Tribal Jurisdiction over Nonmembers: A Legal Overview

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Tribal Jurisdiction over Nonmembers:

A Legal Overview

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June 18, 2015

Congressional Research Service

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R43324

Tribal Jurisdiction over Nonmembers: A Legal Overview

Summary

Indian tribes are quasi-sovereign entities that enjoy all the sovereign powers that are not divested

by Congress or inconsistent with the tribes’ dependence on the United States. As a general rule,

this means that Indian tribes cannot exercise criminal or civil jurisdiction over nonmembers.

There are two exceptions to this rule for criminal jurisdiction. First, tribes may exercise criminal

jurisdiction over nonmember Indians. Second, tribes may try non-Indians who commit dating and

domestic violence crimes against Indians within the tribes’ jurisdictions provided the non-Indians

have sufficient ties to the tribes. There are three exceptions to this rule for civil jurisdiction. First,

tribes may exercise jurisdiction over nonmembers who enter consensual relationships with the

tribe or its members. Second, tribes may exercise jurisdiction over nonmembers within a

reservation when the nonmember’s conduct threatens or has some direct effect on the political

integrity, the economic security, or the health or welfare of the tribe. These first two exceptions,

enunciated in the case of Montana v. United States, are based on the tribes’ inherent sovereignty,

and exercises of jurisdiction under them must relate to a tribe’s right to self-government. Third,

Indian tribes may exercise jurisdiction over nonmembers when Congress authorizes them to do

so. Congress may delegate federal authority to the tribes, or re-vest the tribes with inherent

sovereign authority that they had lost previously. Indian tribes may also exercise jurisdiction over

nonmembers under their power to exclude persons from tribal property. However, it is not clear

whether the power to exclude is independent of the Montana exceptions.

The question of a tribe’s jurisdiction over nonmembers can be very complex. It is fair to say,

however, that tribal jurisdiction over non-Indians is quite limited. Tribal jurisdiction over

nonmember Indians is more extensive. Federal courts, however, consistently require nonmember

defendants to challenge tribal court jurisdiction in tribal court before pursuing relief in federal

court.

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Tribal Jurisdiction over Nonmembers: A Legal Overview

Contents

Introduction...................................................................................................................................... 1

Criminal Jurisdiction ....................................................................................................................... 2

Over Non-Indians ...................................................................................................................... 2

Over Nonmember Indians ......................................................................................................... 4

Civil Jurisdiction .............................................................................................................................. 5

The Montana Exceptions ........................................................................................................... 6

Consensual Relationships.................................................................................................... 7

Threat to the Tribe’s Integrity.............................................................................................. 8

The Power to Exclude ............................................................................................................. 10

Statutory Exceptions ................................................................................................................ 11

Nonmembers Must First Challenge Tribal Court Jurisdiction in Tribal Court ........................ 12

Conclusion ..................................................................................................................................... 12

Contacts

Author Contact Information........................................................................................................... 13

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Tribal Jurisdiction over Nonmembers: A Legal Overview

Introduction

Originally, Indian tribes exercised sovereign authority over their territory and the all people

within it, including non-Indians.1 However, Indian tribes lost some of that authority by “ceding

their lands to the United States and announcing their dependence on the Federal Government.”2

“Indian tribes are prohibited from exercising both those powers of autonomous states that are

expressly terminated by Congress and those powers inconsistent with their status.”3 Express

termination of a tribe’s sovereign authority may be found in treaties and statutes. As to sovereign

authority lost by virtue of the tribes’ status, the Supreme Court has explained, “[t]he areas in

which such implicit divestiture of sovereignty has been held to have occurred are those involving

the relations between an Indian tribe and nonmembers of the tribe.”4 By virtue of their

“dependent status,” therefore, tribes have lost the sovereign authority to determine their relations

with nonmembers.5 Accordingly, in Oliphant v. Suquamish, the Supreme Court held that Indian

tribes do not have inherent sovereign authority to try non-Indian criminal defendants,6 and in

Montana v. United States, the Supreme Court announced the general rule for civil jurisdiction that

“the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of

the tribe.”7

Immediately after announcing this rule for civil jurisdiction in Montana, however, the Court

identified two exceptions, known as the Montana exceptions:

To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil

jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe

may regulate, through taxation, licensing, or other means, the activities of nonmembers who

enter consensual relationships with the tribe or its members, through commercial dealing,

contracts, leases, or other arrangements. A tribe may also retain inherent power to exercise

civil authority over the conduct of non-Indians on fee land within its reservation when that

conduct threatens or has some direct effect on the political integrity, the economic security,

or the health or welfare of the tribe.8

In order to fit within one of these exceptions, nonmember conduct must somehow impinge on a

tribe’s inherent authority to govern itself and its members.9

The Supreme Court has identified the tribes’ right as landowners to exclude nonmembers from

tribal land as one of the bases for upholding tribal taxes against nonmembers’ activities on tribal

See Duro v. Reina, 495 U.S. 676, 685 (1990) (“A basic attribute of full territorial sovereignty is the power to enforce

laws against all who come within the sovereign’s territory, whether citizens or aliens. Oliphant [v. Suquamish]

recognized that tribes can no longer be described as sovereigns in this sense.”).

Oliphant v. Suquamish, 435 U.S. 191, 208 (1978).

Id. (emphasis in original; internal quotations omitted).

United States v. Wheeler, 435 U.S. 313, 326 (1978).

Id. This is not an absolute rule. This report discusses the limited exceptions to it at pages 4-10.

435 U.S. 191 (1978).

450 U.S. 544, 565 (1981). In Montana, the Court considered whether the Tribe had jurisdiction to enforce its hunting

regulations against nonmembers hunting on non-Indian fee land located within the Tribe’s reservation.

Id. at 565-566.

Nevada v. Hicks, 533 U.S., 353, 361 (2001) (“Tribal assertion of regulatory authority over nonmembers must be

connected to that right of the Indians to make their own laws and be governed by them.”).

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land.10 It is unclear, however whether the power to exclude is independent of the Montana

exceptions.11

Tribes may also exercise jurisdiction over nonmembers when Congress authorizes them to do so.

Congress has provided for tribal authority over nonmembers related to the sale of alcohol on

reservations, enforcement of tribal hunting and fishing ordinances on reservations, and

enforcement of certain environmental statutes.

Although tribal jurisdiction over nonmembers is fairly limited, if a nonmember defendant in tribal

court believes the court lacks jurisdiction, he or she must first challenge the jurisdiction in tribal

court.12 Only after exhausting the tribal court remedies may the nonmember get relief in federal

court.

Criminal Jurisdiction

In most cases, tribal criminal jurisdiction over non-Indian offenders is clear—as a general rule,

Indian tribes do not have it. However, there is an exception for non-Indians who commit domestic

and dating violence against tribal members or Indians residing within the tribes’ jurisdiction,

provided the defendants have certain ties to the tribes and the tribes provide defendant with rights

that are not required in other tribal court criminal proceedings.

Tribal criminal jurisdiction over nonmember Indians is more difficult to discern. Such jurisdiction

depends on whether the nonmember Indian is recognized as an Indian by the federal government

or the tribal community. This determination turns on factors such as enrollment in a tribe; the

degree to which the nonmember Indian has received federal services and benefits for Indians;

benefited from tribal rights or services; and participated in tribal ceremonies and social life.

Over Non-Indians

In Oliphant v. Suquamish Indian Tribe, the Court held that tribes lack inherent sovereign authority

over non-Indian offenders.13 The Court first analyzed the history of criminal jurisdiction over

non-Indians within Indian country through treaty provisions, executive branch activities and

opinions, and lower court opinions, and concluded that historically the legislative and executive

branches and lower courts presumed that Indian tribes did not have authority over non-Indians

who committed offenses within Indian country.14 Although the Court wrote that this history was

not “conclusive,” it determined that it “carries considerable weight.”15 Accordingly, the Court

read the Suquamish Tribe’s (Tribe’s) treaty with the United States in light of the historical

presumption against tribal jurisdiction over non-Indian offenders.16 The Court acknowledged that

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

Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001).

Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987); National Farmers Union Insurance Cos. v. Crow Tribe of

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

435 U.S. 191 (1978).

Id. at 196-206.

Id. at 206.

Id. at 207.

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on its own, the treaty probably would not divest the Tribe of criminal jurisdiction over non-Indian

offenders if it otherwise retained that authority.17 However, the Court determined that Tribe did

not retain the authority to try non-Indian offenders.

The Court cited two reasons to support its determination that Indian tribes did not possess the

inherent authority to try non-Indian offenders. First, the Court wrote, “Indian tribes are prohibited

from exercising those powers of autonomous states that are expressly terminated by Congress and

those powers inconsistent with their status.”18 The Court identified some of the restrictions

imposed on the tribes’ sovereignty by virtue of their incorporation into the United States as loss of

“the tribes’ power to transfer lands [and] exercise external political sovereignty.”19 In addition,

quoting Justice Johnson’s opinion from the first Indian case to reach the Supreme Court, the

Court wrote, “‘[T]he restrictions upon the soil in the Indians, amount … to an exclusion of all

competitors [to the United States] from their markets; and the limitation upon their sovereignty

amounts to the right of governing every person within their limits except themselves.’”20 Noting

that protection of its territory within its boundaries is “central” to the sovereign interests of the

United States, the Court wrote that “the United States has manifested an equally great solicitude

that its citizens be protected by the United States from unwarranted intrusions on their personal

liberty.”21 The power to try and punish individuals “is an important manifestation of the power to

restrict personal liberty.”22 The Court concluded, “By submitting to the overriding sovereignty of

the United States, Indian tribes therefore necessarily give up their power to try non-Indian

citizens of the United States except in a manner acceptable to Congress.”23

The second reason the Court gave for determining that Indian tribes did not retain inherent

authority to try non-Indian offenders was related to the Court’s precedent. In Ex Parte Crow

Dog,24 the Supreme Court held that federal courts lacked jurisdiction to try an Indian who had

committed an offense against another Indian on reservation land. In that case, the Court looked to

the “nature and circumstances of the case” and concluded that the United States was seeking to

extend

law, by argument and inference only, … over aliens and strangers; over the members of a

community separated by race [and] tradition, … from the authority and power which seeks to

impose upon them the restraints of an external and unknown code …; which judges them by

a standard made by others and not for them…. It tries them, not by their peers, nor by the

customs of their people, nor the law of their land, by … a different race, according to the law

of a social state of which they have an imperfect conception….25

The Court wrote that the same considerations applied to subjecting non-Indian offenders to the

laws of Indian tribes and contradicted the notion that, although the tribes are “fully subordinated

Id.

Id. at 208 (internal quotation marks and citation omitted; emphasis in original).

Id. at 209.

Id. quoting Fletcher v. Peck, 6 Cranch. 87, 147 (1810) (alterations and emphasis in original).

Id. at 210.

Id.

109 U.S. 556 (1883).

Oliphant, 435 U.S. at 210-211, quoting Ex Parte Crow Dog, 109 U.S. at 572 (alterations in original).

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to the sovereignty of the United States, [they] retain the power to try non-Indians according to

their own customs and procedures.”26

Although the Court recognized that some Indian judicial systems had become “increasingly

sophisticated” and in many respects resemble state court systems; that the Indian Civil Rights Act

had extended certain basic procedural rights to anyone tried in tribal court so that many of the

dangers for non-Indians that existed a few decades ago have disappeared; and that there is a

prevalence of non-Indian crime on Indian reservations, the Court wrote that those factors should

be addressed to Congress for it to “weigh in deciding whether Indian tribes should finally be

authorized to try non-Indians.”27

In 2013, Congress authorized Indian tribes to exercise criminal jurisdiction over non-Indians who

commit domestic or dating violence crimes against Indians within the tribes’ jurisdictions in

certain circumstances. Congress amended the Indian Civil Rights Act (ICRA) by adding Section

1304, which declares that a tribe’s “powers of self-government … include the inherent power of

that tribe, which is hereby recognized and affirmed, to exercise special domestic violence

criminal jurisdiction over all persons.”28 Section 1304 simply defines special domestic violence

criminal jurisdiction to mean “the criminal jurisdiction that a participating tribe may exercise

under this section but could not otherwise exercise.”29

Section 1304 gives all tribes the option of prosecuting non-Indians for domestic and dating

violence crimes under special domestic violence criminal jurisdiction. A tribe may not exercise

special domestic violence criminal jurisdiction over a defendant if both the victim and the

perpetrator are non-Indians. Furthermore, it is the tribes’ burden to establish as an element of the

offense that the defendant has at least one of the following ties to the tribe: resides in the Indian

country of the tribe; is employed in the Indian country of the tribe; or is a spouse or intimate or

dating partner of a member of the tribe or an Indian who resides in the Indian country of the

tribe.30 In addition, in order to exercise special domestic violence criminal jurisdiction a tribe

must provide defendants: all the rights required by the Indian Civil Rights Act; an attorney for

indigent defendants facing any term of imprisonment; the right to a jury drawn from a sources

representing a fair cross section of the community and that does not “systemically exclude any

distinctive group in the community, including non-Indians”; and “all other rights whose

protection is necessary under the Constitution of the United States in order for Congress to

recognize and affirm the inherent power of the participating tribe to exercise special domestic

violence criminal jurisdiction over the defendant.”31

Over Nonmember Indians

In Duro v. Reina, the Supreme Court applied Oliphant to hold that a tribe does not possess

authority to exercise criminal jurisdiction over Indian offenders who are not members of the

Oliphant, 435 U.S. at 211.

Id. at 212.

25 U.S.C. §1304(b).

25 U.S.C. §1304(a)(6).

25 U.S.C. §1304(b)(4).

25 U.S.C. §1304(d).

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tribe.32 In response, Congress amended ICRA so that the terms “powers of self-government”

include “the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal

jurisdiction over all Indians,”33 and “Indian” “means any person who would be subject to the

jurisdiction of the United States as an Indian under section 1153 of Title 18 if that person were to

commit an offense listed in that section in Indian country to which that section applies.”34 Thus

Congress re-vested the tribes with the inherent authority to try nonmember Indians.35

The authority to try nonmember Indians, however, does not extend to all persons who are racially

Indians. “The term ‘Indian’ is not statutorily defined, but courts have judicially explicated its

meaning. The generally accepted test for Indian status considers ‘(1) the degree of Indian blood;

and (2) tribal or government recognition as an Indian.’”36 For the first requirement, there is no set

degree of Indian blood that is required.37 However, the Indian blood must trace back to a federally

recognized tribe.38 The second requirement “requires membership or affiliation with a federally

recognized tribe.”39 “When analyzing this prong, courts have considered, in declining order of

importance, evidence of the following: (1) tribal enrollment; (2) government recognition formally

and informally through receipt of assistance reserved only to Indians; (3) enjoyment of the

benefits of tribal affiliation; and (4) social recognition through residence on a reservation and

participation in Indian social life.”40 Therefore, a person with Indian blood who is not a member

of the tribe may be subject to prosecution by the tribe if he or she is enrolled in another Indian

tribe; received federal benefits or services for Indians; partook of any of the privileges of tribal

affiliation, such as participating in tribal hunting or fishing rights or being arrested by tribal police

and tried in tribal courts; resided on the Indian reservation; or participated in tribal ceremonies

and social events.41 It appears that courts look to the cumulative effect of these considerations,

with no single factor being determinative.

Civil Jurisdiction

The general rule that tribes lack civil jurisdiction over nonmembers is deceptively simple. Tribal

civil jurisdiction over nonmembers is complicated for several reasons.

First, the two Montana exceptions to the general rule for consensual relationships and threats to

the tribe do not provide bright line rules. Courts must decide cases involving tribal civil

jurisdiction over nonmembers based on the unique facts of each case.

495 U.S. 676.

25 U.S.C. §1301(2).

25 U.S.C. §1301(3).

United States v. Lara, 541 U.S. 193 (2004). In Lara, the Court held that Congress had authority to “relax” restrictions

imposed on the tribes’ inherent authority.

United States v. Maggi, 598 F.3d 1073, 1078 (9th Cir. 2010), quoting United States v. Bruce, 394 F.3d 1215 (9th Cir.

2005) (internal quotation marks and citations omitted).

Maggi, 598 F.3d at 1080.

Id.

Id. at 1081 (internal quotation marks and citations omitted; alteration omitted).

Id., quoting Bruce, 394 F.3d at 1224 (internal quotation marks and citations omitted).

See Bruce, 394 F.3d at 1226 and Maggi, 598 F.3d at 1082-1083.

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Second, there are two types of civil jurisdiction: legislative42 and adjudicatory.43 The Court has

held that tribal adjudicatory jurisdiction is no broader than tribal legislative jurisdiction.44 It has

not determined whether tribal adjudicatory jurisdiction is as broad as tribal legislative

jurisdiction. To answer the question whether a tribal court may adjudicate a case involving

nonmember conduct, therefore, the Court inquires whether the tribe would be able to regulate that

conduct.45 Again, there are no bright line rules. However, the Supreme Court may soon provide

some clarity. The Court decided to hear a case in October 2015 that may clarify the extent of

tribal adjudicatory jurisdiction.46

Third, the court has refused to draw a bright line based on the ownership of the land on which the

nonmember conduct takes place. In Nevada v. Hicks, the Court held that the Montana rule applied

to Indian and non-Indian land.47 The status of the land is one factor—perhaps in some cases even

a determinative factor—to consider in determining whether a tribe has jurisdiction over nonIndian conduct.48

Finally, it is unclear whether tribes generally have civil jurisdiction over Indians who are not

members of the tribe. Although Congress re-vested tribes with jurisdiction to try nonmember

Indians for criminal conduct, it did not take any action regarding civil jurisdiction over

nonmember Indians. The leading commentator on Indian law, however, believes that because

Oliphant’s analysis focused on the understanding of Congress and the executive branch, in

addition to that of the courts, Congress’s decision to re-vest tribes with criminal jurisdiction over

nonmember Indians alters the Court’s analysis of Congress’s understanding of tribal jurisdiction

over nonmember Indians such that the Court might find that tribes have civil jurisdiction over

nonmember Indians even though Congress has not provided for it.49

The Montana Exceptions

Most of the litigation concerning the Montana exceptions has concerned the exception for

nonmembers who enter consensual relationships with tribes or tribal members. The Supreme

Court has significantly limited the exception for threats to the tribe.

Legislative jurisdiction is the authority to regulate.

Adjudicatory jurisdiction is the authority to hear and decide cases.

Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997).

See Plains Commerce Bank v. Long Family Land and Cattle Co., 554 U.S. 316 (2008), and Hicks, 533 U.S. 353

(2001).

Dollar General Corp. v. The Mississippi Band of Choctaw Indians, 2015 U.S. LEXIS 4003 (June 15, 2015). In this

case, the U.S. Court of Appeals for the Fifth Circuit held that the tribal court had jurisdiction, under the first Montana

exception, to adjudicate a member’s tort claim against a corporation whose reservation store was licensed by the tribe

and located on trust land leased from the Tribe. The store participated in a tribal youth internship program and a store

employee molested the youth placed at the store. The youth sued the corporation in tribal court and recovered

compensatory and punitive damages. The corporation sued the Tribe in federal court challenging the jurisdiction of the

tribal court. Dolgencorp, Inc. v The Mississippi Band of Choctaw Indians, 746 F.3d 167 (5th Cir. 2014). The Court

granted certiorari to decide: “Whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against

nonmembers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships

with a tribe or its members?”

Hicks, 533 U.S. at 360.

Id.

Cohen’s Handbook of Federal Indian Law (2005) (Cohen) §4.03[3] at 248.

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Consensual Relationships

Tribes may exercise jurisdiction over non-Indians when the non-Indians enter consensual

relationships, such as “commercial dealing[s], contracts, leases, or other arrangements,” with the

tribe or tribal members.50 The Court has interpreted this exception narrowly. Federal courts have

rarely found tribal jurisdiction based on a nonmember’s consensual relationship. In First

Specialty Insurance v. Confederated Tribes of the Grand Ronde Community of Oregon, the

district court upheld the tribal court’s jurisdiction over a claim based on a contract between the

Tribes and the insured nonmember investment company.51 In this case, the Tribes’ causes of

action were based directly on a formal agreement between the Tribes and the nonmember. The

Supreme Court has stated, however, that the consensual relationship need not be formal.52

The Consensual Relationship Must Be Related to the Non-Indian Conduct

at Issue

In Atkinson Trading Co. v. Shirley, in considering a tribal tax, the Court wrote, “Montana’s

consensual relationship exception requires that the tax or regulation imposed by the Indian tribe

have a nexus to the consensual relationship itself.”53 “A nonmember’s consensual relationship in

one area thus does not trigger tribal civil authority in another—it is not in for a penny, in for a

pound.”54 Similarly, a court’s adjudicative jurisdiction must have some nexus to the consensual

relationship.

In Strate v. A-1 Contractors,55 the defendant in tribal court had a contract with the Three

Affiliated Tribes of the Ft. Berthold Indian Reservation to perform landscaping. The contractor

found itself a defendant in tribal court in conjunction with a traffic accident that occurred on a

state highway within the reservation. The Court held that the tribal court did not have jurisdiction

over a claim arising out of the accident. Thus, it is not enough that the nonmember have a

consensual relationship with a tribe or a tribal member. The conduct over which the tribe is

exercising jurisdiction must be related to that consensual relationship. As the Court put it, even

though the contractor had a consensual relationship with the Tribes, they “were strangers to the

accident.”56

The Consensual Relationship May Consist of Invoking Tribal Court Jurisdiction

A nonmember party who brings suit against a tribal member or the tribe in tribal court has entered

into a consensual relationship with the tribe for the purposes of adjudicating claims in which the

nonmember is a plaintiff or a defendant in a subsequent related action.

450 U.S. at 565.

2007 U.S. Dist. LEXIS 82591 (D.Ore. November 2, 2007).

Plains Commerce Bank, 554 U.S. at 337 (nonmember‘s consent may be demonstrated “either expressly or by his

actions.”).

532 U.S. 645, 656 (2001).

Id. (internal quotations omitted).

520 U.S. 438 (1997).

Id. at 457.

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In Smith v. Salish Kootenai College, the U.S. Court of Appeals for the Ninth Circuit (Ninth

Circuit) upheld the tribal court’s jurisdiction to adjudicate a nonmember’s claim against a tribal

college.57 Smith, the nonmember, was driving a tribal college truck with two tribal members in it

when the truck overturned, killing one member and seriously injuring Smith and the other tribal

member. The estate of the member who died filed suit against Smith and the tribal college in

tribal court. The tribal college filed a cross-claim against Smith. The injured tribal member then

filed suit in tribal court against Smith and the tribal college. Smith filed a cross-claim against the

tribal college. All the claims except Smith’s claim against the tribal college settled. Rather than

filing his claim against the tribal college in state court, Smith went to trial in tribal court and lost.

He then asserted that the tribal court lacked jurisdiction over his claim. The Ninth Circuit held

that even though Smith was originally a defendant, by filing a cross-claim against the tribal

college he “knowingly enter[ed] tribal court for the purposes of filing suit against the tribal

college [and], by the act of filing his claims, entered into a ‘consensual relationship’ with the tribe

within the meaning of Montana.”58

In Ford Motor Credit Co. v. Poitra,59 the court extended the holding in Salish Kootenai College to

uphold tribal court jurisdiction over a member’s claim against a nonmember because the

nonmember, in a related but separate claim, had invoked the tribal court’s jurisdiction as a

plaintiff. Ford Credit, as plaintiff, obtained a default judgment in tribal court against the tribal

member for failing to make payments on a vehicle that Ford Credit financed. Three years later, in

a separate lawsuit, the tribal member sued Ford Credit in tribal court seeking damages as a result

of Ford Credit’s failure to execute the default judgment. Ford Credit lost in tribal court and sought

an injunction against enforcement of the tribal court judgment in federal district court, claiming

that the tribal court lacked jurisdiction over it. The district court, citing Salish Kootenai College,

upheld the tribal court’s jurisdiction. Quoting the tribal court of appeals, the court wrote, “A nonIndian cannot utilize a tribal forum to gain relief against a tribal member and then attempt to

avoid that jurisdiction when it acts negligently in that same action resulting in potential harm to

the tribal member.”60

Threat to the Tribe’s Integrity

The second Montana exception provides that tribes may exercise jurisdiction over nonmembers

when the nonmember’s conduct “threatens or has some direct effect on the political integrity, the

economic security, or the health or welfare of the tribe.”61 Subsequent cases have limited this

exception significantly.

In Atkinson Trading Co. v. Shirley, the Court struck down a tribal tax on guests of a nonmember’s

hotel located on non-Indian fee land within the reservation.62 The Navajo Nation (Nation) argued

that the trading post of which the hotel was a part had “direct effects” on its welfare: the Nation

provided services to the trading post; the owner of the trading post was an “Indian trader”; the

trading post employed almost 100 tribal members; the trading post derived business from the

434 F.3d 1127 (9th Cir. 2006).

434 F.3d at 1140.

2011 U.S. Dist. LEXIS 20835 (D.N.D. March 2, 2011).

Id. at 4.

Montana, 450 U.S. at 565.

532 U.S. 645 (2001).

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tourists visiting the reservation; and the trading post was surrounded entirely by tribal land. The

Court rejected the Nation’s argument.

The [second] exception is only triggered by nonmember conduct that threatens the Indian

tribe, it does not broadly permit the exercise of civil authority wherever it might be

considered “necessary” to self-government. Thus, unless the drain of the nonmember’s

conduct upon tribal services and resources is so severe that it actually “imperils” the political

integrity of the Indian tribe, there can be no assertion of civil authority beyond tribal lands.63

In Plains Commerce Bank v. Long Family Land and Cattle Co., the Court reiterated the limited

nature of this exception: “[t]he conduct must do more than injure the tribe, it must imperil the

subsistence of the tribal community. One commentator has noted that ‘the elevated threshold for

application of the second Montana exception suggests that tribal power must be necessary to

avert catastrophic consequences.’”64

There is one recent court of appeals case that upheld a tribal court’s jurisdiction over a

nonmember based on this second exception. In Attorney’s Process and Investigation Services v.

Sac & Fox Tribe of the Mississippi in Iowa, the U.S. Court of Appeals for the Eighth Circuit

upheld the tribal court’s jurisdiction over trespass and trade secrets claims against a nonmember

for taking over the Tribe’s facilities and seizing tribal financial documents.65 In this case, there

had been an ongoing tribal leadership dispute: the elected leaders refused to honor the recall

petitions submitted by tribal members, and the opposition leaders took control of the Tribe’s

government building and casino. The opposition leaders held an election in which a majority

voted against the elected leaders. The elected leaders hired the nonmember to remove the

opposition from the Tribe’s facilities. The nonmember raided the facilities with 30 agents armed

with batons. At least one agent had a firearm. Later, the Tribe sued the nonmember in tribal court.

After the tribal court found for the tribe, the nonmember challenged the tribal court’s jurisdiction

in federal court. The court of appeals upheld the tribal court’s jurisdiction, finding that the

nonmember’s raid “threatened the tribal community and its institutions” as well as the “political

integrity and economic security of the Tribe.”66

The dawn attack was directed at the Tribe’s community center—the seat of tribal

government—and the casino, which the tribal appellate court characterized as “the Tribe’s

economic engine.” As it appears from the allegations, the raid sought to return the [elected

leaders] to power despite the majority’s rejection of the leadership in the May election. This

was a direct attack on the heart of tribal sovereignty, the right of Indians to protect tribal selfgovernment.67

The court reinforced its conclusion that the tribal court had jurisdiction over the Tribe’s claims

against the nonmember with the fact that the raid occurred on tribal land: as the landowner, the

Tribe had the power to exclude the nonmember altogether. That power includes the authority to

regulate conduct on the tribal land.68

532 U.S. at 657 n. 12 (emphasis in original).

554 U.S. at 341, quoting Cohen §4.02[3][c], at 232 n. 220.

609 F.3d 927 (8th Cir. 2010).

Id. at 939.

Id. (internal quotations omitted).

Id. at 940.

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Based on the language from Atkinson and Plains Commerce Bank, the second Montana exception

appears to be very limited and will be applied only in cases in which the tribe’s survival is

threatened by nonmember conduct.

The Power to Exclude

In Merrion v. Jicarilla Apache Tribe, decided one year after Montana, the Supreme Court upheld

the Tribe’s authority to impose a severance tax on a nonmember company extracting oil and gas

from tribal property, in addition to the negotiated royalty payments under the lease.69 The Court

found the jurisdiction to tax nonmembers on tribally owned land derived from the Tribe’s power,

as a landowner, to exclude nonmembers and its “general authority, as sovereign, to control

economic activity within its jurisdiction and to defray the cost of providing governmental services

by requiring contributions from persons or enterprises engaged in economic activities within that

jurisdiction.”70

It is not clear, however, if the power to exclude is independent of the Montana exceptions.

Although the Court has written that “[r]egulatory authority goes hand in hand with the power to

exclude,”71 it has also written that “the existence of tribal ownership is not alone enough to

support regulatory jurisdiction over nonmembers.”72 If the power to exclude were independent of

the Montana exceptions, it seems that the existence of tribal ownership alone would suffice to

support regulatory jurisdiction.

Moreover, language in the Atkinson opinion, decided in 2001, raises further questions about

whether the power to exclude is independent of the Montana exceptions. Rejecting the Tribe’s

argument that Merrion’s recognition of inherent authority to tax supported an occupancy tax on

guests staying at a nonmember hotel on non-Indian land, the Court wrote,

Merrion [] was careful to note that an Indian tribe’s inherent power to tax only extended to

“transactions occurring on trust lands and significantly involving a tribe or its members.”

There are undoubtedly parts of the Merrion opinion that suggest a broader scope for tribal

taxing authority than the quoted language above. But Merrion involved a tax that only

applied to activity occurring on the reservation, and its holding is therefore easily

reconcilable with the Montana-Strate line of authority, which we deem to be controlling. An

Indian tribe’s sovereign power to tax—whatever its derivation—reaches no further than

tribal land.73

Thus, because the Court wrote that the Montana-Strate line of precedent controlled, it is not clear

whether the power to exclude provides authority over nonmembers on tribal land independent of

the Montana exceptions. Despite this uncertainty, in Water Wheel Camp Recreational Area, Inc. v.

LaRance,74 the U.S. Court of Appeals for the Ninth Circuit found that the tribal court had

jurisdiction over a non-Indian who had leased land from the Colorado River Indian Tribes but

455 U.S. 130 (1982).

Id. at 137.

South Dakota v. Bourland, 508 U.S. 679, 691 n. 11 (1993).

Hicks, 533 U.S. at 360.

532 U.S. at 653 (emphasis in original; internal citations and parenthetical omitted).

642 F.3d 802 (9th Cir. 2011).

Congressional Research Service

Tribal Jurisdiction over Nonmembers: A Legal Overview

stayed after the lease had expired based on the Tribes’ power to exclude, independent of the

Tribes’ inherent authority under the Montana exceptions.

Statutory Exceptions

In addition to exercising authority over nonmembers pursuant to their inherent sovereign

authority, Indian tribes may exercise jurisdiction over nonmembers within reservations when

Congress authorizes them to do so.75 Congress may relax restrictions on tribes’ inherent sovereign

authority, as it did with tribal criminal jurisdiction over nonmember Indians and non-Indian

dating and domestic violence defendants, or delegate federal authority to tribes. Congress may

delegate federal authority to tribes through laws authorizing federal enforcement of tribal legal

standards or laws authorizing tribal enforcement of federal statutes.76

There are two “prominent” examples of Congress providing for federal enforcement of tribal

standards.77 First, Section 1161 provides that the federal criminal statutes prohibiting the

introduction of alcohol in Indian country “shall not apply ... to any act or transaction within any

area of Indian country provided such act or transaction is in conformity both with the laws of the

State in which such act or transaction occurs and with an ordinance duly adopted by the

[governing] tribe.”78 In United States v. Mazurie, the Supreme Court upheld Section 1161 as a

delegation to Indian tribes of Congress’s authority to regulate the sale of alcohol by non-Indians

within Indian reservations.79 In City of Timber Lake v. Cheyenne River Sioux Tribe, the Eighth

Circuit upheld the authority of the Tribe to require nonmembers to obtain tribal liquor and

business licenses and to enforce those requirements in tribal court.80 Second, Section 1165

establishes criminal penalties for anyone who, “without lawful authority or permission, willfully

and knowingly goes upon” individual Indian or tribal trust land or any lands reserved for Indian

use “for the purpose of hunting, trapping, or fishing thereon.”81 Section 1165, therefore, imposes

federal criminal penalties for knowing violations of tribal hunting and fishing licensing

requirements.

The Clean Air Act provides an example of Congress delegating federal authority to tribes to

regulate nonmember conduct on non-Indian fee land by enforcing their own standards. Under

Section 7601(d)(1)(A), Indian tribes may petition the Environmental Protection Agency (EPA) for

authority to regulate reservation air quality in accordance with minimum federal standards.82 If

EPA grants a petition, the tribe establishes standards, issues permits, and enforces the standards

for all land, including non-Indian fee land, within the reservation.

Atkinson, 532 U.S. at 649-650.

Cohen §4.03[1] at 238.

Id. at 238-239.

18 U.S.C. §1161.

419 U.S. 544 (1975).

10 F.3d 554 (8th Cir. 1993), cert. denied, 512 U.S. 1236 (1994).

18 U.S.C. §1165.

42 U.S.C. §7601(d)(1)(A); discussed in Cohen, §4.03[1] at 239-240. The Clean Water Act provides a similar process

for tribes to assume authority to enforce their own clean water standards.

Congressional Research Service

Tribal Jurisdiction over Nonmembers: A Legal Overview

Nonmembers Must First Challenge Tribal Court Jurisdiction

in Tribal Court

Although tribal civil jurisdiction over nonmembers is quite limited, a nonmember defendant in

tribal court who believes the court lacks jurisdiction must first challenge the tribal court’s

jurisdiction in tribal court.83 Federal courts will dismiss an action challenging the jurisdiction of a

tribal court if the tribal court defendant has not challenged tribal court jurisdiction through the

tribal court appellate process subject to four exceptions:

(1) when an assertion of tribal court jurisdiction is “motivated by a desire to harass or is

conducted in bad faith”; (2) when the tribal court action is “patently violative of express

jurisdictional prohibitions”; (3) when “exhaustion would be futile because of the lack of an

adequate opportunity to challenge the tribal court’s jurisdiction”; and (4) when it is “plain”

that tribal court jurisdiction is lacking, so that the exhaustion requirement “would serve no

purpose other than delay.”84

Once a defendant has appealed his or her challenge of tribal court jurisdiction to the highest tribal

court, he or she may then challenge the tribal court’s jurisdiction in federal court.

Conclusion

As a general rule, Indian tribes lack criminal and civil jurisdiction over nonmembers. However,

there are exceptions. First, Congress re-vested Indian tribes with inherent authority to exercise

criminal jurisdiction over nonmember Indians, as well as non-Indians who commit dating and

domestic violence against Indians within the tribes’ jurisdictions, provided the non-Indian has

certain enumerated ties to the tribes. Second, under the first Montana exception, tribes may

exercise civil jurisdiction over nonmembers when the nonmembers have entered private

consensual relationships with the tribe or its members, provided the conduct at issue relates to the

consensual relationship. Third, under the second Montana exception, Indian tribes may exercise

civil jurisdiction over nonmembers when the nonmembers’ conduct threatens the integrity of the

tribe. Fourth, tribes may exercise jurisdiction over nonmembers when Congress authorizes them

to do so. Although the Supreme Court has recognized the tribal right to exclude nonmembers

from tribal land as a basis for regulatory authority, it is not clear whether the right to exclude is

independent of the Montana exceptions. While the Supreme Court has drawn tribal jurisdiction

over nonmembers narrowly, it has also held that defendants in tribal court who challenge the

tribal court’s jurisdiction must exhaust their tribal court remedies before seeking relief in federal

court.

Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987) (federal question jurisdiction); National Farmers Union

Insurance Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985) (diversity jurisdiction).

Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842, 847 (9th Cir. 2009), cert. denied, 130 S. Ct. 624 (2009),

quoting Hicks, 533 U.S. at 369.

Congressional Research Service

Tribal Jurisdiction over Nonmembers: A Legal Overview

Author Contact Information

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Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Congressional Research Service

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