can be fairly dealt with in an intellectually

honest fashion with only slight fine-tuning to the Montana "rule."

Specifically, amici submit the following test for inherent tribal

jurisdiction over non-members for activities occurring on-reservation,

whether on fee or trust lands:

Tribes are presumed to have regulatory and adjudicatory

jurisdiction over their territory and all persons living or

conducting business or otherwise present within their

territory, whether member or non-member, whether tribal

trust land or fee land, unless either (i) Congress has

expressly withdrawn the particular power asserted, or (ii) the

tribe’s exercise of such power over a non-member

necessarily would conflict with an overriding national

interest.

The potential violation of a non-member’s federal constitutional

rights would not necessarily constitute such an overriding national

interest. To the extent that such a violation may be remedied in the

tribal court in a suit under the ICRA, the national interest is served.

The tribe has a valid interest in governing its territory and persons

within its territory, and it tempers that interest by providing a tribal

remedy in a tribal forum for violation of federal constitutional rights.

Both the tribal and the national interests are served. Only (i) if the

particular case raises a constitutional violation that by definition

cannot be redressed through the ICRA (such as the right to a grand

jury), or (ii) if the particular tribe does not provide a tribal forum to

enforce compliance with the ICRA, does the “overriding national

interest" require a federal remedy for vindication of such rights.

Rather than strip the tribe of its jurisdiction over non-members, such

a theory essentially pre-empts tribal jurisdiction in favor of the

paramount federal interest.

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The above theory would satisfactorily ensure a federal forum for

egregious cases where fair justice simply cannot be done in a tribal

court, while preserving the sovereignty and integrity of the tribal

government. In the instant case, the theory also would require

reversal of the Eighth Circuit’s decision. There being no express

congressional withdrawal of tribal power, nor any overriding national

interest requiring implicit divestiture, the tribal court retained its

inherent, sovereign jurisdiction to adjudicate Mrs. Fredericks’ tort

claim against A-1 Contractors and Lyle Stockert. Amici respectfully

ask this Court to clarify Montana by adopting the above rule.

CONCLUSION

Based upon foregoing, amici curiae ask this Court to reverse the

majority decision of the court below, reject the "comprehensive and

integrated rule" applied by that court, and clarify its holding in

Montana to reaffirm the presumption of tribal jurisdiction over non-

members within the exterior boundaries of the reservation, absent

express congressional withdrawal of such jurisdiction or a clearly

paramount national interest.

Dated: Albuquerque, New Mexico

November 11, 1996

Respectfully submitted,

Susan M. Williams*

Gwenellen P. Janov

Kelly A. Skalicky

Gover, Stetson & Williams, P.C.

2501 Rio Grande Boulevard N.W.

Albuquerque, N.M. 87104

(505) 842-6961

Attorneys for the Yavapai-Apache

Nation, the Shoshone Tribe of the

Wind River Indian Reservation, and

the Lummi Nation

*Attorney of Record

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