Amicus Curiae Brief — Strate v. A-1 Contractors

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...000000000...2::ccce--c-e- mapenesnap

INTEREST OF AMICI CURIAE ....0

A. Lake County, Montana ....02.200...0. occ cccceeeeeee

B. Flathead Joint Board of Control of the Mission,

Flathead, and Jocko Valley Irrigation Districts..

SUMMARY OF ARGUMENT 2222200... ccccteeeeees

ARGUMENT

I,

Il.

nt tee eee ee ee ee eee ee eee ee eee ee ee ee eee? eee eee eee

A TRIBE’S SOVEREIGNTY, UNFOUNDED

IN THE CONSTITUTION, LIMITED TO AS-

PECTS OF SOVEREIGNTY NOT INCONSIST-

ENT WITH ITS DEPENDENT STATUS,

CONCERNING ONLY CONTROL OF IN-

TERNAL AFFAIRS, CANNOT SURVIVE

THE ABROGATION OF THE POWER TO

IED wcictesnccnsissinsneiusenabasiontinienisamnitiinmetipanside

THE CONSTITUTIONAL STRUCTURE AND

THE FUDNAMENTAL RIGHTS OF INDIVID-

UAL CITIZENS PRECLUDE THE EXERCISE

OF EXTRA-CONSTITUTIONAL SOVEREIGN

POWER BY A TRIBE OVER NONMEMBERS

IN OPEN AREAS OF A RESERVATION .........

GREET canssunrenuvcnnsansrenenuiemetntnitiggiitin

15

15

30

ii

TABLE OF AUTHORITIES

CASES Page

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

1996) en banc, cert. imi — US. —

(1996) .....-.-c-cececesescsnsessnrnsesesnseensnensenecnsssnsnsnensesesnnansnes 9

Adarand Constructors, Inc. v. Pena, —— US.

——, 115 S.Ct. 2097 (19965) ...........--.----------erennee 28

Avery v. Midlands County, 390 U.S. 474 (1968) ... 28

Ball v. James, 451 U.S. 355 (1981) ...............---... - 28, 29

Batson v. Kentucky, 476 U.S. 79 (1986) ................. 29

Brendale v. Confederated Tribes and Bands of the

Yakima Indian Nation, 492 U.S. 408 (1989) ........ passim

Clairmont v. United States, 225 U.S. 551 (1912)... 11

County of Yakima v. Confederated Tribes end

Bands of the Yakima Indian Nation, 502 U.S.

———, 112 S.Ct. GBB (1992) ...........-.2--0-0--c-e-reeeenenens 17

Sent. Reina, 495 U.S. 676 (1990) ~.................. 22, 24, 26

Edmonson v. Leesville Concrete Co. —— US.

——, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991)... 29

Fletcher v. Peck, 6 Cranch 87 (1810) ...................... 13

Hagen v. Utah, —— U.S. ——, 114 S.Ct. 958

(19D E) .nxacceoreserenencevcnsceneassvsoersncenserenecessnsnsessnsososansnnnees 5

Hinshaw v. Mahler, 42 F.3d 1178 (9th Cir. 1994),

cert. denied, —— U.S. ——, 115 S.Ct. 485

(194) .2.2.2.a.000seeeeernecrerscsssescrvsreoseseotnenesensssssesoscsceanansens 6

lowa Mutual Insurance Cos. v. LaPlante, 480 U.S.

© CIDIT) nncecocceecccncenecsesncsocesrsesvsvsnvsoscsernensecesssosennananes 8,9

Korematsu v. United States, 323 U.S. 214 (1944) .... 28

M’Culloch v. Maryland, 17 U.S. 316 (1819) ............. 25

Martin v. Hunter’s Lessee, 14 U.S. 304 (1816) ....... 25

Members of the California Democratic Congres-

sional Delegation v. E.U., 790 F.Supp. 925

| a re 27

Merrion v. Jicarrilla Apache Tribe, 455 U.S. 130

IID acecccccncccenessecsseccnescaresvsnssenescenscesneseseeseeeiesmneeineen 26

Middlemist, et al. v. Pablo, et al., 23 ILR 6141

= ee 21

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

Moran v. Council of the Confederated Salish and

Kootenai Tribes, 22 ILR 6149 (1995) ................. 6, 25

iii

TABLE OF AUTHORITIES—Continuea

Page

National Farmers Union Insurance Co. v. Crow

Tribe of Indians, 471 U.S. 845 (1985) . fend 8,9

Nevada v. Hall, 440 U.S. 410 (1979)... 25

New York v. United States, —— U.S. ——, 112

S.Ct. 2408 (1992)... 11

Oliphant v. Suquamish Indian Tribe, 435 U. s. 191

Ce a ee re 13, 21

Plyler v. Doe, 457 U.S. 202 (1982)... 26

Powers v. Ohio, —— U.S. ——, 111 S.Ct. 1364

SERRE — a re Se eee 26, 29

Red Foz v. Hettich, 494 N.W.2d 638 (1993) ... 16-17

Reynolds v. Sims, 377 U.S. 533 (1964)... ... 26, 28

Santa Clara Pueblo v. Martinez, 486 U.S. 49

SL RI ES I 0! I eee . 14, 21

South Dakota v. Bourland, 508 U.S. 679, 113 S.Ct.

Le ele SRP passim

State of Montana, et al. v. United States Environ-

mental Protection Agency, et al., —— F. Supp.

—— (D.C. Mont. 1996) ; on appeal to the Ninth

Circuit Court of Appeals, No. 96-35508 ss. 7

Tull v. United States, —— U.S. ——, 107 S.Ct.

1831 (1987) ....... SS 12

United States v. De Gross, 960 F.2d 1433 (9th Cir.

EE EE a Ne 29

United States v. Kagama, 118 U.S. 375 (1886)... 15

United States v. Unzueta, 35 F.2d 750 (D.C. Neb.

EE ee ll

Wesberry v. Sanders, 376 U.S. 1 (1964)... 25

Yellowstone County v. Pease, 96 F.3d 1169 (9th

ath it eee steal 9, 10, 12

CONSTITUTION, DECLARATION OF

INDEPENDENCE, STATUTES AND

ORDINANCES

United States Constitution, Preamble... 25

Declaration of Independence...» 23, 24-25

Clean Water Act, 33 U.S.C. §§ 1251, et seq. 4, 10

Flathead Allotment Act of — 23, 1904, 33 Stat.

Sk IEE ea el Se i a we a 2.3

iv

TABLE OF AUTHORITIES—Continued

Act of February 22, 1889, —— Stat. ——., En-

abling Act for Montana, North and South

Dakota, and Washington ........................................

Act of April 30, 1908, 35 Stat. 83...

Act of May 29, 1¥98, 35 Stat. 448 .........................

Act of May 16, 1926, 44 Stat. 453...

§ 85-7-101, et seq., Montana Code Annotated ee ad

Ordinance 36B, Flathead Tribes Law and Order

Ordinance 87A, Flathead Tribes Aquatic Lands

Conservation Ordinance ...........................--......

ADMINISTRATIVE MATERIALS

U.S. EPA Final Rule Pertaining to Treating Tribes

as States for Purposes of Water Quality Stand-

ards, 56 Federal Register 64876 (1991) ................

OTHER AUTHORITIES

Fergus M. Bordewich, Killing the White Man’s

Indian: Reinventing Native Americans at the

End of the Twentieth Century (Doubleday

1996)...

Felix S. Cohen, "Handbook of Federal Indian Lew

(1971 ed.) ......... Se eee eee ET an a

L. Scott Gould, The Consent Paradigm: ‘Tribal

Sovereignty at the Millenium, 96 Columbia Law

Review 809 (May 1996) _......................................

Rev. Martin Luther King., Jr.. A Testament of

Hope: The Essential Writings of Martin Luther

King, Jr. (James M. Washington, Ed. 1986)...

Richard Lempert, Joseph Sanders, An Invitation

to Law and Social Science: Desert, Disputes and

Distribution (Longman 1986) ............................

Toni Makkai, John Braithwaite, Procedural Justice

and Regulatory Compliance, 20 Law and Human

SD OS =

Plutarch, Lives: Themistocles (Walter J. ‘Black,

\_ ea

John Rawls, A Theory of Social Justice (Belknap

ED GD cccnntniehenniseetintneninatiiein

10, 20

22, 23

26-27

27

24

In THE

Supreme Court of the United States

Octoser 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 Reservation; THe Tripat CourRT OF THE

Fort BERTHOLD INDIAN RESERVATION; LYNDON BENE-

DICT FREDERICKS; KENNETH LEE FREDERICKS: PAUL

JONAS FREDERICKS; HANS CHRISTIAN FREDERICKS; JeB

Prius Frepericxs; GiseELA FREDERICKS,

. Petitioners,

A-1| Contractors; LYLE STOCKERT,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF OF AMICI CURIAE LAKE COUNTY, MONTANA,

AND FLATHEAD JOINT BOARD OF CONTROL

OF THE MISSION, FLATHEAD, AND

JOCKO VALLEY IRRIGATION DISTRICTS

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICI CURIAE

Pursuant to Supreme Court Rule 37.2, amici curiae file

this brief in suport of Respondents. Letters of consent

from counsel for all parties have been filed with the Clerk.

A. Lake County, Montana

Upon entry of the State of Montana into the Union’,

and after a later reorganization of counties, the State

placed within the ambit of Lake County's authority and

responsibility most of the land within the exterior bound-

aries of the federal Flathead Indian reservation, which

Congress reserved from the Nation’s public lands when it

ratified the July 16, 1855 Treaty of Hellgate on March 13,

1859 (12 Stat. 975).* In 1904, Congress enacted the

Flathead Allotment Act (“FAA”), Act of April 23, 1904,

33 Stat. 302, implementing the policies of the General

Allotment Act (“Dawes Act”) of 1887 (codified as

amended, at 25 U.S.C. §§ 331, et seq.) on the Flathead

reservation. After making allotments of land to tribal

members, Congress, in the FAA authorized nonmembers

to enter the reservation and acquire fee title to land under

the “general provisions of the homestead, mineral, and

town-site laws of the United States,” with two exceptions,

the second of which is particularly significant. First, tim-

ber lands were not subject to entry. Second, as upon the

entry of the State into the Union, Congress granted sec-

tions sixteen and thirty-six of each township within the

exterior boundaries of the reservation to the State for

1§10, Act of February 22, 1889, ——- Stat. ——.. “An Act to

Provide for the Division of Dakota into Two States and to Enable

the People of North Dakota, South Dakota, Montana, and Washing-

ton to Form Constitutions and State Governments and to be Ad-

mitted into the Union on an Equa! Footing with the Original! States,

and to Make Donations of Public Lands to Such States,” providing,

inter alia, for the grant of each section 16 and 36 within the terri-

tory of the states for school purposes, “except those embraced in

Indian, military, or other reservations . . . until the reservation shall

have been extinguished and such lands be restored to, and become

a part of, the public domain.”

2In addition, Lake County encompasses a good deal of land

beyond the exterior boundaries of the reservation and including

thousands of County residents whose status is no different from

those residing within the exterior boundaries of the reservation,

but for that single fact.

3

school purposes. FAA, § 8°. The County seat is located

in the town of Polson, within the exterior boundaries of

the reservation.

B. Flathead Joint Board of Control of the Mission, Flathead,

and Jocko Valley Irrigation Districts

In 1908, in an amendment to the FAA, Congress au-

thorized the construction of an irrigation and power project

to irrigate all irrigable allotted and unallotted lands within

the boundaries of the reservation. Act of May 29, 1908,

35 Stat. 448, amending §§ 9 and 14 of the FAA. See also

Act of April 30, 1908, 35 Stat. 83. After the completion

of the majority of construction on the irrigation project,

Congress in 1926 enacted legislation authorizing the for-

mation and operation of the Districts under state law and

their jurisdiction over all fee lands. Act of May 10, 1926,

44 Stat. 453, 464.

The Flathead Joint Board of Control (“JBC”) serves

as a central operating authority for the Mission, Flathead,

and Jocko Valley Irrigation Districts, formed in the late

1920’s and early 1930's under state law as provided by

the 1926 Act. Each entity is a local government under

Montana law. § 85-7-101, et seg., Mont. Code Ann.

(1995). The land and constituents they serve are located

within the original exterior boundaries of the reservation.

The Districts contain within their boundaries approxi-

mately 113,000 acres. Their constituency is comprised of

both tribal members and nonmembers, presumably in

roughly the same percentages as the general population.‘

3 See note 1, quoting language from Enabling Act of February 22,

1889, indicating that Congress’ grant of sections 16 and 36 of each

township would occur after “the reservation shal! have been extin-

guished and such lands restored to, and become a part of, the public

domain.”

* The Districts and JBC as loca! governments are neither inter-

ested in nor legally allowed to make any decisions based on a

constituent’s race or even to inquire into his or her race. They,

therefore, do not have information on this issue. The Flathead

4

See below. Approximately 2,000 families, farmers and

ranchers, are represented by the Districts and JBC.

As the result of these and other Congressional acts im-

plementing the Dawes Act, nonmembers constitute 81-82

percent of the population of the Flathead reservation to-

day.° Of the 1.245 million acres within the original reser-

vation, 553,151 acres are now owned by nonmembers.°

In this brief, Amici are concerned with preserving their

ability to exercise the authority delegated them by the

State to fulfill the responsibilities the Legislature requires

them to bear on behalf of the citizens of the county and

the members of the Districts.

Lake County’s ability to perform its governmentat func-

tions is impaired and at times shackled by assertions of

regulatory and adjudicatory authority by the Flathead

Tribes over non-tribal lands and people.’ At times its

citizens receive less governmental service, uneven protec-

tion of the laws, and more governmental interference as a

Tribes, however, do keep track of such statistics, and they are

the source of the figures here.

5 The 1990 census recorded 21,259 individuals living on the reser-

vation. Of these, 5,110 are Native Americans. Of this latter

amount, according to the Flathead Tribes, 3,976 are tribal members.

* The Flathead Tribes provided this data in an application to the

Environmental Protection Agency for Treatment as a State status

under §518 of the Clean Water Act (33 U.S.C. § 1377) to establish

water quality standards, regulate wetlands, and issue § 401 certifi-

cations for the entire reservation. Amici assume their essential

veracity.

7 Amici serve al) their constituents, tribal members and non-

members. They do not necessarily concede they lack, in toto, either

responsibility for or authority over tribal lands or members. Under

the 1926 Act, the JBC and Districts clearly do have responsibilities

for tribal member land owned in fee. Amici recognize, however,

certain limits to their authority. Since the issue in this case con-

cerns tribal authority over nonmembers on open, non-tribal prop-

erty, amici address only the potential implications of this decision

for their responsibilities to nonmember citizens.

5

result of the conflicts of authority arising from the Tribes’

assertions of powers over nonmembers. The government

of Lake County is burdened, indeed, retarded by this situ-

ation in much the same manner as were the local govern-

ments analyzed in Hagen v. Utah, ———- U.S. ——, 114

S.Ct. 958, 970 (1994). The fulfillment of many govern-

ment duties, routine in other counties, such as roadwork,

repair of bridges, placement and updating of traffic con-

trols, zoning, and planning are often deferred, delayed, or

simply canceled. The work of law enforcement and fire

fighting, and other emergency service, which more than

other government functions frequently require swift and

sure action, is also delayed, complicated, and at times, un-

fortunately, unfulfilled because of issues arising out of ju-

risdictional conflicts over land and people.

Lake County is traversed by state and federal highways.

One, Highway 93, which runs North and South through

the county, is a narrow two-lane highway in need of up-

dating, especially to accommodate the influx of permanent

residents to the area and tourists. Lake County is situated

between the city of Missoula 30 miles to the South, the

largest population center in western Montana, and tourist

centers to the North, such as Glacier Park, Whitefish ski

resort, Kalispell and Flathead Lake. Literally tens of

thousands of tourists, from Montana and elsewhere, tra-

verse Lake County through Highway 93 every year.

Neither they nor nonmember residents of Lake County

have in any way consented, by their presence in the por-

tion of Lake County within the reservation, to tribal gov-

ernment’s control of them.

Yet, the Flathead Tribes have asserted civil regulatory

authority over nonmembers on non-tribal property, encom-

passing also adjudicatory authority. This claim of sov-

ereignty extends to many aspects of daily life, including

control of water quality issues, to the exclusion of state,

and therefore local, government authority. It also includes

6

authority to adjudicate disputes which arise anywhere

on the reservation, including the state and federal high-

ways" This places administrative and financial burdens

on Lake County, including its judicial system, the Twen-

tieth Judicial District of Montana.

It also places Lake County in the anomalous position

of having to treat issues arising within the boundaries of

the reservation but on non-tribal property in a manner

significantly different from the way they would be handled,

perhaps only a few steps away, off the reservation. Thus,

by their various and broad claims of sovereignty, the

tribes cause Lake County to treat its constituents differ-

ently. And they cause Lake County residents living within

the boundaries of the reservation to receive not only

different governmental services but services often of a

more intrusive, complicated, and inconclusive nature and

of a lesser quality. This has additional negative social

effects for Lake County.

Because of the tribe’s claims to sovereignty over non-

members and their property, county residents who are

not tribal members but who fall within the compass of

the tribes’ claims, frequently express frustration, anger,

fear, and ultimately cynicism about their state and local

governments, tribal government, and their status, as they

see it, as second class citizens subject to the claims of a

government which excludes them. In Lake County’s ex-

perience, this gives rise not only to apathy and cynicism

about government. Because of uncertainty about whether

state and local or tribal regulatory powers, or both, apply

to non-tribal property, Lake County’s experience shows

8 See Ordinance 36B, Flathead Tribes Law and Order Code, Ch. 1,

§ 1, asserting jurisdiction to the “fullest extent possible not incon-

sistent with federal law” over “all persons found within the reser-

vation.” As quoted in Moran v. Council of the Confederated Salish

and Kooteni Tribes, et al., 22 ILR 6149 (1995). See also Hinshaw

v. Mahler, 42 F.3d 1178 (9th Cir. 1994) cert. denied ——— U.S. ——,

115 S.Ct. 485 (1994).

7

that county residents are at times reluctant to voluntarily

comply with permitting programs or even to report inci-

dents—such as a spill requiring a clean up response—for

fear they will be heavily penalized through one of the

number of tribal civil regulatory ordinances in which the

tribes claim sovereignty over nonmember activity on non-

tribal property.” This hampers Lake County’s ability to

administer and enforce regulatory programs, particularly

through voluntary compliance, the most effective, econom-

ical, and least intrusive means of governmental regulation.

For these reasons, Lake County and the JBC oppose

what they believe are excessive claims of tribal sovereignty

over nonmembers on non-tribal property, both because

nonmembers cannot participate in that government and

because it excludes the republican forms of local govern-

ment expressly authorized and required by Congress in

the Enabling Act of February 22, 1889 and the Act of

May 10, 1926. Cf. State of Montana, Lake County, et al.

v. United States Environmental Protection Agency, et al.,

F.Supp: (D.C. Mont. 1996), on appeal to

Ninth Circuit Court of Appeals, No. 96-35508.

As to non-tribal property within reservation boundaries

which Congress opened to nonmember access and from

which the tribes may not exclude anyone, amici believe

the Court has clearly held tribal inherent sovereign power

abrogated. Amici argue that, as to such non-tribal prop-

erty in an “open” area, the Court’s decisions allow tribes

to affect and contro] the activities of nonmembers through

an action in federal court in the appropriate circumstance,

if the activity constitutes a demonstrably serious impact

on the tribe, imperilling its political integrity, economic

security, or health or welfare. This standard derives from

* For example, in the Aquatic Lands Conservation Ordinance,

No. 87A, the Flathead tribes assert authority over all activities on

wetlands within the reservation, including the 50% non-tribal land,

as well as the authority to levy fines, and enforce them in tribal

court, of up to $25,000.00 per day for noncompliance.

the Court’s decisions in Montana v. United States, 450

U.S. 544 (1981) (the “second Montana exception) and

the discussion there of possible sources of tribal authority

over nonmember activity on non-tribal property; and the

refinements to that discussion in Brendale v. Confederated

Tribes and Bands of the Yakima Indian Nation, 492 US.

408 (1989) and South Dakota v. Bourland, 508 U.S. 679,

113 S.Ct. 2309 (1933).

The Flathead tribes, however, like other tribes around

the country, including the Petitioners here, continue to

rest broad claims to sovereign authority over nonmember

activity on non-tribal property in open areas on an over

broad interpretation of this possible exception to the

general rule. Amici therefore ask the Court to state the

rule, on the grounds given below, that nonmember activity

on non-tribal property from which the tribe has no power

to exclude anyone lies beyond the reach of the tribe’s

inherent sovereign power.

SUMMARY OF ARGUMENT

1. This case presents the issue of the limits of an

Indian Tribe’s inherent sovereign power over those who

are not members of the Tribe, including whether there are

constitutional limits to such power. Amici urge the Court

to affirm the lower court’s decision and in so doing to

establish that a tribe’s sovereign power runs only to those

who have given their consent, either as members of the

tribe or in exchange for access to property over which

the tribe retains the power of exclusion.

2. These amici assume Respondents and other amici

will cut through the thickets of preliminary and largely

irrelevant argumentation presented by Petitioners and their

supporters. To be sure, this Court wrote in its opinions in

two cases of the centrality of tribal courts for the exercise

of sovereignty. National Farmers Union Ins. Cos. v. Crow

Tribe of Indians, 471 U.S. 845 (1985); lowa Mutual

9

Ins. Co- v. LaPlante, 480 U.S. 130 (1982). The United

States are in fact supportive of tribal sovereignty; Con-

gress has generously supported the flowering of tribal

courts and the invigoration of tribal governments. Many

tribal courts are, in fact, more competent and well-staffed

than even fifteen years ago.

A. Such assertions, however, beg the question.” The

cases Petitioners and their supporters now set up as ex-

amplars of this Court’s recognition of sweeping tribal

sovereignty in all the fullness of that term in fact estab-

lished a procedure requiring the exhaustion of tribal rem-

edies before challenging assertions of tribal jurisdiction

in federal court. Nothing more. See Yellowstone County

v. Pease, 96 F.3d 1169, 1175 (9th Cird. 1996) (agreeing

with the Eighth Circuit en banc decision in this case that

Iowa Mutual and National Farmers are “exhaustion cases

that did not decide whether tribes had jurisdiction over

nonmembers,” the Ninth Circuit rejected the argument

these decisions extended tribal sovereignty or that “tribal

1° Amici United States, relying on language from lowa Mutual

v. Laplante, 480 U.S. at 9, 19, link their argument in favor of

tribal sovereignty here with the statement that “attacks on the

institutional competency of tribal courts [are] ‘contrary to...

congressional policy.’” It should be clear that opposition to a

Tribe’s “excessively claimed sovereignty,” (A-1 Contractors v. Strate

76 F.3d 930, 940 (8th Cir. 1996), is not an attack on the com-

petence of that Tribe’s institutions. Conversely, the competence of

a Tribe’s institutions cannot create sovereignty where it does not

exist. Finally, Congress’ policy to generously support the creation

of competent triba] institutions neither magically makes such com-

petence a reality nor creates sovereign power for those institutions

to wield where it does not otherwise exist. Thus, it is illogical to

argue that because tribal courts are competent or because Congress

desires them to be so their sovereign—the Tribe—ipso facto pos-

sesses authority over nonmembers. Whether a tribal court has the

professional competence to handle a matter and whether a tribe

possess sovereign authority over the matter are two separate

inquiries, and the first is not relevant to the second.

10

adjudicatory jurisdiction over non-Indians is much broader

than the tribal regulatory authority... .”)”

B. Similarly, that Congress, exercising its plenary

power over Indian affairs, has supported tribal courts

and tribal self-determination, neither alters nor answers

the question: what inherent sovereign powers do Indian

Tribes have over nonmembers? The representative of the

people of the United States, and the keeper of the plenary

power of the United States over Indian affairs, Congress,

has in fact supported tribes in many ways. Rt such

policies do not create inherent sovereign power or limn

its contours. Congress’ enactments on behalf of tribes

nowhere state the intent to extend tribes’ sovereign power

to nonmembers. The proper inference to draw from the

lack of congressional extension of tribal sovereignty in

its numerous acts in support of many tribal interests, as

amici Yavapai-Apache Nation, et al., state, is that “Con-

gress has favored a ‘hands off approach with regard to

tribal sovereignty.” Yavapai, at 10. Congress supports

tribes in many ways; it supports tribal sovereignty to the

1 The Ninth Circuit also approvingly quoted the Eighth Circuit's

decision at issue here that, under the so-called “Second Montana

Exception,” the “ ‘desire to assert and protect excessively claimed

sovereignty’” is not a sufficient tribal interest to create tribal

jurisdiction where it has been abrogated. Pease, 96 F.3d at 1175,

n.6.

12 Yavapai properly list among the various acts of Congress “re-

affirming tribal sovereign authority” a variety of environmental

laws, including the Clean Water Act. Yavapai at 10, n.9, citing,

among others, 33 U.S.C. § 1877. It is notable, and correct, that

Congress in § 1377 of the Clean Water Act “reaffirmed” tribal

authority. It did not extend it; and, amici respectfully submit,

contrary to an allusion by the plurality in Brendale, 492 U.S. at

428, it did not delegate federal power to tribes in this section. Both

the structure of the section, which provides for treating tribes as

states in specified instances, and the Act, under which states exer-

cise only their own pre-existing power, support the Environmental

Protection Agency’s conclusion that Congress did not delegate fed-

eral power in this provision. 56 Fed. Reg. 64876, 64879-80.

nme ae mt

11

extent it already exists. But, since the Dawes Act era

when Congress abrogated many aspects of tribal sover-

eignty in many instances, particularly over nonmembers,

Congress’ fulsome support of tribes has not included re-

vival and extension of authority over nonmembers. Con-

gress’ many acts in support of tribes evince the intent to

improve their situation and that of their members within

the limits of their existing legal authority. Congress has

not extended those limits.

C. Likewise, the growing efficiency of tribal govern-

ments and their increasing competency cannot create in-

herent sovereignty where it does not exist. Efficiency,

even ability, is not now and has never been in these United

States a source of sovereignty. New York v. United States,

USS. , 112 S.Ct. 2408, 2434 (1992); United

States v. Unzueta, 35 F.2d 750, 752, (D.C. Neb. 1929),

citing Clairmont v. United States, 225 U.S. 551 (1912),

which held a railroad right of way granted by Congress

to have been withdrawn from the Flathead reservation, for

the proposition that “the mere difficulty of (split jurisdic-

tion) enforcing state authority over a strip of land ex-

tending through an area under federal jurisdiction is not

controlling.”

D. Finally, the distinction Petitioners and their sup-

porters strain to draw between a tribes’ regulatory juris-

diction over nonmembers, which they recognize the Court

has limited, in most cases, to tribal members and tribal

property, and its adjudicatory jurisdiction lacks both merit

and footing in the law. While it is true that commonly

two separate branches of government exercise regulatory

and adjudicatory jurisdiction, these powers derive from

the same source—the sovereignty of the government that

created them-——and cannot exceed that source in reach.

There is no basis for distinguishing between “regulatory

sovereignty” and “adjudicatory sovereignty.” Courts, in

themselves, do not have “sovereignty,” just as regulatory

agencies do not. The sovereign has sovereignty which its

12

courts and agencies exercise through their jurisdiction,

given them by the sovereign. Thus, tribal adjudicatory

jurisdiction cannot exceed the sovereignty of the tribe.”

See Pease, 96 F.3d at 1175; citing the en banc opinion

below and rejecting the argument the tribe’s adjudicatory

jurisdiction exceeds its regulatory jurisdiction. Amici

United States’ argument in this regard contains the seeds

of its failure. They note, imprecisely, that states in some

instances adjudicate matters between nonresidents. They

then equate tribes with the several states, implicitly assum-

ing one of the key issues here—that tribes possess “terri-

torial jurisdiction” just as do states—and argue tribes

too should have the authority to adjudicate matters be-

tween “nonresidents,” that is, “non-Indians.” But tribes

are not states."* They have no constitutional standing as

18 See Felix Cohen, Handbook on Federal Indian Law, at 145

(1971). Noting that the power to administer justice follows and

flows from the power of “self-government,” Cohen offered the

example that if a tribe has the power to regulate “marriage rela-

tionships of its members, it necessarily has the power to adjudicate

... controversies involving such relationships.” He thus concluded,

“the judicial powers of the tribe are co-extensive with its legislative

or executive powers.” This is logical and well-grounded in the

Court’s decisions. It rebuts the claim that adjudicatory jurisdiction

can be unhinged from its sovereign source and reach out, a free

agent of tribal power, unmoored and disembodied from its only

source of authority, triba] inherent sovereignty.

14 Moreover, “non-residents” are not equivalent, in the context of

tribal power, to “non-Indians.” First, on numerous reservations,

non-Indians and Indians who are nonmembers are residents of the

reservation. In the case of the Flathead reservation, 81-82% of

the population consists of nonmembers of the tribes; approximately

50% of the reservation land is owned by nonmembers. Second, in

state courts, non-residents enjoy the full complement of federal

rights, including constitutional rights, which extend to civil! as well

as criminal matters. Cf. Tull v. United States, ——- U.S. ——., 107

S.Ct. 1831 (1987), detailing right to jury trial in civil enforcement

matters. Juries limited to a particular race and ethnicity, excluding

by law persons of the defendants’ race or ethnicity, are clearly

unconstitutional. Yet in most if not all tribal courts, juries are

limited to tribal members. Cf. Flathead Tribes Law and Order

13

sovereigns, lack any constitutional constraints in govern-

ing, and, as a result of their status within the United

States, exercise limited, quasi-sovereign powers over in-

ternal matters subject to the plenary power of Congress.

3. Once past these thickets then, the resolution not

only of this case but the general issue of tribal jurisdiction

over nonmembers requires the application of two inter-

related analyses, both of which result in the conclusion

the Tribes lack the sovereign power they assert.

A. First, Congress’ acts and the decisions of the Court

clarify an Indian tribe does not possess territorial sover-

eignty and lacks inherent sovereign power over nonmem-

ber conduct on non-tribal property, an easement, within

the exterior boundaries of a reservation but alienated to

one of the States and from which the Tribe has no power

to exclude anyone. The Court’s decisions, contrary to Pe-

titioner’s suggestion, from its earliest encounter with this

issue, Fletcher v. Peck, 6 Cranch 87, 147 (1810), to the

present day determine this conclusion. Montana, 450 U.S.

544 (1981); Brendale, 492 U.S. 408 (1989); Bourland,

508 U.S. 679 (1993).

B. Second, when analyzed against the Constitution,

its allocation of powers among the two sovereigns it

establishes and its guarantees of certain fundamental

rights to citizens, tribal sovereign power over non-

members is revealed as anomalous and, if such power ex-

Code, Ch. I, § 7.3, “eligible jurors shall be residents of the Flathead

Reservation and enrolled members of the Tribes who are qualified

to vote... .” Similarly, in state courts, judges cannot be limited to

a particular race and ethnicity. Yet in most if not all tribal courts,

race and ethnicity—tribal membership— is an explicit criterion. /d.

at § 3.4, eligibility to serve as tribal judge limited to tribal members.

As noted by the Court in Oliphant v. Suquamish Indian Tribe,

435 U.S. 191, 209 (1978) Mr. Justice Johnson, concurring in

Fletcher v. Peck, stated that the overriding sovereignty of the

United States had reduced tribes’ sovereignty by divesting them

of the right of governing anyone but themselevs.

14

ists at all, it should be closely cabined. The Constitution,

as conceived and amended, allowed the exercise of sov-

ereignty in the United States by only two entities—the na-

tional sovereign and the states. It established a careful

balance of sovereign power between these. It guarantees

to individual citizens certain fundamental rights; it re-

served to the states and to the people those powers not

delegated to the United States or reserved by the states.

Tribes have no standing under the constitution as sover-

eigns. Their power exists at the sufference of Congress,

which has plenary authority over Indian affairs, and which,

unlike Tribes, the Constitution limits in its power to act

or authorize actions. Indian tribes, not thus constrained,

have been allowed to engage in policies and take actions

against those within their sovereign power repugnant to

the constitution. Santa Clara Pueblo v. Martinez, 436

U.S. 49, 56, n. 7 (1978). This is anomalous. In the

case of tribal members, they can, perhaps, be presumed to

have consented to such government. In the case of a non-

member seeking a tribe’s permission to access property

over which it retains the power of exclusion, this presump-

tion may also be warranted. A tribe presumably could

extract such consent in exchange for doing business with

it. But in the case of a nonmember on nontribal property,

over which the tribe lacks the power of exclusion, there is

no basis for this presumption.

Moreover, nonmembers are excluded from citizenship—

full and equal participation in the process of government

—in tribes. They are excluded either because of their

race, their ancestry, or their ethnicity. And because of

these immutable factors, they have not and cannot give

their consent to be governed by a tribe.

Amici therefore argue the lack of constitutional stand-

ing for and constraints on tribal authority and the undis-

puted, fundamental constitutional rights of U.S. citizens

preclude tribes from exercising sovereign power over non-

members absent some other source of acquiring such au-

15

thority, such as the power to exclude or the explicit con-

sent of the nonmember.

ARGUMENT

I. A TRIBE’S SOVEREIGNTY, UNFOUNDED IN THE

CONSTITUTION, LIMITED TO ASPECTS OF

SOVEREIGNTY NOT INCONSISTENT WITH ITS

DEPENDENT STATUS, CONCERNING ONLY CON-

TROL OF INTERNAL AFFAIRS, CANNOT SUR-

VIVE THE ABROGATION OF THE POWER TO

EXCLUDE.

Petitioners and their supporters argue from the assumed

premise that tribes are sovereigns equivalent to states.

This, of course, is erroneous. The corollary derived from

this premise, that tribes possess territorial jurisdiction, is

also erroneous.

The first principle of tribal sovereignty is not that it is

inherent, which explains little more than its lack of con-

stitutional grounding or constraints, but that it is limited,

quasi-sovereign in nature, containing aspects but not the

full plumage of sovereignty”. It is limited first because

the Constitution does not recognize tribes as sovereigns.

United States v. Kagama, 118 U.S. 375 (1886).

16 Limited sovereignty, of course, entails limitations not only on

governmental power but also governmental responsibility. This is

borne out in the practical responsibilities of tribal and state govern-

ments. State and local governments have considerable responsibility

to provide services to tribal] members just as to nonmember citizens.

Within the boundaries of many reservations, they provide law en-

forcement and fire protection, schools, municipal services such as

sewer and water, road construction, maintenance, and improvement.

Of no little consequence, they must aslo provide the machinery of

fair and equal elections for state and local campaigns as well as

access to civii courts. The federal government also, of course, pro-

vides many governmental services to tribes and their members.

Sovereign power, then, clearly has a dual nature, one imposing

responsibilities on government the other the power to fulfill these.

Tribes’ limited sovereignty is matched by their limited responsi-

bilities, which run solely to their members.

16

As to nonmembers, whatever the particular factual situ-

ation, the general rule is that tribal governments lack juris-

diction over non-members. Montana, 450 U.S. at 565;

Bourland, 113 S.Ct. at 2318. Tribes’ incorporation into

the United States caused their “inherent sovereignty . . .

{to be] divested to the extent it is inconsistent with the

tribes dependent status, that is, to the exent it involves a

tribe’s ‘external relations.” Brendale, 492 U.S. 425-26;

citing United States v. Wheeler, 435 U.S. 313, 326, 98

S.Ct. 1079, 55 L.Ed.2d 303 (1978). The Court has

consistently held “that the regulation of ‘the relations be-

tween an Indian tribe and nonmembers of the tribe’ is nec-

essarily inconsistent with a tribe's dependent status, and

therefore tribal sovereignty over such matters of ‘external

relations’ is divested.” Brendale, supra, at 427; quoting

Wheeler, supra, at 326.

In Montana, the Court said it “defies reason” that Con-

gress would have intended the Tribe to retain such power

after it had opened tribal property to nonmembers and

abrogated the tribe’s power of exclusion, because nonmem-

bers have no voice in tribal government. /d. at 559, n.9,

561; Brendale, 492 U.S. at 422-425 and Bourland, 113

S.Ct. at 2316, 2318. The Court noted the possibility that

in exceptional circumstances, when a tribal government

demonstrates that the nonmember conduct “threatens or

has some direct effect on the political integrity, the eco-

nomic security, or the health or welfare of the tribe” it

then “may” have some power over the nonmember con-

duct. Id. at 566. It did not say that even if the circum-

stances outlined were proven a tribe would have such

authority. It only said that it “may.” See Brendale, 492

U.S. at 428, emphasizing this. This possible exception to

the general rule, however, was not part of the Court's

holding and is dicta. See Brendale, supra, Red Fox v.

17 As the Court noted in Brendale, supra at 426, n.9, a tribe's

retained inherent sovereignty could also be divested by treaty or

statute.

17

Hettich, 494 N.W. 2d 638, 646 (1993): “Montana went

on to note, without deciding, that a tribe may have other

authority as well.”

The Court has subsequently indicated that a showing

by a tribe under this concept would not cause the re-

creation of sovereignty Congress had abrogated but would

give rise to a federal cause of action. County of Yakima

v. Confederated Tribes and Bands of the Yakima Indian

Nation, 502 U.S. ——, 112 S.Ct. 683, 692, 116 L.Ed.2d

687 (1992); Brendale, 492 U.S. at 430-431; Bourland,

113 S.Ct. at 2320, n.15, 2321. In Brendale the Court care-

fully refuted any suggestion that such narrow power could

include police power. Brendale, 492 U.S. at 421 (noting

the Ninth Circuit had found the Tribe did have police

power), 429, n.11 (stating that equating a tribe's retained

sovereignty with a local government’s police power “is

contrary to Montana itself” ).

_As to non-tribal property in open areas from which the

tribe cannot exclude anyone, six members of the Court

ruled that a tribe has no sovereign authority over nonmem-

ber activity. To be sure, the plurality written by Justice

White did not rely on the determination of whether the

nonmember land was in an “open” or “closed” area. But

this fact offers no succor to Petitioners because the plural-

ity (White, Rhenquist, Kennedy, Scalia) said that tribes

have no such authority in any case, whether the land is in

an open area or not. /d. at 430-32. The plurali ited

that, if a tribe made a proper showing As an sae re-

create abrogated sovereignty but, in the right circum-

stance, it would give rise to a federal i

poe od ral cause of action. /d.

* Although the Yakima County decision did not concern tribal

government authority over non-members, the court’s characteriza-

tion of the “very narrow” powers of tribal governments over non-

members, as well as its approving reference to the “protectable

em os of ~: ae plurality, deserve great weight

use 0 overwhelm support the

(8-1). Jd. at 692. cm Le

“The governing principle is that the tribe has no

authority itself, by way of tribal ordinance or actions

in the tribal courts, to regulate the use of fee land.

The inquiry thus becomes whether and to what extent

the tribe has a protectable interest in what activities

are taking place on fee land within the reserva-

tion. . . . But, as we have indicated above, that

interest does not entitle the tribe to complain or

obtain relief against every use of fee land that has

some adverse effect on the tribe.” /d.

As to non-tribal property in open areas, the concurrence

agreed. The concurrence did not even mention the “Sec-

ond Montana Exception” or bother to examine the effects

of the nonmember activity on the tribe, implictly dismiss-

ing this as a factor in the sovereignty question. Rather,

they concurred in the judgment of the plurality as to non-

tribal property in an “open” area of the reservation. Id.

at 444-447. While disagreeing with the plurality’s deci-

sion that tribes lack jurisdiction over nonmembers on non-

tribal property in all cases, the concurrence implicitly

adopted, without comment, the plurality’s position that as

to nonmember activity in this area the tribe could only

have a cause of action: “So long as the land is not used

in a manner that is preempted by federal law, the Tribe

has no special claim to relief.” Jd. at 445.

Thus, in its first review of the application of its dicta

from Montana, four members of the Court said it is noi a

basis of sovereign authority in any situation; and two

reached the same conclusion as to “open” areas.

Later, in Bourland the Court held that tribal govern-

ment lacked jurisdiction over nonmember hunting and

fishing on fee land and in waters over fee land owned by

the federal government. The precise question in Bourland,

which set it apart, if only slightly and temporarily, from

the ambit of the Court’s Montana and Brendale decisions,

was whether the principles enunciated in those cases ap-

plied to property owned by the federal government. Em-

phatically holding they do, the Court’s opinion in Bour-

19

land enunciated the rule that there can be no tribal juris-

diction over nonmember activities in areas “broadly

opened” to nonmembers.

The Court emphasized that when Congress opens reser-

vation lands to nonmembers, “[t]hese statutes clearly

abrogated the Tribe’s ‘absolute and undisturbed use and

occupation’ of these tribal lands . . . and thereby deprived

the Tribe of the power to license non-Indian use of the

lands.” Jd. at 2321. (Emphasis added). The Court stated

“the reality . . . after Montana [is that] tribal sovereignty

over nonmembers’ cannot survive without express congres-

sional delegation,’ 450 U.S. at 564, and is therefore, not

inherent.” /d. at 2320, n.15.

Amici contend that in Bourland, the seven-member ma-

jority made explicit the implied ground of agreement be-

tween the Brendale plurality, which held that a tribe simply

has no jurisdiction over nonmembers on non-tribal prop-

erty, and concurrence, which held that as to land in an

“open” area a tribe had no jurisdiction over nonmembers,

but in a “closed” area the tribe had jurisdiction: when the

property in question is part of an area “broadly opened”

by Congress to entry by nonmembers the tribe can have

no jurisdiction over nonmembers. /d. at 2318.

_ As to such an area, then, the “Second Montana excep-

tion,” if proven by a tribe, would support a cause of action

in federal court to enjoin the offending nonmember activ-

ity, but not the re-creation of tribal inherent sovereignty

previously abrogated my Congress.” In closed areas where

” As noted by the Court in Bourland, 113 S.Ct. at 2320, n.15, if

treated as a source of re-creating sovereign authority rather than

a cause of action, the second hv atana exception contains a logical

glitch. That is, once abrogated, inherent sovereignty could not

simply be magically generated again by the appearance of some

activity which the tribe deemed a threat. Once Congress has taken

action abrogating a power, under the Supremacy Clause it seems

not only illogical but insupportable to allow that it could be recon-

stituted in the right cireumstance upon the assertion of a tribe.

20

the tribe has another logical and unabrogated source of

authority—the power to exclude—it may retain also the

power of limited sovereignty.

Many Tribes and federal agencies, however, have in-

terpreted the second Montana exception far beyond its

logical limits, ignoring the court’s indications that tribes

may have only “very narrow” powers over nonmembers,

until this possible exception has swallowed the rule. Cf.

EPA Final Rule Pertaining to Water Quality Standards,

56 Fed. Reg. 64876, 64877-80 (1991), construing this

exception to support the conclusion that if an applicant

tribe demonstrates one of its members uses water within a

reservation, it then has sovereignty to establish water

quality standards for the reservation. In the instant case,

the tribe and the United States urge the Court to reverse

the presumption against tribal sovereignty over nonmem-

bers and ratify their construction of the second Montana

exception as authorizing the powers of general government

in a tribe over nonmembers even in areas from which it

cannot exclude anyone.

The rule proposed by Amici would obviously leave to

tribes all their powers over internal relations, including

their members and lands. The work of government re-

quired for such matters is not inconsiderable. Moreover,

such a rule is not only solidly in keeping with the Court’s

previous 190 years of precedent but also comports with

the constitutional concerns and limits preserving the pow-

ers of states and the right of individuals.

Il. THE CONSTITUTIONAL STRUCTURE AND THE

FUNDAMENTAL RIGHTS OF INDIVIDUAL CITI-

ZENS PRECLUDE THE EXERCISE OF EXTRA-

CONSTITUTIONAL SOVEREIGN POWER BY A

TRIBE OVER NONMEMBERS IN OPEN AREAS OF

A RESERVATION.

That the assertion of a Tribe’s inherent sovereign power

over nonmembers involves constitutional issues of the first

magnitude brooks no dispute. Petitioners and their amici

21

supporters address this issue with varying degrees of con-

cern. Petitioners state “there is nothing offensive about

forcing non-Indians involved in civil disputes on Indian

land to appear in tribal court.” Pet. Bf, at 7, citing Santa

Clara Pueblo v. Martinez, 436 U.S. 49 (1978). Their

supporters, in particular amici Yavapai, recognize the ex-

ercise of tribal power over nonmembers raises troubling

constitutional issues, arguing such concerns animated the

Court’s decision in Montana.” At least one tribal court

has directly recognized this fact, stating:

“(t]he exercise of tribal jurisdiction over non-Indians

is replete with constitutional issues. Some exercise of

inherent tribal authority over non-Indians is incon-

sistent with various allotment acts or other acts of

Congress. In those instances the Supremacy Clause

requires that tribal jurisdiction not extend to non-

Indians.” ™

Commentators have long recognized the constitutional

incongruities endemic to Tribes’ assertions of sovereign

power to govern people whom they exclude, on the basis

of race, from participating in government. Recent schol-

arly commentary recognizes the Court’s decisions concern-

ing tribal authority over nonmembers ™ hew to the consti-

2 Yavapai’s proposed solution, however, lacks merit. Their pro-

posed “test” would reverse not only the presumption against tribal

sovereignty over nonmember activity on fee land but also the

prohibition against tribal criminal authority over nonmembers,

except in those cases where the Constitution requires a grand jury.

It, in essence, would establish a strong presumption of tribal sover-

eignty in all instances, except in the more “egregious” situations,

which in Yavapai’s view, the Court would have to address on an

ad hoc basis.

21 Middlemist, et al. v. Pablo, et al., 23 ILR 6141, 6143, n.5 (1996),

Tribal Appellate Court of the Confederated Salish and Kootenai

Tribes of the Flathead Reservation.

22 See Oliphant v. Suquamish Indian Tribe, 485 U.S. 191 (1978);

United States v. Wheeler, 485 U.S. 313 (1978); Montana v. United

States, 450 U.S. 544 (1981); Brendale v. Confederated Tribes and

22

tutional requirement that sovereign power der ves from

the consent of the governed, and therefore tribal power

over nonmembers is, at the least, suspect. L. Scott Gould,

“The Consent Paradigm: Tribal Sovereignty at the Mil-

lenium,” 96 Columbia Law Review 809-902 (May 196).

Professor Gould, in fact, finds the Court has essentially

decided that tribal sovereign power extends only to those

whom it can be said have given the consent of the gov-

erned—tribal members. Gould, supra, at 810, noting the

earliest decisions of the court applied the concept limiting

tribal sovereignty to members. Thus, Gould, no opponent

of expansive tribal authority, concludes “full territorial

jurisdiction” based on “doctrines of inherent sovereignty

and trust responsibility” cannot provide a source of au-

thority over nonmembers because “they lack a textual basis

in the Constitution.” * Jd. at 899. Lacking such a basis,

Bands of the Yakima Nation, 492 U.S. 408 (1989); Duro v. Reina,

495 U.S. 676 (1990); South Dakota v. Bourland, 508 U.S. 679

(1993).

2% Professor Gould argues this lack of constitutional footing for

tribal authority over nonmembers can only be made good by explicit

congressional action conferring “full territorial sovereignty.” He

notes, however, that others have opined the remedy for this is the

development of a “penumbral, fundamental right,” or protection for

tribes umder the First or Ninth Amendment, or that tribes have

“rights as separate peoples” because they are not subject to equal

protection requirements. Gould at 898; citing Nell Jessup Newton,

Federai Power over Indians: Its Sources, Seope and Limitations,

132 U. Pa. L. Rev. 195, 245 (1984) (penumbral right); Kevin J.

Worthen, Sword or Shield: The past and Future Impact of Western

Legal Thought on American Indian Sovereignty, 104 Harv. L. Rev.

1372 (1991) (Tribes rights under First Amendmeit); Russell L.

Barsh & James Y. Henderson, The Road: Indian Tribes and Politi-

cal Liberty 112, 264-267 (1980) (Ninth amendment protects tribal

sovereignty as fundamental right) ; David C. Williams, The Borders

of the Equal Protection Clause: Indians as Peoples, 38 UCLA L.

Rev. 759 (1991) (lack of equal protection provision allows giving

tribes rights as separate peoples). Other commentators argue

tribes’ diminished sovereignty can be constitutional’, extended to

nonmembers only by enactment and ratification of a constitutional

amendment. See Fergus M. Bordewich, Killing the White Man’s

i I eo me URES = _

23

Gould agrees with other commentators that assertions of

tribal sovereign power over nonmembers fail because they

“too starkly challenge western notions of democratic self-

government.’ Gould at 900. Amici agree.

“Democratic self-government” has been viewed as a

fundamental right requiring the government to obtain the

consent of the governed for no small amount of the his-

tory of western and “Anglo-American” thought. The Dec-

laration of Independence explicitly asserts that to secure

fundamental rights governments must “deriv[e] their just

powers from the Consent of the Governed. . . .” The

rights of full and equal opportunity to participate in gov-

ernment are fundamental, and in our system immutable,

implacable rights as against the government. That is, as

a free people, citizens of the United States have, and un-

der our constitution, unless that fundamental distribution

of powers is radically altered, will never relinquish, the

rights of full and equal participation in their governments,

which is the exchange for the consent of the governed.

Claims of tribal sovereignty over nonmembers on non-

tribal property, based on no oiher source of authority than

the tribe’s limited sovereignty or the concept of the sec-

ond Montana exception, conflict head on with these right

and those they secure. =

Indian: Reinventing Native Americans at the End of the Twentieth

Century, at 338.

Gould is not sanguine about these potential remedies to the “prob-

jem” of limited tribal sovereignty. Believing Congress unlikely to

enact legislation to restore “full territorial sovereignty,” he ex-

plains “the consent paradigm fits too comfortably with Anglo-

American notions of individual rights to be easily displaced.” Gould

at 900. One reason is that Tribes “efforts to assert inherent power

- » « ‘too starkly challenge western notions of democratic self-

government’ because they exclude whole classes of people, often

residents of the area who make up the majority of the population,

on the basis of race and ethnicity. Jd.; quoting Robert Clinton,

Reservation Specificity and Indian Adjudication; An Essay on the

Importance of Limited Contextualism in Indian Law, 8 Hamline L.

Rev. 543, 568-69 (1985).

24

It “defies reason” (Montana at n. 9) and is “inconceiv-

able” (Brendale, at 437 (concurrence) ) that Tribes would

retain jurisdiction over nonmember activity on non-

tribal property in open areas precisely because of this.

Duro v. Reina, 495 U.S. 676, 693-694 (1990); see also

Brendale, at 446-447 (concurrence).** No governmental

deprivation is more odious, more stigmatizing as the mark

of a lesser citizen, more corrosive of democracy and re-

spect for law than deprivation of the right to vote and

hold office.™

The enduring words and phrases in legal and political

discourse are those which convey fundamental tenets.

Ironically, by their very force and nature as the most basic

blocks of law and society they are the more easily hack-

neyed. Nonetheless, familiarity cannot leach away their

import as the foundational limits of our system, for any

law or policy at odds with the basic principles may not

long stand:

“We hold these truths to be self-evident, that all men

are created equal, that they are endowed by their

Creator with certain unalienable rights, that among

these are Life, Liberty, and the pursuit of Happiness.

That to secure these rights, Governments are insti-

2% “Moreover, it is unlikely that Congress intended to give the

Tribe the power to determine the character of an area that is

predominantly owned and populated by nonmembers, who represent

80 percent of the population yet lack a voice in tribal governance.”

Id.

25 The severity of this sanction in a democracy was well under-

stood in the Periclean age of Greece. In democratic Athens traitors

siding with the Persians in their invasion of Greece under Xerxes

were not put to death. Instead, they and their famies were “put on

the list of the disenfranchised.” Plutarch’s Lives, “Themistocles,”

Published by Walter J. Black, Inc. (1951) at 67. From then on,

traitors and their families could not participate in the political life

of the city or partake of the benefits of citizenship. Today, this

sanction is reserved, in some states, to felons. In others, state

authorities lack the power under their own laws to so proscribe even

violent, recidivist felons.

25

tuted among Men, deriving their just powers from

the consent of the governed.”

Declaration of Independence.

From this tap root of legitimate government in the

United States runs a direct line to the first words of the

Constitution: “We the people of the United States . . . do

ordain and establish this Constitution . . .” (Preamble,

Constitution.) Government power, therefore, derives only

from the people and may not exceed or violate the grant

of power to which the people consented. Martin v. Hunt-

er’s Lessee, 14 U.S. 304 (1816); M’Culloch v. Maryland,

pil 316 por ig ae “[iJn this Nation each sov-

gn governs only with the consent of the governed.”

Nevada v. Hall, 440 U.S. 410, 426 (1979).** _—7

The price of this consent constitutes the single most im-

portant element of the scheme of government created in

the Constitution—the right of full and equal participation

in the government under which one must live:

“No right Is more precious in a free country than

that of having a voice in the election of those who

make the laws under which, as good citizens, we

must live. Other rights, even the most basic, are

illusory if the right to vote is undermined.” Wes-

berry v. Sanders, 376 U.S. 1, 17 (1964).

In unequivocally holding that a citizen has a fundamen-

tal right to equal participation in the political process, the

*¢ The Flathead tribes’ Appellate Court recently i

in which it held the Tribes’ sovereignty, like that tas age

Montana and the United States, “derive from the sovereign tribal

membership”—i.e. the consent of the governed. Moran v. Council

of the Confederated Salish and Kootenai Tribes, et al., 22 ILR 6149

6155; and see 6156, n.BO (1995): “While the Tribes, i.e. the aover-

eign membership, delegated power to the Tribal Council . . . the

authority of the Tribal Court originates from the inherent sover-

eign judicial power of the Tribes (membership), not from the

Tribal Council.” (Emphasis and parenthetical in original. )

26

Court recognized the even greater importance of the

predicate.

“The right to exercise the franchise in a free and

unimpaired manner is preservative or other basic

civil and political rights.” Reynolds v. Sims, 377

U.S. 533, 562 (1964).

“(T]he right to vote is accorded extraordinary treat-

ment because it is, in equal protection terms, an

extraordinary right; a citizen cannot hope to achieve

any meaningful degree of individual political equality

if granted an inferior right of participation in the

political process.” Plyer v. Doe, 457 U.S. 202, 233

(1982).

Far from providing a reason to dismiss the constitu-

tional rights and concerns of nonmembers, that tribal gov-

ernments are not limited by the Constitution in wielding

their power “is all the more reason to reject an extension

of tribal authority over those who have not given the con-

sent of the governed that provides a fundamental basis of

power within our constitutional system.” Duro, 110 St.Ct.

at 2064; citing Justice Stevens’ dissent in Merrion, 455

U.S. at 172-173.

Government in the absence of consent, indeed, uncon-

strained by the limitations in the Constitution protecting

the rights of individuals, destroys the fabric of legitimate

laws, to which the government may expect and demand

compliance, by destroying the connection of the governed

to the government. See Powers v. Ohio, US.—,

111 S.Ct. 1364, 1368, 1369 (1991). Reverend Martin

Luther King, Jr. wrote:

“The denial of this sacred right [to vote] is a tragic

betrayal of the highest mandates of our democratic

traditions and it is democracy turned upside down.

So long as I do not firmly and irrevocably possess the

right to vote I do not possess myself. I cannot make

up my mind—it is made up for me. [| cannot live as

27

a democratic citizen, observing the laws | have helped

to enact—I can only submit to the edict of others.”

“Give Us the Ballot—We Will Transform the South,”

address delivered May 17, 1957, reprinted in A Testament

of Hope: The Essential Writings of Martin Luther King,

Jr. 197 (James M. Washington ed., 1986). Quoted in

dissent of Tang, Circuit Judge, in Members of California

Democratic Congressional Delegation v. E.U., 790 F.Supp.

925, 933 (N.D.Cal. 1992). Justice Tang averred, without

plausible threat of contradiction, that “[t}he right to vote

sits at the very core of representative democracy. It is,

moreover, a tool for self-uelp.” Id. at 935.

Government without consent, if allowed, will lead to a

breakdown in authority and the society it seeks to gov-

ern.” In a seminal study from a social science perspective

of the requirements of a legitimate, just society, John

Rawls, describing political liberty as a component of what

he viewed as the most important factor in shaping a just

society—equal liberty—wrote:

“The Principle of equal liberty . . . requires that

all citizens are to have an equal right to take part

in, and to determine the outcome of, the constitutional

process that establishes laws with which they are to

comply. Justice as fairness begins with the idea that

where common principles are necessary and to every-

one’s advantage, they are to be worked out from the

viewpoint of a suitably defined initial situation of

equality in which each person is fairly represented.

. . « If the state is to exercise a final and coercive

authority over a certain territory, and if it is in this

way to affect permanently men’s prospects in life,

then the constitutional process should preserve the

27 At both the “micro” and “macro” levels of social science, it is

recognized that some level of control over a governing process for

those subject to it is necessary to obtain compliance. See “Proce-

dural Justice and Regulatory Compliance,” 20 Law and Human

Behavior, No. 1 (1996), at 83, 84, 98.

28

equal representation of the original position to the

degree that this is practicable.”

John Rawls, A Theory of Justice 221-222 (1973). See

also, Richard Lempert and Joseph Sanders, “Law and

Social Science 284-291 (1986).

However, anticipating the negative effects of government

without the consent of the governed is not a necessary basis

for protecting these basic rights. Their fundamental place

in our Constitutional system suffices. Petitioners and their

supporters, however, claim such concerns can be finessed,

that it is not “offensive” to “force” nonmembers to come

within the power of a tribe, that the dignity and integrity

of tribal sovereignty (which cannot claim a constitutional

source) requires nonmembers’ rights be compromised and

that nonmembers be satisfied with the lesser protections

tribes may offer them under their various systems.

But it is true in Indian law as in other areas of the law

that “all legal restrictions which curtail the civil rights of

a single racial group are immediately suspect . . . [and]

courts must subject them to strict scrutiny.” Adarand

Constructors, Inc. v. Pena, US. , 115 S.Ct.

2097, 2106 (1995); quoting from Korematsu v. United

States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944).

The Court further observed: ‘ “[d]istinctions between citi-

zens solely because of their ancestry are by their very

nature odious to a free people whose institutions are

founded upon the doctrine of equality . . .” Adarand at

2106.

The authority the Tribes seek to exercise here—civil

adjudicatory jurisdiction over torts—is one of the most

important powers of general government and derives from

police powers, which tribes lack. Brendale, 492 US.

at 421, 429, n.11. In the United States, governments exer-

cising general governmental power must adhere to the one-

person one-vot. rule of Reynolds v. Sims, supra. Avery v.

Midlands County, 390 U.S. 474 (1968), as cited in Bail v.

James, 451 U.S. 355, 364 (1981). Only when a govern-

29

ment exercises narrow powers limited to its members—

not normal governmental activities affecting all people

wtihin the area—may it stray from this principle. Ball v.

James, 451 U.S. at 364.

Contrary to Petitioners’ assertion, it is “offensive” under

federal law to impose a system of government which ex-

cludes people on the basis of their race or ethnicity. In

this particular case, for example, it is unconstitutional to

subject a civil defendant to a jury from which all but a par-

ticular race of people have been excluded. Edmonson v.

Leesville Concrete Co., US. , 111 S.Ct. 2077,

114 L.Ed.2d 660 (1991); applying principles of Batson v.

Kentucky, 476 U.S. 79 (1986) to civil trial. An un-

biased jury, selected through non-discriminatory processes,

and the right to serve on such a jury, is an essential com-

ponent of securing the “acceptance of the laws by all of

the people.” Powers v. Ohio, US. , Lil S.Ct.

1364, 1369 (1991); see also United States v. De Gross,

960 F.2d 1433 (9th Cir. 1992), holding exclusion of

venireperson on basis of sex violative of equal protection.

There is a limit to the scope of legitimate power of

every government in the United States. That limit is the

consent of the governed. It does not detract from the

dignity or integrity of tribal governments to be so limited.

To be sure, it may limit a tribe’s aspiration to power.

However, Congress imposed such limits and they cannot

be ignored to the detriment of nonmembers’ rights. Lim-

ited to their members and nonmembers on tribal-property,

much work of governing remains for tribal governments.

There remains much that the United States will yet sup-

port in developing tribal institutions and cultures. But

this need not, and constitutionally cannot, entail the de-

struction of nonmembers’ rights.

30

CONCLUSION

Amici therefore urge the Court to affirm the

court’s decision by establishing the rule

exercise sovereign power over nonmem

Lf

i

5

power of exclusion, has consented to such extra-constitu-

tional power.

Respectfully submitted,

KIM CHRISTOPHER

Lake County Attorney

106 4th Avenue East

Polson, Montana 59860

(406) 883-6211

JON METROPOULOs *

P.O. Box 1185

Helena, MT 59624

(406) 443-2211

* Counsel of Record