Amicus Curiae Brief — Nevada v. Hicks

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Agag ; on / i

JAN j / - f ran 42 «OR

No. 99-1994 ;

IN THE

Supreme Court of the Anited States

STATE OF NEVADA; WILLIAMS MOLINI, RICH ELLINGTON;

MICHAEL SPENCER; BILL FITZMORRIS,

Petitioners,

FLOYD HICKS; TRIBAL COURT IN AND FOR THE FALLON

PAIUTE-SHOSHONE TRIBES; JOSEPH VAN WALRAVEN, HON.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF CONFEDERATED

TRIBES OF THE COLVILLE RESERVATION,

HO-CHUNK NATION, LAC DU FLAMBEAU BAND OF

LAKE SUPERIOR CHIPPEWA, PUEBLO OF ISLETA,

AND ST. CROIX CHIPPEWA INDIANS OF WISCONSIN

IN SUPPORT OF RESPONDENTS

William R. Perry

Counsel of Record

Douglas B.L. Endreson

Elizabeth L. Rodke

Angelina Y. Okuda-Jacobs

SONOSKY, CHAMBERS, SACHSE

ENDRESON & PERRY

1250 Eye Street N.W.

Suite i000

Washington, D.C. 20005

(202) 682-0240

January 19, 2001 Attorneys for Amici Curiae

BEST AVAILABLE COPY

TABLE OF CONTENTS

TABLE OF ALITERMRIEIES sec ceW al vveswenseees¥e ill

INTEREST OF AMICI CURIAE TRIBES .............. l

SUMMARY OF ARGUMENT ..........ccccccccnees 2

po eee nares Pet ener eee rey -

I. TRIBAL COURTS RETAIN CIVIL

ADJUDICATORY JURISDICTION OVER

ACTIONS BETWEEN INDIANS AND NON-

INDIANS THAT ARISE ON INDIAN LANDS ..... +

A. This Court has long held that tribal courts

have inherent sovereign authority to

adjudicate civil disputes between Indians

and non-Indians arising on Indian lands ....... 4

B. The decisions in Strate and Montana

recognize that Indian tribes have inherent

_ sovereign authority to exercise civil

jurisdiction over non-Indians on Indian

EE 5 CARER ORES PRR AO h A eae RARER ERK 10

C. Strate establishes that the main rule of

Montana and the two Montana exceptions

only apply to the exercise of tribal

inherent sovereign authority over non-

Indians on non-Indian-owned fee lands ....... 14

D. In furtherance of the Self-Determination

policy Congress has encouraged tribal

courts to develop and operate effectively,

and recognized that these courts exercise

general civil adjudicatory jurisdiction over

Pe ee ere re ee eee 17

E. The power to adjudicate civil disputes

arising on a sovereign’s territory, whether

involving citizens or non-citizens, is

essential to the success of the Self-

Determination policy and a necessary

attribute of sovereignty for Indian tribes as

well as other governments ................. 21

COLA 5.0 6.00 sno siqe cn tn eeheee unre enes 25

ili

TABLE OF AUTHORITIES

CASES:

Brendale v. Confederated Tribes and Bands

of Yakima Indian Nation,

ia ia im an pA mks Maebd¥ x 4s 15

California v. Cabazon Band of Indians,

I EES sei ka kW aes ba doaanees i, if oven

Central Machinery Co. v. Arizona Tax Comm'n,

a eid a i waged keee sae bee's 22

Cohens v. Virginia,

Sr aREn Ge WOM PAPO TRDBED vi cnc ssc cckensassccurs 25

El Paso Natural Gas Co. v. Neztsosie,

eed bade Kuh e ok a00 wanted s 9,14

Fisher v. District Court,

EI eee 8

Hartford Fire Ins. Co. v. California,

ae ree 12

Iowa Mutual Ins. Co. v. LaPlante,

ONG 6 b-6 bb aninh 0a bo 08 6 passim

McClanahan v. Arizona State Tax Comm'n,

on sk ee 6A 66 aw ke bs aban ed oe 7

Merrion v. Jicarilla Apache Tribe,

eh ets a see eesanvecavace passim

Montana v. United States,

owes esters adeeseceese passim

Morris v. Hitchcock,

ales 5b da Ein weed Ree oes kee 11

National Farmers Union Ins. Cos. v. Crow Tribe

of Indians,

pki BO fe. er errr rere er ee passim

New Mexico v. Mescalero Apache Tribe,

Oe Ws Sr oo 5a nse ee bee seceeus ay Rhy Bee

Oliphant v. Suquamish Indian Tribe,

eee Fi | Pe er eye rie errr 2,9

Ramah Navajo Sch. Bd. v. Bureau of Revenue,

Ee Ghee BOE COE 5 hie S855 8 eS 2 a Chinen 408559 22

Santa Clara Pueblo v. Martinez,

s,m re er ee er rare ey 2,8

South Dakota v. Bourland,

RE SE ee ee ee rer rr rer ere 15

Strate v. A-] Contractors,

po SER Se ere Serres See passim

Talton v. Mayes,

Se Shas SO oo Wk has c 04 eee eee eeduanetess 5

Three Affiliated Tribes of the Fort Berthold Reservation

v. Wold Eng’g,

8k eg) ero rer Perey pe reas Tee 7

United States v. Mazurie,

Ee Mi ee OEE os aid obo ER S4e cok eee 12

United States v. Wheeler,

Cas PETES ho dns 6 ee ees Ke 4,9

United States ex rel. Mackey v. Cox,

pk Belg Yt :.) area 5

Washington v. Confederated Tribes of the Colville

Indian Reservation,

ar Ss Re ob én Sk cube hea es eknee 2, 11, tad

White Mountain Apache Tribe v. Bracker,

OD Ss BO ERD 6 6. 5b cn eskn cack oe cee 21

Williams v. Lee,

See BEE EEPMO 5 555s Node erede ct passim

Worcester v. Georgia,

De Mice ed PEt HOMER okt hoch kab uwnaed bb adee les 6

STATUTES:

Indian Civil Rights Act of 1968,

RF tied Gee nears a 20 CN oR wd eas 17

Indian Reorganization Act of 1934,

ee gs eM, fv ko oe bv ks bees bad ees 6

Indian Tribal Justice Act,

bet Ss WOE, fia wah chk cd chcabcdeeee passim

LEGISLATIVE MATERIALS AND RULES

H. Rep. No. 205, 103d Cong.,

REN: CEI oN ss cA es aa dwn Guan a 18, 19

S. Rep. No. 88, 103d Cong.,

oe ee anenin wer ere | 18, 19, 20

H.R. Conf. Rep. No. 383, 103d Cong.,

Sn NE iG Sa PEAR eC oe oceans eee 19

139 Cong. Rec. H10259 (daily ed. Nov. 19, 1993) ...... 18

139 Cong. Rec. $9172 (daily ed. July 21, 1993) ..... 20, 21

GR: Dc Dre as Skee eax es ea hace eee l

Sk rr rong Chien eh eg Merit fui is” l

OTHER:

HENRY M. HART, JR. AND ALBERT M. SACKS,

THE LEGAL PROCESS: BASIC PROBLEMS IN THE |

MAKING AND APPLICATION OF LAW (Eskridge

oe ee er Peery eee ee 25

INTEREST OF AMICI CURIAE TRIBES’

Amici, Confederated Tribes of the Colville Reservation,

Ho-Chunk Nation, Pueblo of Isleta, Lac du Flambeau Band of

Lake Superior Chippewa, and St. Croix Chippewa Indians of

Wisconsin, respectfully submit this brief amici curiae in

support of Respondents by and through their attorneys pursuant

to Sup. Ct. R. 37.3. Amici are all federally-recognized Indian

tribes. Amici tribes have established tribal courts to enforce

applicable law and resolve disputes arising on reservation

lands. All amici tribes are engaged in efforts to pursue self-

determination and self-sufficiency. Non-Indians are frequently

present on amici tribes’ lands as residents, tourists, employees,

in connection with leases, contracts, or routine day-to-day

interaction with tribal government and enterprises, or as patrons

of tribal businesses. With the increased commercial activity

occurring on Indian lands in recent years, amici have

experienced a steady increase in civil cases involving non-

Indians in their tribal courts. The tribal courts regularly hear

and resolve civil disputes involving non-Indians arising on

Indian lands. Amici consider recognition of tribal civil

adjudicatory jurisdiction essential, indeed critical, to the

maintenance of a stable, well-ordered civil society and to their

ability to provide a rule of law which governs the expectations

of persons and entities living, visiting, and doing business in

amici’s tribal territory. Therefore, amici have an interest in a

recognition of their sovereign authority to establish and

maintain tribal courts to adjudicate civil disputes involving

non-Indians that arise on Indian lands.

' The parties have consented to the filing of this brief in letters that

have been submitted to the Clerk. See Sup. Ct. R. 37.3(a). Pursuant to Sup.

Ct. R. 37.6, counsel for amici state that no counsel for a party authored this

brief in whole or in part and no person, other than amici and their counsel

made a monetary contribution to the preparation or submission of this brief.

SUMMARY OF ARGUMENT

1. This Court established in Williams v. Lee, 358 U.S.217

(1959) that Indian tribes have retained their power to adjudicate

civil disputes between Indians and non-Indians arising on

Indian lands. In this regard, it was settled in National Farmers

Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985)

that “the reasoning of Oliphant [v. Suquamish Indian Tribe,

435 U.S. 191 (1978)] does not apply” to bar tribal courts from

adjudicating civil suits against non-Indian parties. 471 US. at

854-55. The Court’s statement in Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 65 (1978), that “[t]ribal courts have

repeatedly been recognized as appropriate forums for the

exclusive adjudication of disputes affecting important personal

and property interests of both Indians and non-Indians,” thus

reflects settled law.

2. This Court’s recognition in Strate v. A-] Contractors,

520 U.S. 438 (1997) that “tribes retain considerable control

over nonmember conduct on tribal land,” id. at 454, is in

accord with Williams and is confirmed by the decisions of this

Court upholding tribal civil regulatory authority over non-

Indians on Indian land. See, e.g., New Mexico v. Mescalero

Apache, 462 U.S. 324 (1983); Merrion v. Jicarilla Apache

Tribe, 455 U.S. 130 (1982); Washington v. Confederated

Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980).

These decisions confirm the existence of tribal civil

adjudicatory jurisdiction over non-Indians, for “where tribes

possess authority to regulate the activities of nonmembers,

‘civil jurisdiction over [disputes arising out of] such activities

presumptively lies in the tribal courts.” Strate, 520 U.S. at 453

(quoting Jowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 18

(1987)). Alternatively, tribal civil jurisdiction over such

disputes is sustained by the tribes’ power to exclude non-

Indians from such lands, which includes the power to condition

non-Indian conduct on Indian lands. Merrion, 455 U.S. at 144.

3. As the Court in Strate made clear, the main rule and

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

apply only to claims of tribal civil jurisdiction over non-Indian

activity on non-Indian-owned fee land. Strate, 520 U.S. at 456-

60. The nature of the distinction between non-Indian owned

fee land and Indian land is apparent from the Montana

decision, in which the Court considered the effect of a statute

that had taken Indian land to provide it to homesteaders. As to

such lands, the Court stated, Congress would not have intended

to subject the purchaser to tribal jurisdiction. Montana, 450

U.S. at 560 n.9. Similarly, in Strate, the Court held that the

tribe had lost its right to exercise dominion or control over the

right-of-way, which was open to the public as part of the State

higaway system. See Strate, 520 U.S. at 455-56. The

distinction reflected in these cases has no application to Indian

lands. However, even if one assumes, arguendo, that the

Montana exceptions have some application to Indian lands,

tribal civil adjudicatory jurisdiction is sustained under these

exceptions for the reasons stated in points 1 and 2 above.

4. Congress has “consistently encouraged the .. .

development” of tribal courts. LaPlante, 480 U.S. at 14-15 n.6.

In 1993, for example, Congress enacted the Indian Tribal

Justice Act, 25 U.S.C. §§ 3601 et seg., inter alia to provide

federal funding support for tribal courts equal to that of

equivalent state courts. In the 1993 Act, Congress recognized

that “tribal justice systems are an essential part of tribal

governments and serve as important forums for ensuring public

health and safety and the political integrity of tribal

governments.” 25 U.S.C. § 3601(5).

5. Indian tribes are pursuing the federal goals of self-

determination and self-sufficiency by seeking to improve the

reservation environment for all persons interested in tribal

affairs, whether for social, entertainment, community, or

business purposes. Their success to date has made the

‘ieee i

importance of tribal civil adjudicatory jurisdiction over disputes

involving non-Indians arising in tribal territory even more

apparent. Such jurisdiction is essential to the tribe’s ability to

maintain a stable environment for community and business

growth, and to the achievement of the Congressional goals of

tribal self-determination and tribal self-sufficiency.

ARGUMENT

I. TRIBAL COURTS RETAIN CIVIL

ADJUDICATORY JURISDICTION OVER

ACTIONS BETWEEN INDIANS AND NON-

INDIANS THAT ARISE ON INDIAN LANDS

A. This Court has long held that tribal courts have

inherent sovereign authority to adjudicate civil

disputes between Indians and non-Indians

arising on Indian lands

“Originally the Indian tribes were separate nations within |

what is now the United States.” Williams v. Lee, 358 U.S. 217,

218 (1959). As separate nations they “exercised virtually

unlimited power over their own members as well as those who

were permitted to join their communities.” National Farmers

Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 851

(1985). Then, as now, Indian tribes relied on their inherent

sovereignty as a source of power to govern. As the Court

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

“t]he sovereignty that the Indian tribes retain is of a unique and

limited character. It exists only at the sufferance of Congress |

and is subject to complete defeasance. But until Congress acts,

the tribes retain their existing sovereign powers. In sum, Indian

tribes still possess those aspects of sovereignty not withdrawn

by treaty or statute, or by implication as a necessary result of

their dependent status.” Wheeler, 435 U.S. at 323.

That tribal inherent sovereign authority includes judicial

power in civil and criminal matters was decided long ago. In

United States ex rel. Mackey v. Cox, 59 U.S. (18 How.) 100

(1856), the Court held that letters of administration granted by

the Cherokee Nation’s probate court were entitled to full faith

and credit under the terms of an 1812 Act which authorized

persons holding such letters when issued “by the proper

authority in any of the United States or the territories thereof,”

to bring suit in the District of Columbia as if the letters of

administration had been granted there. Jd. at 103. In Talton v.

Mayes, 163 U.S. 376 (1896), a Cherokee Indian had challenged

his murder conviction in tribal court on the ground that he had

been indicted by a grand jury consisting of only five jurors in

violation of the Fifth Amendment of the U.S. Constitution and

the Constitution and laws of the Cherokee Nation. The Court

held that the Cherokee Nation’s powers of self-government

existed prior to the Constitution and were not operated upon by

the Fifth Amendment, id. at 384, and that the claim made under

tribal law “was solely a matter within the jurisdiction of the

courts of that nation.” Jd. at 385.

That Indian tribes have retained their power to adjudicate

civil disputes between Indians and non-Indians that arise on

Indian lands was established in Williams v. Lee, which in turn

relied principally on the historic decision in Worcester v.

Georgia, 31 U.S. (6 Pet.) 515 (1832). As the Williams Court

explained, Worcester arose from Georgia’s enactment of laws

that sought to prohibit the Cherokee Nation “from enacting

laws or holding courts and [that] prohibited outsiders from

being on the Reservation [without the] . . . permission of the

State Governor.” Williams, 358 U.S. at 218 (emphasis added).

“Chief Justice Marshall held that Georgia’s assertion of power

was invalid. The Cherokee Nation . . . is a distinct community,

occupying its own territory . . . in which the laws of Georgia

can have no force, and which the citizens of Georgia have no

right to enter, but with the assent of the Cherokees themselves,

or in conformity with treaties, and with the acts of Congress.”

Id. at 219 (emphasis added) (quoting Worcester, 6 Pet. at 561).

The Williams Court then held that while the principles of

Worcester have been modified “where essential tribal relations

were not involved and where the rights of Indians would not be

jeopardized . . . the basic policy of Worcester has remained.”

Williams, 358 U.S. at 219.

Congress had recognized these same principles, the Court

further found. In 1834, Congress acted to “assure adequate

government of the Indian tribes” by enacting statutes that

regulated trade with Indian tribes and organizing a Department

of Indian Affairs. Jd. at220. A century later, Congress enacted

the Indian Reorganization Act of 1934, 25 U.S.C. §§ 461 et

seqg., which sought to “encourage[] tribal governments and

courts to become stronger and more highly organized.” Jd.

Furthermore, the Court held when Congress has intended to

grant the States “the jurisdiction which Worcester v. Georgia

had denied” it has done so expressly. Jd. at 221 (footnote

omitted).

Applying these principles, Williams ruled that the Tribe

had exclusive jurisdiction over a civil suit by a non-Indian

reservation trader to collect a debt from an Indian, because “the

exercise of state jurisdiction . .. would undermine the authority

of the tribal courts over Reservation affairs and hence would

infringe on the right of the Indians to govern themselves.” Jd.

at 223. In so holding, the Court recognized, relying on

Worcester, that relations between Indians and non-Indians on

tribal territory are properly considered an internal affair of the

Tribes, and are subject to the exercise of tribal jurisdiction.

“Implicit in these treaty terms, as it was in the treaties with the

Cherokees . . . was the understanding that the internal affairs of

the Indians remained exclusively within the jurisdiction of

whatever tribal government existed.” Jd. at 221-22. Thus, the

Court held, “[i]t is immaterial that respondent is not an Indian.

He was on the Reservation and the transaction with an Indian

took place there.” Jd. at 223 (citations omitted). The principles

of Williams apply whether the plaintiff is an Indian and the

defendant a non-Indian, or vice-versa. In both cases, tribal

jurisdiction over such disputes is essential to tribal self-

government, for the exercise of such jurisdiction is necessary

not only to insure the resolution of such conflicts in an

efficient, fair and peaceful manner, but also to provide the rule

of law which governs the expectations of persons and entities

living, visiting and doing business in tribal territory. In the

absence of such authority, Indian tribes would be deprived of

the power to make the common law that governs sovereign

territory and relations between persons and entities — Indians

and non-Indian — that are present there. This is a critical

element of the right to self-government for any sovereign.’

Williams thus conclusively sustains a tribal court’s authority to

determine disputes involving a non-Indian party that arise in

tribal territory. See also McClanahan v. Arizona State Tax

Comm'n, 411 U.S. 164, 179 (1973) (“cases applying the

Williams test have dealt principally with situations involving

non-Indians”).

The principles of Williams have also served as the

foundation for this Court’s decisions recognizing the

importance of the civil jurisdiction of tribal courts. It was well

established two decades ago that “[t]ribal courts have

repeatedly been recognized as appropriate forums for the

exclusive adjudication of disputes affecting important personal

> The question of the existence of tribal civil adjudicatory jurisdiction

is obviously distinct from the issue of whether a state court has jurisdiction

over an Indian’s voluntary filing of an action in state court as a plaintiff.

See Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Eng’g,

476 U.S. 877 (1986).

and property interests of both Indians and non-Indians.” Santa

Clara Pueblo v. Martinez, 436 U.S. 49, 65 (1978) (footnote

omitted). The protection that Williams affords from State

jurisdiction also remains in force, as the Court made clear in

Strate v. A-]1 Contractors, 520 U.S. 438 (1997). “[S]tate courts

may not exercise jurisdiction over disputes arising out of on-

reservation conduct — even over matters involving non-Indians

— if doing so would ‘infringfe] on the night of reservation

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

520 U.S. at 452-53 (quoting Fisher v. District Court, 424 U.S.

382, 386 (1976) (quoting Williams, 359 U.S. at 220)). As these

decisions recognize, litigation in a forum other than the tribe’s

simply “cannot help but unsettle a tribal government's ability to

maintain authority.” Santa Clara Pueblo, 436 U.S. at 60.

The policy of Williams is further reflected in the tribal

court exhaustion rule announced by this Court in National

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

845 (1985) and reaffirmed in Jowa Mutual Ins. Co. v. LaPlante,

480 U.S. 9 (1987). The Court concluded in LaPlante that the

assumption of jurisdiction over reservation affairs “by any

nontribal court... infringes upon tribal law-making authority,

because tribal courts are best qualified to interpret and apply

tribal law.” LaPlante, 480 U.S. at 16. In order to further the

federal policies of tribal self-government and _ self-

determination, the orderly administration of justice, and to

secure the benefits of the tribal court’s expertise, the exhaustion

rule requires that challenges to tribal court jurisdiction be heard

first in tribal court. See National Farmers Union, 471 US. at

856-58.

As Santa Clara Pueblo and the exhaustion rule cases

confirm, tribal courts have the authority and responsibility to

decide questions of federal law, including claims under the

Indian Civil Rights Aci, Santa Clara Pueblo, 436 U.S. at 65-

66, and federal law challenges to the subject matter jurisdiction

of tribal courts. As the Court explained in E/ Paso Natural Gas

Co. v. Neztsosie, 526 U.S. 473 (1999), “[ujnder normal

circumstances, tribal courts, like state courts, can and do decide

questions of federal law ....” Jd. at 485 n.7.

It is also clear that the jurisdiction of tribal courts over

non-Indians in civil matters is not limited as it is in criminal

cases. As the Court held in National Farmers Union, “(flor

several reasons . . . the reasoning of Oliphant [v. Suquamish

Indian Tribe, 435 U.S. 191 (1978)] does not apply” to bar tribal

courts from adjudicating civil suits against non-Indians.

National Farmers Union, 471 U.S. at 854. The Court

reaffirmed this holding in LaPlante, 480 U.S. at 15. As the

Court explained in National Farmers Union, while Congress

created federal criminal jurisdiction over non-Indians

committing crimes on reservations, “there is no comparable

legislation granting the federal courts jurisdiction over civil

disputes between Indians and non-Indians that arise on an

Indian reservation.” National Farmers Union, 471 U.S. at 854

(footnote omitted). Furthermore, the Court observed that the

Attorney General’s Opinion of the mid-nineteenth century

relied on in Oliphant had concluded that tribes had no criminal

jurisdiction over non-Indians but did retain the power to

determine civil controversies arising on their reservations. Jd.

at 854-55.

The decisions of this Court thus establish that Indian tribes

retain the full scope of their civil jurisdiction over non-Indian

activity on Indian lands, and that this is an “aspect[] of

sovereignty not withdrawn by treaty or statute, or by

implication as a necessary result of their dependent status.”

Wheeler, 435 U.S. at 323 (citation omitted). Williams

recognizes, as does Worcester, that control of non-Indian

conduct on Indian lands is within the scope of a tribe’s internal

affairs, over which tribal authority is retained and that the

exercise of tribal civil adjudicatory jurisdiction over disputes

between Indians and non-Indians arising on Indian lands is

essential to tribal self-government. Williams, 358 U.S. at 221-

23. Indian tribes were certainly not divested of this authority

by treaty, as Williams and Worcester show. Nor is there any

basis for such a claim in the federal statutes — to the contrary,

as we show infra, Congress has been steadfast in its support for

tribal courts, and has recognized their jurisdiction over Indians

and non-Indians. Indeed, the Court in LaPlante expressly

rejected a claim that the federal grant of diversity jurisdiction

had limited the civil jurisdiction of tribal courts, LaPlante, 480

U.S. at 18, a holding which Strate reaffirms. See Strate, 520

U.S. at 452. Finally, as we have shown, settled law makes clear

that Indian tribes have not been implicitly divested of their civil

jurisdiction over suits against non-Indians pursuant to the

principles of Oliphant. See LaPlante, 480 U.S. at 15; National

Farmers Union, 471 U.S. at 854-55.

B. The decisions in Strate and Montana recognize that

Indian tribes have inherent sovereign authority to

exercise civil jurisdiction over non-Indians on

Indian lands

The decisions in Strate v. A-] Contractors, 520 U.S. 438

(1997) and Montana v. United States, 450 U.S. 544 (1981) both

expressly recognize that tribal civil jurisdiction extends over

non-Indians on Indian lands. In Montana, the Court held that

it could “readily agree” with the ruling of the Court of Appeals

“that the Tribe may prohibit nonmembers from hunting and

fishing on land belonging to the Tribe or held by the United

States in trust for the Tribe.” Montana, 450 U.S. at 557. In

Strate, the Court reaffirmed this ruling and the broader

principle that “tribes retain considerable control over

nonmember conduct on tribal land.” Strate, 520 U.S. at 454

(footnote omitted).

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The Court’s conclusions reflect well-settled law. As we

have shown above, Williams establishes that tribal inherent

sovereign power to adjudicate civil disputes involving Indians

and non-Indians on Indian lands has been retained. The Court

has also made clear that Indian tribes have broad civil

regulatory authority over non-Indian activity on Indian lands.

As the Court held in New Mexico v. Mescalero Apache Tribe,

462 U.S. 324 (1983), “tribes have the power to manage the use

of their territory and resources by both members and

nonmembers . . . to undertake and regulate economic activity

within the reservation . . . and to defray the cost of

governmental services by levying taxes.” Jd. at 335-36

(citations omitted). Indeed, in Mescalero, the Court expressly

relied on Montana in upholding tribal power to regulate the use

of tribal lands and resources, including wildlife, on tribal

territory. Jd. at 337. In Merrion v. Jicarilla Apache Tribe, 455

U.S. 130 (1982) and Washington v. Confederated Tribes of the

Colville Indian Reservation, 447 U.S. 134 (1980), the Court

upheld tribal inherent sovereign authority to tax non-Indian

activity on tribal land.’ In addition, in California v. Cabazon

> These cases followed and relied on the Court’s earlier decision

sustaining a tribal permit tax imposed on non-Indians in Morris v.

Hitchcock, 194 U.S. 384 (1904). See Merrion, 455 U.S. at 142; Colville,

447 US. at 153.

The Court in Colville relied upon opinions by “Executive Branch

officials . . . [that] consistently recognized that Indian tribes possess a broad

measure of civil jurisdiction over the activities of non-Indians on Indian

reservation lands in which the tribes have a significant interest,” id. at 152,

and observed that “[fJederal courts also have acknowledged tribal power to

tax non-Indians entering the reservation to engage in economic activity” and

that “[n]Jo federal statute . . . shows any congressional departure from this

view.” Jd. at 153. The Court held that “[i]n these respects the present cases

differ sharply from Oliphant . . . in which we stressed the shared

assumptions of the Executive, Judicial and Legislative Departments that

Indian tribes could not exercise criminal jurisdiction over non-Indians.” /d.

Band of Indians, 480 U.S. 202 (1987), the Court specifically

upheld the power of Indian tribes to conduct gaming activities

on Indian lands free from state jurisdiction and control. Jd. at

221-22. These cases make clear, as the Court held in United

States v. Mazurie, 419 U.S. 544 (1975), that Indian tribes “are

unique aggregations possessing attributes of sovereignty over

both their members and their territory.” Id. at 557 (emphasis

added).

The broad scope of tribal civil regulatory jurisdiction

recognized by these decisions confirms the existence of tribal

civil adjudicatory jurisdiction over disputes between Indians

and non-Indians arising on Indian lands. In Strate, the Court

recognized the broad scope of tribal civil adjudicatory

jurisdiction by holding that “where tribes possess authority to

regulate the activities of nonmembers, ‘[c]ivil jurisdiction over

[disputes arising out of] such activities presumptively lies in the

tribal courts.”” Strate, 520 U.S. at 453 (quoting LaPlante, 480

USS. at 18).

Thus, when nonmembers are engaged in activities on

Indian lands over which tribal regulatory authority extends,

whether these activities involve entertainment as in Cabazon,

recreation as in Mescalero, consumer sales as in Colville,

commercial transactions as in Merrion, or participation in

internal tribal relations, as in Williams and Santa Clara, their

activities are within the scope of the tribes’ civil adjudicatory

jurisdiction. Indeed, the role of the court in such disputes is that

of a neutral arbiter, rather than active like a legislature,

regulatory body or criminal prosecutor. See Hartford Fire Ins.

Co. v. California, 509 U.S. 764, 813 (1993) (“legislative

jurisdiction] refers to the ‘authority of a state to make its law

applicable to persons or activities’, and is quite a separate

Thus, the Court concluded in Colville that tribal civil powers to tax “are not

implicitly divested by virtue of the tribes’ dependent status.” Jd.

matter from ‘jurisdiction to adjudicate””’) (Scalia, J., dissenting)

(citations omitted).

When disputes arise from non-Indian presence in

connection with these activities, whether sounding in tort,

contract, arising under a statute or otherwise, the power of the

tribal court to resolve such disputes is recognized. Non-

Indians entering a reservation depend upon the existence of a

stable legal system and tribal court to resolve any civil dispute

that may arise concerning their activities. The provision of

such a system, like “police protection and other governmental

services” is part of “the advantages of a civilized society that

are assured by the existence of tribal government.” Merrion,

455 US. at 137-38 (citations and internal quotations omitted).

In sum, that power, like the power to tax, is “an essential

attribute of Indian sovereignty because it is a necessary

instrument of self-government and territorial management.” Jd.

at 137.

Tribal power to adjudicate civil disputes that arise on

Indian lands is also sustained by the tribes’ civil regulatory

power to exclude non-Indians from such lands. That power

includes the authority to condition non-Indian entry onto Indian

lands. See Mescalero, 462 U.S. at 333. “Nonmembers who

lawfully enter tribal lands remain subject to the power to

exclude them. This power necessarily includes the lesser

power to place conditions on entry, on continued presence, or

on reservation conduct.” Merrion, 455 U.S. at 144. Tribal

civil adjudicatory jurisdiction over non-Indians may therefore

be sustained as a condition to non-Indian entry, presence and

conduct on Indian lands. This condition is plainly reasonable

— anyone entering the territory of another sovereign surely

expects that disputes arising from their activities will be subject

to adjudication in the courts of that sovereign. And anyone

desiring to avoid being subject to such authority may decline to

enter such lands.

C. Strate establishes that the main rule of Montana

and the two Montana exceptions only apply to the

exercise of tribal inherent sovereign authority over i

non-Indians on non-Indian-owned fee lands

While recognizing tribal civil jurisdiction over non-Indians i

on Indian lands, Strate and Montana both rejected claims of

tribal civil jurisdiction over non-Indian activity on non-Indian-

owned fee land. Strate, 520 U.S. at 456-60; Montana, 450 U.S.

at 563-567. In so doing, the Court made clear that Montana’s

main rule and exceptions apply only to claims arising on non-

Indian-owned fee lands.

As the Court in Strate made clear, Montana “describes a

general rule that, absent a different congressional direction,

Indian tribes lack civil authority over the conduct of

nonmembers on non-Indian land within a reservation, subject

to two exceptions.” Strate, 520 U.S. at 446 (emphasis added).

The Court applied Montana based on its prior determination

that “the right-of-way, for the purpose at hand [is aligned] with '

land alienated to non-Indians.” Jd. at 456. On this basis, the )

Court held that “[oJur decision in Montana, accordingly, ;

governs this case.” Jd. Strate thus confirms that “/r]egarding

activity on non-Indian fee land, Montana delineated — in a main !

rule and exceptions — the bounds of the power tribes retain to |

exercise ‘forms of civil jurisdiction over non-Indians.’” Jd. at

453 (emphasis added) (internal citations omitted).

Even if Strate had not made this clear, there is certainly

nothing in Montana to suggest that either the main rule or the

exceptions apply to determine the scope of tribal authority over

non-Indian activity on Indian lands. The Montana Court

plainly did not apply either the main rule or the exceptions in

concluding that tribal power extends to such activity on Indian

lands. Montana, 450 U.S. at 557. Finally, if more were

needed, the decision in E/] Paso Natural Gas Co. v. Neztsosie,

——

526 U.S. 473 (1999), confirms that Strate, and hence Montana,

apply only to situations involving non-Indian owned fee land.

As Justice Souter stated for a unanimous Court “Strate dealt

[only] with claims against non-members arising on state

highways.” Jd. at 482 n.4.

More fundamentally, the Court’s rulings in Williams,

Mescalero, Merrion, Colville, and Cabazon establish that on

Indian lands, tribal civil jurisdiction exists over Indians and

non-Indians alike, and is an element of the tribes’ inherent

sovereign authority. These cases show that on such lands, there

is simply no basis for the contention that tribal inherent power

in civil matters has been curtailed. In sum, on Indian lands the

existence of tribal civil jurisdiction reflects well-settled law,

and is part of the expectations of Indians and non-Indians alike.

Furthermore, the distinction made in Montana and Strate

between Indian land and non-Indian owned fee land is clear

from these decisions, as well as in those in Brendale v.

Confederated Tribes and Bands of Yakima Indian Nation, 492

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

(1993).* In Montana, Brendale and Bourland, the Court

considered statutes by which Congress had taken Indian land

for the specific purpose of opening reservations to

homesteaders or taking lands for flood control projects. The

Court concluded in these cases that Congress had also divested

tribes of regulatory control over non-Indians on these lands,

relying on congressional intent in those statutes. E.g.,

Montana, 450 U.S. at 559-61; Brendale, 492 U.S. at 422-23

(opinion of Justice White), 435-37, 441-42, 446-47 (opinion of

Justice Stevens); Bourland, 508 U.S. at 689-94. For example,

* These decisions confirm that tribal civil jurisdiction over non-Indian

activity on non-Indian owned fee land may be shown under the Montana

exceptions. Strate, 520 U.S. at 456-60; Montana, 450 U.S. at 565-67;

Bourland, 508 U.S. at 695-96; Brendale, 492 U.S. at 443-44, 456-59.

as the Court explained in Montana, Congress would not have

intended “that non-Indians purchasing allotted lands would

become subject to tribal jurisdiction. . . .” Montana, 450 U.S.

at 560 n.9. Similarly, in Strate, the Court’s holding that the

highway right-of-way on which the claim arose was the

equivalent of non-Indian-owned fee land for purposes of the

jurisdictional issue turned on the Court’s determination that the

right-of-way was congressionally-authorized and had been

issued with tribal consent, that the tribe had lost its right to

exercise dominion or control over the right-of-way, and that the

right-of-way was open to the public as part of the State

highway system. Strate, 520 U.S. at 455-56. None of the

circumstances present in these cases have application to Indian

lands, where the rule is otherwise.

However, even if one assumes, arguendo, that the

Montana exceptions have some application to claims of tribal

civil adjudicatory jurisdiction over claims arising from non-

Indian activity on Indian land, the exercise of this jurisdiction

is authorized here.

The first Montana exception “covers ‘activities of

nonmembers who enter consensual relationships with the tribe

or its members, through commercial . ating, contracts, leases,

or other arrangements.’” Strate, 520 U.S. at 456-57 (quoting

Montana, 450 U.S. at 565). If “consensual relationships” are

required for a tribal court to exercise jurisdiction over a civil

case arising on Indian land, then the consensual presence of

non-Indians on Indian land establishes such a relationship, ana

authorizes the exercise of civil adjudicatory jurisdiction for the

reasons shown supra at 4-13. The second exception,

concerning “conduct that ‘threaten: ur has some direct effect on

the political integrity, economic security, or the health or

welfare of the tribe,”” id. at 457 (quoting Montana, 450 U.S. at

566), is also satisfied when a dispute arises on Indian land.

This is confirmed by the Strate Court’s reliance on Williams to

illustrate a case in which the exercise of tribal jurisdiction is

authorized by the second exception. Strate, 520 U.S. at 458-59.

For the reasons shown supra at 4-10, the exercise of tribal civil

adjudicatory jurisdiction over claims arising on Indian lands is

necessary to preserve the right of reservation Indians to make

their own laws and be ruled by them and is thus authorized by

the second exception.

D. In furtherance of the Self-Determination policy

Congress has encouraged tribal courts to develop

and operate effectively, and recognized that these

courts exercise general civil adjudicatory

jurisdiction over non-Indians

As the Court acknowledged in LaPlante, “[t]ribal courts

play a vital role in tribal self-government . . . and the Federal

Government has consistently encouraged their development.”

LaPlante, 480 U.S. at 14-15. In 1934, when Congress enacted

the Indian Reorganization Act, federal policy “encouraged

tribal governments and courts to become stronger and more

highly organized.” Williams, 358 U.S. at 220. Congress later

enacted the Indian Civil Rights Act of 1968, 25 U.S.C. §1301

et seg., which requires tribal courts to adhere to most

requirements of the Bill of Rights and the Fourteenth

Amendment, provides special training for tribal judges and

directs the Interior Department to prepare a model code to

govern the tribes’ administration of justice. Jd. §§ 1302, 1311.

In 1993, Congress enacted the Indian Tribal Justice Act

(“ITJA”), 25 U.S.C. § 3601 et seg., which established the

Office of Tribal Justice Support within the Bureau of Indian

Affairs to provide funds, training and technical assistance to

tribal court systems. Jd. § 3611. The Act also established a

new system for base support funding for tribal justice systems,

id. § 3615, and authorized $50 million a year to be appropriated

for this purpose, id. § 3621(b) — which was about four times the

size of prior federal support provided to tribal courts. See H.R.

Rep. No. 205, 103d Cong., Ist Sess. 27 (1993) (hereinafter

“House Report”); S. Rep. No. 88, 103d Cong., Ist Sess. 3

(1993) (hereinafter “Senate Report”). The increase in funding

implements recommendations of the United States Commission

on Civil Rights that spending for tribal courts be authorized in

amounts equal to that of equivalent state courts. See 139 Cong.

Rec. H10259, H10262 (daily ed. Nov. 19, 1993) (statement of

Rep. Miller, Chairman, House Committee on Interior and

Insular Affairs). In addition, $7,000,000 per year was

authorized to assist tribal courts in developing tribal codes and

rules of procedure, tribal court administrative procedures and

court records management systems, and tribal standards for

judicial administration and conduct. See 25 U.S.C. §§ 361 1(e),

3621(a).

In enacting the ITJA, Congress found that “Indian tribes

possess the inherent authority to establish . . . tribal justice

systems” and that “Congress and the Federal courts have

repeatedly recognized tribal justice systems as the appropriate

forums for the adjudication of disputes affecting personal and

property rights.” 25 U.S:C. § 3601(4), (6). As the Senate

Report shows, the latter finding “was added to emphasize that

tribal courts are permanent institutions charged with resolving

the rights and interests of both Indian and non-Indian

individuals.” Senate Report at 8. The House Report reflects

the same understanding, stating that:

As for non-criminal jurisdiction, Indian tribes

have the inherent right to exercise civil

jurisdiction within the territory it [sic]

controls. Tribes exercise a broad range of

civil jurisdiction over the activities of non-

Indians on Indian reservation lands in which

the tribes have a significant interest. Hence,

non-Indians may be sued in tribal court. . . .

The general rule is civil jurisdiction

‘presumptively lies in tribal court, unless

affirmatively limited by a specific treaty

provision or federal statute.’ Jowa Mutual Ins.

Co. v. LaPlante, 480 U.S. (1987) at 18.

House Report at 8-9.°

When it enacted the Indian Tribal Justice Act, Congress

found that “tribal justice systems are an essential part of

tribal governments and serve as important forums for ensuring

health and safety and the political integrity of tribal

governments.” 25 U.S.C. § 3601(5). The Senate Committee

further

public

on Indian Affairs added this finding:

[T]o reflect the decision of the United States

Supreme Court in the case of Montana v.

United States, 450 U.S. 544 (1981), with

regard to the authority of Indian tribal

governments to provide for the protection of

the health and safety of reservation residents

and the political integrity of the tribe. From

all of the testimony presented to the

* The Conference Committee Report likewise stated:

H.R. Conf. Rep. No. 383, 103d Cong., Ist Sess. 13 (1993) (footnote

omitted).

The Conferees recognize the long standing principle that

Indian tribes retain all sovereign authority not expressly

divested by the Congress. This principle was articulated

by the Supreme Court in Jowa Mutual Ins. Co. v.

LaPlante, 480 U.S. 9 (1987). The Supreme Court

recognized that civil jurisdiction on an Indian reservation

“presumptively lies in tribal court, unless affirmatively

limited by a specific treaty provision or federal statute.”

480 U.S. 9 (1987) at 18.

Committee, it is clear that tribal justice

systems are an integral part of the efforts of

Indian tribal governments to exercise that

authority.

Senate Report at 8.

More broadly, the Senate Report concluded that:

Tribal justice systems are critical to the

maintenance and enhancement of the inherent

and delegated sovereignty of tribal

governments. Except when the Congress has

established that federal jurisdiction is

exclusive, tribal courts hear cases on virtually

all aspects of governmental and private

activity. ...

It is the Committee’s view that strong

tribal justice systems are necessary both as a

function of the exercise of tribal sovereignty

and as a means to assure the fair and just

administration of the laws enacted by tribal

governing bodies and laws enacted by the

Congress that require implementation by tribal

governments.

Senate Report at 3. As Senator Inouye, Chairman of the Senate

Indian Committee, told the Senate when he presented the

Indian Tribal Justice Act to the floor:

While it is a bill that reflects compromise,

more fundamentally, it represents the

preservation of the sovereign authority of

tribal governments to determine the future of

their tribal justice systems. Sovereign nations,

no matter how limited or expansive their

sovereignty might be, can only exercise that

sovereignty through the legal systems they

develop to implement civil-and criminal codes

and to enforce regulatory provisions.

139 Cong. Rec. $9172, $9176 (daily ed. July 21, 1993).

As these enactments show, Congress has repeatedly

recognized that tribal courts play a critical role in tribal self-

government, and has encouraged and funded their development,

enacted procedural protections which are enforceable in tribal

courts, and recognized that tribal civil jurisdiction extends to

Indian and non-Indians alike.

E. The power to adjudicate civil disputes arising on a

sovereign’s territory, whether involving citizens or

non-citizens, is essential to the success of the Self-

Determination policy and a necessary attribute of

sovereignty for Indian tribes as well as other

governments

As the Court noted in California v. Cabazon Band of

Mission Indians, 480 U.S. 202 (1987), Congress has enacted

numerous statutes in furtherance of “the congressional goal of

Indian self-government, including its ‘overriding goal’ of

encouraging tribal self-sufficiency and economic

development.” Jd. at 216 & n.19; see also New Mexico v.

Mescalero Apache Tribe, 462 U.S. 324, 334-35 & n.17 (1983);

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

44 (1980). As the Court further recognized in Cabazon,

“[s]elf-determination and economic development are not within

reach if the Tribes cannot raise revenues and provide

employment for their members.” 480 U.S. at 219. Indian tribes

today are pursuing these goals by developing tribal enterprises,

improving the delivery of services to reservation residents and

businesses, and enacting laws to provide a stable environment

for the growth of the reservation residential and business

communities.

All amici tribes are engaged in efforts to pursue self-

determination and self-sufficiency. All amici tribes employ

Indians and non-Indians in tribal government positions as well

as in tribal enterprises. Indeed, approximately 75-80 percent of

the workforce of the amicus Ho-Chunk Nation is non-Indian.

The amici tribes also operate gaming casinos as well as

entertainment and recreational establishments on reservation

lands. Cf California v. Cabazon Band, 480 U.S. 202 (1987).

Amicus Confederated Tribes of the Colville Reservation also

operate numerous enterprises related to its timber resources

which employ hundreds of individuals on the Reservation,

including non-Indians. In addition, private businesses of

different kinds are located on reservation lands of amici Pueblo

of Isleta and Lac du Flambeau Band of Lake Superior

Chippewa Indians of Wisconsin. Furthermore, all amici tribes

engage in various commercial and consumer transactions with

non-Indians on reservation lands. Cf. Central Machinery Co.

v. Arizona Tax Comm'n, 448 U.S. 160 (1980); Merrion v.

Jicarilla Apache Tribe, 455 U.S. 130 (1982); Ramah Navajo

School Bd. v. Bureau of Revenue, 458 U.S. 832 (1982);

Washington v. Confederated Tribes of the Colville Indian

Reservation, 447 U.S. 134 (1980). The Colville Tribes also

frequently enter into contracts with non-Indian business on the

Reservation in connection with their forestry enterprises. The

amici tribes also promote tourism, see e.g., New Mexico v.

Mescalero Apache Tribe, 462 U.S. 324 (1983), which brings

Indian and non-Indians alike to their reservation lands. In

addition, many residents of amici’s reservations are non-

Indians or Indians of other tribes who have married tribal

members.

These actions are improving the environment for the many

and growing number of persons and businesses with an interest

in reservation activities for social, entertainment, community,

and business purposes. At the same time, as participation in

—_—_— Seer a ae = —

reservation activities by Indians and non-Indians increases, the

importance of tribal civil adjudicatory jurisdiction over disputes

arising from these activities becomes more apparent. The

exercise of tribal jurisdiction over disputes arising in tribal

territory is essential to the tribe’s ability to make and apply the

law governing relations between Indians and non-Indians on

Indian lands. A stable reservation legal environment where

civil disputes can be fairly and efficiently resolved is also

essential to the achievement of the Congressional goals of tribal

self-determination and tribal self-sufficiency. Absent such an

environment, tribes will be unable to attract non-Indians to

engage in business transactions, patronize tribal enterprises,

pursue recreational and tourist activities in tribal territory, and

thereby fulfill the congressional purposes. Congress enacted

the Indian Tribal Justice Act to promote the resolution of such

disputes in tribal courts in an effective and predictable fashion.

See 25 U.S.C. § 3601(4), (5) and (6).

This is why the amici tribes have found it essential to

establish tribal courts with general jurisdiction to resolve civil

disputes brought before them that arise on the reservation. On

all of amici tribes’ reservations, the tribal courts, including

appellate courts, regularly adjudicate cases involving non-

Indian parties as plaintiffs and defendants. For example, since

1995, approximately 891 civil cases have been filed in the

Tribal Court of the Pueblo of Isleta. In 157 of these cases one

of the parties was a non-Indian. Of these 157 cases, 65 were

settled out of court, and 51 were resolved in favor of the non-

Indian party. Over the same period, 804 civil cases were filed

in the Tribal Courts of the Ho-Chunk Nation, which does not

generally distinguish between cases filed by members and

nonmembers, but which has confirmed that nonmembers

appear as plaintiffs and defendants in its courts. The cases filed

include general civil matters, child support and domestic

violence cases. The State has also appeared as the plaintiff in

the tribal courts of the amici Lac du Flambeau Band, Pueblo of

Isleta and Ho-Chunk Nation. These cases involve matters such

as enforcement of state court orders, garnishment actions, and

child support. The amicus Colville Tribes have an agreement

with the State of Washington providing for modification and

enforcement of child support awards against tribal members in

tribal court, as a result of which the State appears as plaintiff in

numerous cases in tribal court. County child support agencies

also frequently appear before the Tribal Court of the Ho-Chunk

Nation. Many, if not most, judges in the tribal courts

maintained by amici are lawyers.

As these caseloads indicate, non-Indians who enter a

reservation to do business with a tribe, those who reside on the

reservation, and the States as well, depend upon the tribal court

to resolve civil disputes that arise from their activities and

responsibilities. In these cases, evidence needed for trial is

commonly located on the reservation, often far from (and,

indeed, beyond the subpoena powers of) the nearest state court.

For example, on the Colville Reservation the tribal court is

significantly closer to most locations on the Reservation than

state courts, which are located as far as fifty miles from the

Reservation boundary.

The actions of Congress and this Court protecting the

authority of tribes to establish courts exercising general civil

adjudicatory jurisdiction over reservations are further

complemented by this Court’s more general recognition of the

interests any sovereign has in providing a forum for resolution

of disputes arising on that sovereign’s territory but involving

non-citizens. Chief Justice Marshall long ago noted the

importance to the functions of a government of making courts

available for the resolution of disputes and enforcing the law,

observing:

No government ought to be so defective in its

organization as not to contain within itself the

means of securing the execution of its own

laws against other dangers than those which

occur every day. Courts of justice are the

means most usually employed; and it is

reasonable to expect that a government should

repose on its own courts, rather than on others.

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 387-88 (1821); see

also HENRY M. HART, JR. AND ALBERT M. SACKS, THE LEGAL

PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION

OF LAW, 342-43 (Eskridge and Frickey, ed. 1994) (noting the

dispute settlement function of courts is important “to the good

ordering of society”). These concerns are as important to

Indian tribes as they are to any government.

CONCLUSION

This Court’s established tradition of sustaining tribal court

civil adjudicatory authority over cases involving non-Indians,

Congress’ understanding and treatment of tribal civil

adjudicatory jurisdiction and its specific actions supporting and

strengthening tribal courts, and the fundamental importance of

tribal courts to the successful implementation of the self-

determination policy and to the exercise of tribal self-

government all compel the conclusion that the Fallon Paiute-

Shoshone Tribal Court has inherent tribal sovereignty to

exercise civil adjudicatory jurisdiction over the proceedings

before it.

For the foregoing reasons, amici urge this Court to affirm

the decision of the Ninth Circuit in this case.

January 19, 2001

Respectfully submitted,