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14 NCHRP LRD 76 States,164 the court found the Cree decision not binding in a lawsuit dealing with federal heavy vehicle and diesel fuel taxes, because the âfederal standard requires a definite expression of exemption stated plainly in a statute or treaty before any further inquiry is made or any canon of interpretation employed.â165 C. JURISDICTION IN INDIAN COUNTRY The following sections provide a basic outline for under- standing jurisdiction in Indian country. It is not always easy to determine which government entities have the authority to make and enforce law on a reservation or in other types of In- dian country. Before delving into the court cases that establish the framework for jurisdiction in Indian country, it is important to understand three things: tribes retain inherent tribal sover- eignty; being Indian and/or a member of a tribe is a legal status that changes how laws apply to an individual; and the types of land make up âIndian country.â Indian country is the area where questions arise about which government entities (e.g., tribes, states, federal government) get to make and enforce law. With this background in mind, the next sections will explore federal civil jurisdiction in Indian country, state civil jurisdiction in Indian country, tribal civil jurisdiction in Indian country, and criminal jurisdiction in Indian country. 1. Concepts Necessary to Understand Jurisdiction in Indian Country a. Inherent Tribal Sovereignty Beginning with the opinions of Chief Justice Marshall in Cherokee Nation v. Georgia166 and Worcester v. Georgia,167 the U.S. Supreme Court held that Indian tribes retain inherent sovereign authority over their reservation lands and activi- ties, except to the extent withdrawn by treaty, federal stat- ute, or by implication as a necessary result of their status as âdependent domestic nations.â Since these decisions, the Su- preme Court âhas consistently recognized that Indian tribes retain âattributes of sovereignty over both their members and their territory,ââ¦and that âtribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States.ââ 168 The nine most important areas of tribal self-gov- ernment are: 1. Forming a government; 2. Determining tribal membership; 164 302 F.3d 1074 (9th Cir. 2002). 165 Id. at 1076. 166 30 U.S. (5 Pet.) 1, 8 L. Ed. 25 (1831). 167 31 U.S. 515, 8 L. Ed. 483 (1832). 168 Indian Country, U.S.A. v. Okla. Tax Commân, 829 F.2d 967, 976 (10th Cir. 1987), citing California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) (quoting United States v. Mazurie, 419 U.S. 544, 557 and Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 154 (1980)); New Mex- ico v. Mescalero Apache Tribe, 462 U.S. 324, 331â33, 103 S. Ct. 2378, 76 L. Ed. 2d 611 (1983). Especially is this true in interpreting treaties and agreements with the Indians; they are to be construed, so far as possible, in the sense in which the Indians understood them, and âin a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent peopleâ (citations omitted).155 The same general rule of liberal construction has been ap- plied by the Supreme Court to âstatutes passed for the ben- efit of the dependent Indian tribes or communities,â156 and even to tax exemptions.157 The U.S. Court of Appeals for the Ninth Circuit observed that â[C]ourts have uniformly held that treaties, statutes and executive orders must be liber- ally construed in favor of establishing Indian rightsâ¦. Any ambiguities in construction must be resolved in favor of the Indians.â158 Canby notes that âthe usual rule is that the canon of sympathetic construction has more strength than the or- dinary canons of statutory interpretation.â159 But he cautions that â[t]he Supreme Court has recently expressed doubt that the canon of sympathetic construction carries as much force when a court is interpreting a statute rather than a treaty,â noting that the Court, in denying a federal tax exemption to tribal gaming, ârelied on the canon of construction that federal tax provisions should not be interpreted to create ex- emptions that are not clearly expressed.â160 Canby goes on to use two cases to demonstrate how âthe presumption against unexpressed exemptionâ161 from federal taxation can trump a treaty provision, previously held to defeat state taxes against Indians. The holdings, both by the U.S. Ninth Circuit Court of Appeals, involved the 1855 Treaty with the Yakama Indian Nation, which assured the Yakamas âthe right, in common with citizens of the United States, to travel upon all public highways.â162 In the first case, Cree v. Flores,163 the court interpreted this treaty provision, using the canons of interpreta- tion for treaties, to exempt the Yakamas from Washington truck license and overweight permit fees. But in Ramsey v. United 155 Choctaw Nation of Indians, 318 U.S. at 433, 63 S. Ct. at 678. 87 L. Ed. at 877. Chief Justice Marshall established the principle in Worcester v. Georgia, 31 U.S. at 582, 8 L. Ed. at 505, âThe language used in treaties with the Indians should never be construed to their prejudice. If words be made use of, which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the lat- ter sense.â 156 Alaska Pacific Fisheries Co. v. United States, 248 U.S. 78, 89, 39 S. Ct. 40, 42, 63 L. Ed. 138, 141 (1918). 157 Carpenter v. Shaw, 280 U.S. 363, 366, 50 S. Ct. 121, 122, 74 L. Ed. 478, 481 (1930). 158 Confederated Tribes of Chehalis Indian Reservation v. State of Washington, 96 F.3d 334, 340 (1996) (citations omitted). 159 Canby, supra note 5, at 129-130, citing Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766, 105 S. Ct. 2399, 2403, 85 L. Ed. 2d 753, 759 (1985), stating âThe standard principles of statutory construction do not have their usual force is cases involving Indian law.â 160 Id. at 128, citing Chickasaw Nation v. United States, 534 U.S. 84 (2001). 161 Id. at 129. 162 Id. quoting Cree v. Flores, 157 F. 3d 762, 674 (9th Circuit 1998). 163 157 F.3d 762 (9th Cir. 1998).
NCHRP LRD 76 15 law.176 Most commonly, the law defines âIndianâ as a member of an Indian tribe.177 Under 25 USC Â§ 4103 (13) (a) the term Indian tribe means a tribe that is a federally recognized or state recognized tribe. The next sections will discuss in more detail how this impacts jurisdiction. c. What is Indian Country? Although the term âIndian reservationâ 178 has been his- torically used, is more commonly known, and appears in scores of provisions of the U.S. Code, the controlling term of art for jurisdictional purposes is actually âIndian country.â This is the area where practitioners should have questions about which government entities may make and enforce law.179 The term Indian country has its origins in the first Indian treaty after the Continental Congress declared its jurisdiction over Indian tribes on July 12, 1775.180 The treaty guaranteed the Delaware Indians âall their territorial rights in the fullest and most ample mannerâ¦â181 and in describing the territory con- trolled by Indians, used the term âIndian country.â182 There- after, the term was used in various criminal statutes relating to Indians, but usually was not defined.183 The U.S. Supreme 176 See for example, United States v. Rogers, 45 U.S. 567, 11 L. Ed. 1105 (1846); United States v. Cruz, 554 F.3d 840 (9th Cir. 2009). 177 25 U.S.C. Â§ 2201 (2) (A). 178 See Frank Pommersheim, The Reservation as Place: A South Dakota Essay, 36 S.D. L. Rev. 246 (1989); Cohen, supra note 5, at 183-202; Deskbook, supra note 15, at 116-17; Pevar, supra note 5, at 21-24. 179 Indian Country, U.S.A. v. Okla. Tax Commân, 829 F.2d 967, 973 (10th Cir. 1987) citing Solem v. Bartlett, 465 U.S. 463, 465 n.2, 124 S. Ct. 1161, 79 L. Ed. 2d 443 (1984); DeCoteau v. Dist. County Court, 420 U.S. 425, 427â28 & n.2, 95 S. Ct. 1082, 43 L. Ed. 2d 300 (1975); Kennerly v. Dist. Court, 400 U.S. 423, 91 S. Ct. 480, 27 L. Ed. 2d 507 (1971); Cheyenne-Arapaho Tribes of Okla. v. Oklahoma, 618 F.2d 665 (10th Cir. 1980); Cohen, supra note 5, at 183-202m (âIndian countryâ is usually the governing legal term for jurisdictional purposes). 180 2 J. Continental Cong. 175 (1775). See also, U.S. Const. art. 1, Â§ 8, cl. 3, giving Congress âpower to regulate commerce with the Indian tribes.â 181 âTreaty with the Delawares,â Sept. 17, 1778, 7 Stat. 13. 182 âThe Trade and Intercourse Act of 1790,â 1 Cong. ch. 33, 1 Stat. 137. 183 See United States v. John, 437 U.S. 634, 649 n.18, 98 S. Ct. 2541, 2549, 57 L. Ed. 2d 489, 501 (1978), where the Court notes: Throughout most of the 19th century, apparently the only statutory definition [of âIndian Countryâ] was that in Â§ 1 of the Act of June 30, 1834, 4 Stat. 729â¦. This Court was left with little choice but to continue to apply the principles established under earlier statutory language and to develop them according to changing conditions. See e.g., Donnelly v. United States, 228 US 243, 35 S. Ct. 449, 57 L. Ed. 820 (1913). 3. Regulating tribal property; 4. Regulating individual property; 5. The right to tax; 6. The right to maintain law and order; 7. The right to exclude nonmembers from tribal territory; 8. The right to regulate domestic relations; 9. The right to regulate commerce and trade.169 In its early decisions, the Court viewed the Indian nations as having distinct boundaries within which their jurisdictional authority was exclusiveâa âterritorial test.â However, the Court has now rejected the broad assertion that the federal govern- ment has exclusive jurisdiction in Indian country for all purpos- es, and in Mescalero Apache Tribe v. Jones170 cautioned as follows: Generalizations on this subject have become particularly treacher- ous. The conceptual clarity of Mr. Chief Justice Marshallâs view in Worcester v. Georgia has given way to more individualized treatment of particular treaties and specific federal statutes, including statehood enabling legislation, as they, taken together affect the respective rights of State, Indians, and the Federal Government (citations omitted).171 While it is true that tribes retain inherent sovereignty, juris- diction within reservation boundaries, and in Indian country generally, became much more complex in the years following the Marshall Trilogy. b. Indians and Tribal Membership For legal purposes, the term âIndian,â is defined in a variety of ways in statutes and case law. For example, the definition in the IRA is this: The term âIndianâ as used in this Act shall include all persons of In- dian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the pres- ent boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. For the purposes of this Act, Eskimos and other aboriginal peoples of Alaska shall be considered Indians.172 The definition in the Indian Child Welfare Act173 is, âany person who is a member of an Indian tribe, or who is an Alaska Native and a member of a Regional Corporationâ¦.â174 Likewise, the ISDEAA defines âIndianâ as âa person who is a member of an Indian tribe.â 175 There are also common law, multi-factored tests used to determine whether an individual is an Indian for legal purposes, particularly in the context of federal criminal 169 Pevar, supra note 5, at 88-111. 170 411 U.S. 145, 93 S. Ct. 1267, 36 L. Ed. 2d 114 (1973). 171 Id. at 148, 93 S. Ct. at 1270, 36 L. Ed. 2d at 119. 172 See 25 U.S.C. Â§ 5129. 173 Pub. L. No. 95-608, 92 Stat. 3069 (1987) (codified at 25 U.S.C. Â§Â§Â 1901-1963). 174 25 U.S.C. Â§ 1903 (3). 175 25 U.S.C. Â§ 5404(d).
16 NCHRP LRD 76 carries out its trust responsibilities through the BIA, which is part of the Department of the Interior. While most trust land is inside reservation boundaries, it can also be found outside res- ervation boundaries. â¢ Fee land: There are two broad categories of fee land, re- stricted fee land and unrestricted fee land. The tribe or individ- ual Indian holds legal title to restricted fee land, but the federal government places certain restrictions on the land including restrictions against encumbrance (e.g., liens, easements) and alienation (selling or transferring the land). The BIA must give approval for this type of land to be encumbered or alienated. Restricted fee land owned by an individual Indian is called a restricted allotment. Restricted fee land can be found inside and outside reservation boundaries. Unrestricted fee land is fee sim- ple land; this is the most common type of land ownership in the United States. Individual Indians and tribes can own unrestrict- ed fee land. Non-Indians can also own unrestricted fee land, even inside reservation boundaries. Fee simple land owned by an individual Indian might be called fee patent or patent-in-fee. Indian country includes the following categories: â¢ Reservations. The term âreservationâ derives from the practice of tribes âreservingâ land for themselves in treaties with the federal government. Prior to 1850, the definition of the term âIndian reservationâ was a âparcel of land set aside by the fed- eral government for Indian use.â190 The modern meaning, since 1850, has been âland set aside under federal protection for the residence of tribal Indians.â191 Reservations may have been cre- ated by treaty, executive order, or an act of Congress. All land in- side reservation boundaries is Indian country, even land owned in fee simple by a non-Indian. Land inside reservation boundar- ies remains Indian country even where a right-of-way has been granted. Note that sometimes reservation boundaries are clearly defined, but there may be disputes about boundary lines or even the existence of a reservations. This is discussed in more detail in section D. â¢ Dependent Indian Communities. A dependent Indian community is land that is not a reservation or allotment which is federally supervised and set aside for the use of Indians.192 Dependent Indian communities are often found on tribal trust land outside of reservation boundaries. However, there is no re- quirement that dependent Indian communities be located on tribal trust land or even land owned by a tribe.193 Circuit courts have found the following to be dependent Indian communities: a school for Indian children outside a reservation or allotment located on land owned by the United States;194 a tribal housing 190 Sac and Fox Nation of Mo. v. Norton, 240 F.3d 1250, 1266 (10th Cir. 2001). 191 Id. at 1264. 192 Alaska v. Native Village of Venetie, 522 U.S. 520, 118 S. Ct. 948, 140 L. Ed. 2d 30 (1998). 193 United States v. M.C., 311 F. Supp. 2d 1281 (10th Cir. 2004). 194 Id.; Pevar, supra note 5 at 29 & n.30 citing U.S. v. South Dakota, 665 F. 2d 837 (8th Cir. 1981), cert denied. 459 U.S. 823 (1983); U.S. v. Martine, 442 F. 2d. 1022 (10th Cir. 1971). Court eventually developed a common law definition184 which was adopted by Congress in its 1948 revision of the Major Crimes Act.185 This definition was based on several Su- preme Court decisions interpreting the term as it was used in various criminal statutes relating to Indians.186 In revising the Act, Congress deleted the express reference to âreservationâ in favor of the term âIndian country.â The term is defined in 18 U.S.C. Â§ 1151:187 Except as otherwise provided in sections 1154 and 1156188 of this title, the term âIndian country,â as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reserva- tion, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. Even though 18 U.S.C. Â§ 1151 is part of the federal crimi- nal code, the U.S. Supreme Court has stated that the defini- tion is also generally applicable to questions of civil jurisdic- tion.189 Thus, understanding the types of land referred to in the definition of Indian country at 18 U.S.C. Â§ 1151, and understanding common types of land ownership on reservations, are both essential for practitioners. The re- mainder of this section will cover these topics. There are two broad categories of land ownership on reserva- tions: trust land and fee land. â¢ Trust land: In a trust, one party (the trustee) has legal ownership of something of value (like land) for the benefit of another party (the beneficiary). The trustee has legal responsi- bilities to the beneficiary, including acting in the beneficiaryâs best interest. The federal government holds legal title to land for tribes and individual Indians. The beneficial interest in the land (profits and other benefits of land ownership) belong to either the tribe or individual Indian. When the federal government holds title to land for an individual Indian, the land is called allotted trust land. When the land is held in trust for a tribe, the land might be called tribal trust land. The federal government 184 John, 437 U.S. at 647 n.16, 98 S. Ct. at 2548, 57 L. Ed. 2d at 499 and Id. at 649 n.18, 98 S. Ct. at 2549, 57 L. Ed. 2d at 500. For example, see United States v. McGowan, 302 U.S. 535, 58 S. Ct. 286, 82 L. Ed. 410 (1938), involving the Reno Indian Colony, which was situated on 28.38 acres of land owned by the United States and pur- chased to provide lands for Indians scattered throughout the State of Nevada, and established as a permanent settlement. Held: â[I]t is imma- terial whether Congress designates a settlement as a âreservationâ or âcolony,â â¦it is not reasonably possible to draw any distinction between this Indian âcolonyâ and âIndian countryâ [within the meaning of 25 U.S.C. Â§ 247, relating to taking intoxicants into âIndian country.â]â Id. at 538-539, 58 S. Ct. at 288, 82 L. Ed. 413-414. 185 Pub. L. No. 80-772, 62 Stat. 683 Â§1153 (1048). 186 John, 437 U.S. 634, 98 S. Ct. 2541, 57 L. Ed. 2d 489 (1978). 187 Id. at 647 n.16, 98 S. Ct. at 2548, 57 L. Ed. 2d at 499. 188 Defining âIndian countryâ differently for purposes of federal law dealing with possessing and dispensing of intoxicants. 189 DeCoteau v. District County Court, 420 U.S. 425, 427 n.2, 95 S. Ct. 1082, 1084, 43 L. Ed. 2d 300, 304 (1975).
NCHRP LRD 76 17 was no clear and plain congressional intent to apply the law on Indian reservations.201 When discussing what constitutes a spe- cific right reserved to Indians for purposes of this analysis, the court noted as follows: Although the specific Indian right involved usually is based upon a treaty, such rights may also be based upon statutes, executive agree- ments, and federal common law. See Dion, 476 U.S. at 745 n. 8, 106 S. Ct. at 2223 n. 8 (âIndian reservations created by statute, agreement, or executive order normally carry with them the same implicit hunt- ing rights as those created by treaty.â) (citations omitted); Merrion v. Jicarilla Apache Tribe,Â 455 U.S. 130, 141, 102 S. Ct. 894, 903, 71 L. Ed. 2d 21 (1982) (âTribeâs authority to tax non-Indians who conduct busi- ness on the reservation ... is an inherent power necessary to tribal self- government and territorial management.â); Santa Clara Pueblo, 436 U.S. at 55-56, 98 S. Ct. at 1675 (Indian tribes have the right to regulate their internal and social relations, to make their own substantive law in internal matters, and to enforce that law in their own forum) (cita- tions omitted). As this court has previously stated, âareas traditionally left to tribal self-government, those most often the subject of treaties, have enjoyed an exception from the general rule that congressional enactments, in terms applying to all persons, includes Indians and their property interests.â United States v. White, 508 F.2d 453, 455 (8th Cir. 1974) (footnotes omitted).202 In summary, where retained sovereignty is not invalidated and there is no infringement of Indian rights, Indians and their property are normally subject to the same federal laws as others. Most federal laws apply in Indian country. 3. Civil JurisdictionâState Jurisdiction in Indian Country In the early decisions of the U.S. Supreme Court, when the Court viewed the Indian nations as having distinct boundaries within which their jurisdictional authority was exclusive, the test for impermissible state jurisdiction was a âterritorial test,â which simply asked whether the state action had invaded Indian tribal territory. Later cases developed the âinfringement test,â which asked whether the state action had infringed on the rights of reservation Indians to make their own laws and be ruled by them.203 Still later, the trend was âaway from the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward reliance on a federal pre- 201 EEOC v. Fond du Lac Heavy Equipment and Construction Co., Inc., Fond du Lac Band of Lake Superior Chippewa, 986 F.2d 246 (8th Cir. 1993). 202 Id. at 248. 203 Williams v. Lee, 358 U.S. 217, 220, 79 S. Ct. 269, 270, 3 L. Ed. 2d 251, 254 (1959): âEssentially, absent governing acts of Con- gress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.â project;195 and a tribal government building on off-reservation trust land.196 â¢ Allotments. Allotments are land owned by, or held in trust for, an individual Indian. The term derives from the General Al- lotment Act (Dawes Act) which authorized dividing tribal lands into individual tracts (allotments) and assigning those lands to individual Indians with the âsurplusâ land being opened to Eu- ropean settlers. For additional historical background see section B.2.e of this digest entitled âAllotment and Assimilation Policy (1887 to 1934).â Simply knowing whether an area is Indian country does not answer the question of which entities have jurisdiction or which laws apply, but it is a first step in attempting to answer this question. 2. Civil JurisdictionâFederal Jurisdiction in Indian Country Most of the time federal law applies in Indian country, but there are some limited exceptions. Since the U.S. Congress possesses plenary power over Indian affairs, in determining whether a federal law applies in Indian country, the question is not, âCan Congress apply this law in Indian country,â but rather, âHas Congress chosen to apply this law in Indian country?â The question, then, is one of Congressional intent. 197 The basic rule is that laws of general applicability (laws that apply to a broad scope of people) also apply in Indian country.198 Most laws are laws of general applicability. The limited exception to this basic rule is when a federal law limits a specific right reserved to Indians; in these instances, for the law to apply in Indian country there must be clear and plain congressional intent showing that Congress meant to apply the law to Indians. Such laws will be held to apply where In- dians or tribes are expressly covered, and also where it is clear from the statutory terms that coverage was intended.199 The Eighth Circuit Court of Appeals applied this test in a case involving a claim under the federal Age Discrimination in Employment Act of 1967 (ADEA).200 The claim was brought by the Equal Employment Opportunity Commission (EEOC) on behalf of a tribal member against a tribe and a tribally owned construction company. The court found that the ADEA was a law of general applicability, but held that the case before itâre- lating to a tribal member, a tribe, and a tribally owned company working primarily on the reservationâinvolved matters strict- ly internal to the tribe so that ADEA did not apply because it would limit the specific right of tribal self-governance and there 195 Pevar, supra note 5, at 171, but see also, Narragansett Indian Tribe v. Narragansett Electric Company, 89 F.3d 908, 911, 912-22 (1st Cir. 1996). 196 Pevar, supra note 5, at 129 & n.32 citing U.S. v. Roberts, 185 F.3d 1125 (10th Cir. 1999), cert. denied, 529 U.S. 1108 (2000). 197 Cohen, supra note 5, at 113-116. 198 Federal Power Commission v. Tuscarora Indian Nation,Â 362 U.S. 99, 80 S. Ct. 543, 4 L. Ed. 2d 584 (1960).Â 199 Cohen, supra note 5, at 113-116. 200 Pub. L. No. 202, 81 Stat. 602 (codified at 29 U.S.C. Â§Â§621-634).
18 NCHRP LRD 76 areas of Indian country.â207 The civil jurisdiction provided does not extend to the full range of state civil regulatory authority.208 For practitioners in Public Law 280 states,209 before pro- ceeding to the preemption and infringement test described below, it is important to determine whether the state law in question is a civil-regulatory law or a criminal-prohibitory law. The test below applies only to a stateâs civil-regulatory laws whereas Public Law 280 states have broader authority to apply criminal-prohibitory laws. A civil-regulatory law is a law that permits but regulates conduct, whereas a criminal- prohibitory law prohibits conduct. The U.S. Supreme Court clarified this principle in California v. Cabazon Band of Mis- sion Indians,210 a case involving an attempt by the state and county to regulate gambling (bingo and draw poker) on the reservations of the Cabazon and Morongo Bands of Mission Indians. In that case, the Supreme Court stated that: â[W] hen a State seeks to enforce a law within an Indian reserva- tion under the authority of Pub. L. 280, it must be deter- mined whether the law is criminal in nature, and thus fully applicable to the reservation under Â§ 2, or civil in nature, and applicable only as it may be relevant to private civil litigation in state court.â211 The Court went on to describe the distinction between civil- regulatory and criminal-prohibitory laws this way: [I]f the intent of a state law is generally to prohibit certain conduct, it falls within Pub. L. 280âs grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory and Pub. L. 280 does not autho- rize its enforcement on an Indian reservation. The shorthand test is whether the conduct at issue violates the Stateâs public policy.212 The Court concluded: We are persuaded that the prohibitory/regulatory distinction is con- sistent with Bryanâs construction of Pub. L. 280. It is not a bright-line ruleâ¦.213 In light of the fact that California permits a substantial 207 Bryan v. Itasca County, 426 U.S. 373, 383-385, 96 S. Ct. 2102, 2108-2109, 48 L. Ed. 2d 710, 718-719 (1976). 208 Okla. Tax Commân v. Potawatomi Tribe, 498 U.S. 505, 513, 111 S. Ct. 905, 911, 112 L. Ed. 2d 1112, 1123 (1991), citing Bryan v. Itasca County, 426 U.S. 373, 96 S. Ct. 2102, 48 L. Ed. 2d 710 (1976), Rice v. Rehner, 463 U.S. 713, 734, n.18, 103 S. Ct. 3291, 3303, 77 L. Ed. 2d 961, 979 (1983), and California v. Cabazon Band of Mis- sion Indians, 480 U.S. 202, 208â10, and 209 n.8, 107 S. Ct. 1083, 1087-1089, and 1088 n.8, 94 L. Ed. 2d 244, 255-256, and 255 n.8 (1987). 209 When researching the applicability of Public Law 280 in their state, practitioners should note that some states may have a grant of authority over some,but not all, reservations in the state under Public Law 280. They should also be mindful that many states retroceded (gave back) jurisdiction that was once conferred by Public Law 280 over some, or all reservations, and that criminal jurisdiction and jurisdiction over civil actions can be retroceded separately, meaning that a state may have jurisdiction over civil actions arising on a particular reservation under Public Law 280, but may not have the criminal jurisdiction granted under Public Law 280 on that same reservation. 210 480 U.S. 202, 107 S. Ct. 1083, 94 L. Ed. 2d 244 (1987). 211 Id. at 208, 107 S. Ct. at 1088, 94 L. Ed. 2d at 254. 212 Id. at 209, 107 S. Ct. at 1088, 94 L. Ed. 2d at 255. 213 Id. at 210, 107 S. Ct. at 1088-1089, 94 L. Ed. 2d at 255. emption [pre-emption test]â204 which asked whether federal action had preempted any state action. Today, the test for determining whether a state law applies within the boundaries of an Indian reservation can be summa- rized as follows: (1) Where Congress has specifically given states authority to enforce a law, or type of law, within reservations boundaries the state law applies; or (2) a state law applies within reservation boundaries if the state law in question is not feder- ally preempted and does not unlawfully infringe on the right of Indians living on reservations to make their own laws and be ruled by them. The remainder of this section considers both routes to state jurisdiction. â¢ Where Congress has specifically given states authority to enforce a law, or type of law, within reservations boundaries the state law on that topic applies. There are limited instances where Congress has given states authority to enforce particu- lar types of laws on Indian reservations. For example, Congress has given states authority to enforce sanitation and quarantine laws on Indian reservations.205 There is, however, no general law conferring upon states civil regulatory jurisdiction over Indian reservations. This is true even in Public Law 280 states. The civil jurisdiction provided to Public Law 280206 states has been con- strued by the Supreme Court as being limited to allowing state courts to resolve private disputes in âcivil causes of action be- tween Indians or to which Indians are parties which arise in the 204 McClanahan v. Ariz. State Tax Commân, 411 U.S. 164, 172, 93 S. Ct. 1257, 1262, 36 L. Ed. 2d 129, 135 (1973). See also White Moun- tain Apache, 448 U.S. 136, 100 S. Ct. 2578, 65 L. Ed. 2d 665 (1980), where the Court set out the modern preemption principles, and where a state motor carrier license tax on a non-Indian contractor was overturned; New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 103 S. Ct. 2378, 76 L. Ed. 2d 611 (1983), where a unanimous Court denied New Mexico concurrent jurisdiction of non-Indian fishermen and hunters on the reservation on the basis of federal pre- emption, concluding: âGiven the strong interest favoring exclusive tribal jurisdiction and the absence of state interests which justify the assertion of concurrent authority, we conclude that the application of the stateâs hunting and fishing laws to the reservation is pre- empted.â Id. at 344, 103 S. Ct. at 2391, 76 L. Ed. 2d at 627. 205 Pevar, supra note 5, at 128 n.55 citing 25 U.S.C. Â§ 231. 206 28 U.S.C. Â§ 1360. State civil jurisdiction in actions to which Indians are parties Each of the States listed in the following table shall have juris- diction over civil cause of action between Indians or to which Indians are parties which arise in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over other civil causes of action and those civil laws of such State that are of general applica- tion to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State. Note that this does not divest tribes of any jurisdiction. Accordingly, in Public Law 280 states, tribes and the state may have concurrent jurisdiction over some civil actions. [Included in the chart were Alaska, California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), and Wisconsin].
NCHRP LRD 76 19 conflicts with federal policies.216 Even if a court finds that a state regulation is not federally preempted, the law still may not be applied on an Indian reservation if it âinfringe[s] on the right of reservation Indians to make their own laws and be ruled by them.â217 The âtwo barriers [of infringement and preemption] are [considered] independent because either standing alone can be a sufficient basis for holding state law inapplicable.â218 The principles for applying these two tests were set out by the Supreme Court in the 1980 decision White Mountain Apache Tribe v. Bracker,219 in which the Court held that motor carrier license and use fuel taxes paid by a logging company under con- tract to sell, load, and transport timber on a reservation, were preempted by federal law and therefore not applicable on the Fort Apache Reservation. In a 6-3 decision, Justice Marshall, writing for the majority concluded: Where, as here, the Federal government has undertaken comprehen- sive regulation of the harvesting and sale of timber, where a number of the policies underlying the federal regulatory scheme are threat- ened by the taxes respondents seek to impose, and where respondents are unable to justify the taxes except in terms of a generalized interest in raising revenue, we believe that the proposed exercise of state au- thority is impermissible.220 Justice Marshallâs opinion provided distinct standards for apply- ing the âinfringementâ and âpreemptionâ tests when state au- thority in Indian country is challenged, he observed: This inquiry is not dependent on mechanical or absolute conceptions of state or tribal sovereignty, but has called for a particularized inquiry into the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal lawâ¦.221 (emphasis added). Reviewing the body of case law on this topic results in the following general observations: it is difficult for a state to en- force its regulatory laws against a tribal member on the reserva- tion in which they are enrolled (largely because of the infringe- ment test), but states are often able to enforce regulatory law on non-Indians on reservations. However, it is important to keep in mind that state efforts to exercise authority in matters affect- ing tribes continue to be subject to the particularized inquiry standard described above, and each regulatory law needs to be 216 White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S. Ct. 2578, 65 L. Ed. 2d 665 (1980). Note, however, that the Supreme Court has explicitly rejected this balancing test in the context of taxation cases. See Oklahoma Tax Commission v. Chicksaw Nation, 515 U.S. 450, 115 S. Ct. 2214, 132 L. Ed. 2d 400 (1995) which is discussed later in this section. 217 Williams v. Lee, 358 U.S. 217, 220, 79 S. Ct. 269, 271, 3 L. Ed. 2d 251, 256 (1959). 218 White Mountain Apache Tribe, 448 U.S. at. 143, 100 S. Ct. at 2583, 65 L. Ed. 2d at 672. 219 448 U.S. 136, 100 S. Ct. 2578, 65 L. Ed. 2d 665 (1980). 220 Id. at 152. 221 Id. at 145. See also Washington v. Confederated Tribes of the Colville Reservation, 447 U.S. 134, 100 S. Ct. 2069, 65 L. Ed. 2d 10 (1980) and Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 109 S. Ct. 1698, 104 L. Ed. 2d 209 (1989). amount of gambling activity, including bingo, and actually promotes gambling through its state lottery, we must conclude that California regulates rather than prohibits gambling in general and bingo in particularâ¦. But that an otherwise regulatory law is enforceable by criminal as well as civil means does not necessarily convert it into a criminal lawâ¦.214 Accordingly, we conclude that Pub. L. 280 does not authorize California to enforce Cal. Penal Code Ann. Â§ 326.5 (West Supp. 1987) within the Cabazon and Morongo Reservations.215 In summary, before proceeding to the test below, all practi- tioners should consider whether Congress has granted states au- thority to enforce the type of law in question, and practitioners in Public Law 280 states should also consider whether the law in question is a criminal-prohibitory law that the state has broader authority to enforce, or a civil-regulatory law that should be analyzed using the following test. A state law applies within reservation boundariesif the state law in question is not federally preempted and does not unlaw- fully infringe on the right of Indians living on reservations to make their own laws and be ruled by them. The preemption analysis in Indian law cases differs from traditional preemption analysis because the courts will find preemption even in the ab- sence of congressional intent. Federal preemption of state reg- ulation of Indians can take three forms: (1) preemption when federal law expressly provides; (2) preemption due to compre- hensive or pervasive federal regulation; and (3) preemption due to conflict with federal policies or achievement of congressional purpose found in underlying statutes. For this third type of pre- emption, bear in mind that tribes and the federal government have a shared interest in promoting tribal sovereignty, self-suffi- ciency, and economic development that will be balanced against the state interest in determining whether the state regulation 214 Id. at 211, 107 S. Ct. at 1090, 94 L. Ed. 2d at 256. 215 Id. at 212, 107 S. Ct. at 1090, 94 L. Ed. 2d at 256. Foerster considers Cabazon to be ineffective: The criminal/regulatory test set forth in Cabazon and the fac- tors upon which courts have come to rely are ineffective in distinguishing between criminal and regulatory laws. Cases involving essentially the same laws are resolved differently because of arbitrary and irrelevant distinctions. Often, the different outcomes are based on the importance of the law to the state rather than on any meaningful analysis about the criminal nature of the statute. Arthur F. Foerster, Divisiveness and Delusion: Public Law 280 and the Evasive Criminal/ Regulatory Distinction, 46 UCLA L. Rev. 1333, 1359 (1999). But see San Manual Indian Bingo and Casino, 341 NLRB 1055 (2004), where the NLRB overturned longstanding previous policy and held that gaming facility tribally owned and within confines of reservation was subject to NLRB jurisdiction. Contrast this case with Yukon Kuskokwin Health Corp. v. Intâl Bhd. of Teamsters, Local 959, 341 NLRB 1075 (2004), where the Board found no NLRB jurisdiction in Alaska Native health facility. Arguably, one distinc- tion in these cases is that unlike the gaming facility, only Alaska Natives could utilize the health facility.
20 NCHRP LRD 76 âThe touchstone for allocating authority among the various govern- ments has been the concept of Ì Indian Country,â a legal term delineat- ing the territorial boundaries of federal, state and tribal jurisdiction. Historically, the conduct of Indians and interests in Indian property within Indian Country have been matters of ederal and tribal con- cern. Outside Indian Country, state jurisdiction has obtained.â Ahboah v. Housing Auth. of the Kiowa Tribe, 660 P.2d 625, 627 (Okla. 1983); see State ex rel. May v. Seneca-Cayuga Tribe of Oklahoma, 711 P.2d 77, 79-82 n. 26 (Okla. 1985) (recognizing relevance of Indian country classification in eastern Oklahoma, formerly Indian Terri- tory). The State contends on appeal that the Mackey site is not Indian coun- try because it is not a âreservation,â nor is the fee title held in trust by the federal government for the Creek Nation. For the reasons set out below, we conclude that under both historical and contemporary definitions, the Mackey site has retained its status as Indian country and land reserved under the jurisdiction of the federal government and the Tribe.226 â¢ Oklahoma Tax Commission v. Citizen Band of Potawatomi Indian Tribe227: This case involved a tribe that was selling ciga- rettes at a convenience store that it owned on off-reservation trust land. The Oklahoma tax commission sent a letter demand- ing that the tribe pay back taxes on the cigarette sales. The tribe sued to enjoin the assessment and the tax commission coun- terclaimed to enforce the assessment and enjoin the tribe from making future sales without collecting and paying taxes to the state. The tribe motioned to dismiss the counterclaim on the basis of sovereign immunity. The Supreme Court held that the tribe was entitled to sovereign immunity for conduct on the off- reservation trust land and stated: The issue presented in this case is whether a State that has not asserted jurisdiction over Indian lands under Public Law 280 may validly tax sales of goods to tribesmen and nontribal members occurring on land held in trust for a federally recognized Indian tribe. We conclude that, under the doctrine of tribal sovereign immunity, the State may not tax such sales to Indians, but remains free to collect taxes on sales to nontribal members.228 â¢ Oklahoma Tax Commission v. Sac and Fox Nation229: in- volved attempts by the Oklahoma Tax Commission to tax the income of tribal members and impose vehicle taxes and regis- tration fees on tribal members. The Tax Commission argued that the tribe did not have an established reservation, but in- stead had allotted trust lands, and thus was not immune from the state taxes. The Court vacated the judgment and remanded the case to the lower court for it to determine whether the tribal members that the state was attempting to tax lived in Indian country. In doing so the Court stated: But our cases make clear that a tribal member need not live on a formal reservation to be outside the Stateâs taxing jurisdiction; it is enough that the member live in âIndian country.â Congress has de- fined Indian country broadly to include formal and informal res- ervations, dependent Indian communities, and Indian allotments, 226 Id. at 973 227 498 U.S. 505, 111 S. Ct. 905, 112 L. Ed. 2d 1112 (1991). 228 Id. at 507, 111 S. Ct. at 908, 112 L. Ed. 2d at 1118. 229 508 U.S. 114, 113 S. Ct. 1985, 124 L. Ed. 2d 30 (1993). analyzed and researched individually to determine its applica- bility within an Indian reservation. While most cases on this topic deal with the applicability of state regulatory laws on reservations, case law indicates that there are also limits to state regulatory jurisdiction in off-reser- vation Indian country. Consider the following cases: â¢ DeCoteau v. District Court 222: The question before the Supreme Court in this case was whether the reservation had been terminated. The parties to the case agreed that if the land was Indian country, the state did not have jurisdiction and that if the reservation had not been terminated, the land was Indian country. In a footnote, the Court stated: If the lands in question are within a continuing âreservation,â juris- diction is in the tribe and the Federal Government ânotwithstanding the issuance of any patent, [such jurisdiction] including rights-of-way running through the reservation.â 18 U.S.C. Â§ 1151(a). On the other hand, if the lands are not within a continuing reservation, jurisdiction is in the State, except for those land parcels which are âIndian allot- ments, the Indian titles to which have not been extinguished, includ- ing rights-of-way running through the same.â 18 U.S.C. Â§ 1151(c). Even within âIndian country,â a State may have jurisdiction over some persons or types of conduct, but this jurisdiction is quite limited.Â See, e.g., McClanahan v. Arizona State Tax Commân,Â 411 U. S. 164;Â Wil- liams v. Lee,Â 358 U. S. 217;Â Worcester v. Georgia,Â 6 Pet. 515. While Â§ 1151 is concerned, on its face, only with criminal jurisdiction, the Court has recognized that it generally applies as well to questions of civil jurisdiction.223 (citations omitted) â¢ U.S. v. South Dakota224: The Eighth Circuit Court of Ap- peals affirmed the lower courtâs order which held that a tribal housing project located on tribal trust land was a dependent In- dian community and restrained the State of South Dakota from asserting jurisdiction over the housing project. â¢ Indian Country U.S.A. v. Oklahoma Tax Commission225: holding that an off-reservation tract of land that was owned by the tribe, but not held in trust, was Indian country and therefore the state could not regulate or tax bingo activities on the land. The court stated: Although section 1151 [25 U.S.C. Â§ 1151] by its terms defines In- dian country for purposes of determining federal criminal jurisdic- tion, the classification generally applies to questions of both civil and criminal jurisdiction. See Cabazon, 107 S.Ct. at 1087 n. 5. Numerous cases confirm the principle that the Indian country classification is the benchmark for approaching the allocation of federal, tribal, and state authority with respect to Indians and Indian lands. See, e.g., id.; Solem v. Bartlett, 465 U.S. 463 465 n. 2, 104 S.Ct. 1161, 1163 n. 2, 79 L.Ed.2d 443 (1984); DeCoteau v. District County Court, 420 U.S. 425, 427-28 n. 2, 95 S.Ct. 1082, 1084 n. 2, 43 L.Ed.2d 300 (1975); Ken- nerly v. District Court, 400 U.S. 423 (1971); Cheyenne-Arapaho Tribes of Oklahoma v. Oklahoma, 618 F.2d 665 (10th Cir. 1980); see also Cohenâs Handbook of Federal Indian Law 27-46 (R. Strickland ed. 1982) [hereinafter Cohenâs Handbook] (âIndian countryâ usually the governing legal term for jurisdictional purposes); F. Cohen, Hand- book of Federal Indian Law 5-8 (1942) (âIndian countryâ generally determines allocation of tribal, federal, and state authority). We note that the Supreme Court of Oklahoma has also recognized the impor- tance of this classification: 222 420 U.S. 425, 95 S. Ct. 1082, 43 L. Ed. 2d 300 (1975). 223 Id. at 427 n.2, 95 S. Ct. at 1084, 43 L. Ed. 2d at 304. 224 665 F.2d 837 (8th Cir. 1981). 225 829 F.2d 967 (10th Cir. 1987). â¢
NCHRP LRD 76 21 â¢ Alaska v. Native Village of Venetie Tribal Government235: In this case, the Supreme Court held that the land at issue was not a dependent Indian community and was therefore not Indian country. The Courtâs opinion, however, discussed the definition of Indian country at 25 U.S.C. Â§ 1151236 and stated, âAlthough this definition by its terms relates only to fed- eral criminal jurisdiction, we have recognized that it also gen- erally applies to questions of civil jurisdiction such as the one at issue here. See DeCoteau v. District County Court for Tenth Judicial Dist.â (internal citation omitted).237 The footnote following this language stated, âGenerally speaking, primary jurisdiction over land that is Indian country rests with the Federal Government and the Indian tribe inhabit- ing it, and not with the States.â238 (citation omitted). 4. Tribal JurisdictionâTribal Jurisdiction in Indian Country a. Tribal Regulatory and Adjudicatory Jurisdiction in Indian Country The Marshall Trilogy placed two limitations on tribal sover- eignty due to tribesâ status as âdomestic dependent nations:â239 (1) tribes could not freely alienate their land, and (2) they could not make treaties with foreign nations. For almost 150 years, the U.S. Supreme Court did not add to these non-statutory limitations on tribal sovereignty. However, the jurisdictional landscape has since become much more complex. Today, a tribe has jurisdiction over its members unless Congress spe- cifically directs otherwise. Except where Congress has specifi- cally provided for tribal jurisdiction, determining when a tribe has adjudicatory or regulatory jurisdiction over nonmembers is an extraordinarily complex and fact-specific undertaking. The modern rules for determining when tribes have jurisdic- tion over nonmembers, as well as the confusion and complex- ity surrounding these rules, is best understood by reviewing a series of Supreme Court decisions. A basic understanding of land ownership on reservations is necessary to understand the cases discussed in this section; a summary of land ownership on reservations can be found at section C.1.c. of this digest entitled âWhat is an Indian Country?â This section will review the fol- lowing decisions one-by-one in more detail to orient the reader and highlight the shifts in law over time. Ownership of the un- derlying land is important in each case. â¢ Oliphant v. Suquamish Indian Tribe240: The Court be- gan to formulate a modern doctrine for determining the 235 522 U.S. 520, 118 S. Ct. 948, 140 L. Ed. 2d 30 (1998). 236 See section C.1.c in this digest. 237 Native Village of Venetie, 522 U.S. at 527, 118 S. Ct. at 952, 948, 140 L. Ed. 2d at 37-38. 238 Id. at 527 n.1, 118 S. Ct. at 952, 140 L. Ed. 2d at 37 Citing South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 118 S. Ct. 789, 139 L. Ed. 2d 773 (1998). 239 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, 8 L. Ed. 25(1831). 240 435 U.S. 191, 98 S. Ct. 1011, 55 L. Ed. 2d 909 (1978). whether restricted or held in trust by the United States. See 18 U. S. C. Â§ 1151.230 It went on to say: If the tribal members do live in Indian country, our cases require the court to analyze the relevant treaties and federal statutes against the backdrop of Indian sovereignty. Unless Congress expressly autho- rized tax jurisdiction in Indian country, the McClanahan presump- tion counsels against finding such jurisdiction.231 â¢ Oklahoma Tax Commission v. Chicksaw Nation232: This Supreme Court decision addressed two questions: (1) May Oklahoma impose its motor fuels excise tax upon fuel sold by Chickasaw Nation retail stores on tribal trust land; (2) May Oklahoma impose its income tax upon members of the Chicka- saw Nation who are employed by the tribe but who reside in the state outside Indian country. The Court answered these questions as follows: We hold that Oklahoma may not apply its motor fuels tax, as current- ly designed, to fuel sold by the Tribe in Indian country. In so holding, we adhere to settled law: when Congress does not instruct otherwise, a Stateâs excise tax is unenforceable if its legal incidence falls on a Tribe or its members for sales made within Indian country. We further hold, however, that Oklahoma may tax the income (including wages from tribal employment) of all persons, Indian and non-Indian alike, residing in the State outside Indian country.233Â The Court also expressly rejected application of the balanc- ing test to certain taxation cases, stating: We have balanced federal, state, and tribal interests in diverse con- texts, notably, in assessing state regulation that does not involve taxa- tion, see, e.g., California v. Cabazon Band of Mission Indians,Â 480 U.S. 202, 216-217, 107 S.Ct. 1083, 1091-1092, 94 L.Ed.2d 244 (1987)Â (bal- ancing interests affected by Stateâs attempt to regulate on-reservation high-stakes bingo operation), and state attempts to compel Indians to collect and remit taxes actually imposed on non-Indians. See, e.g., Moe v. Confederated Salish and Kootenai Tribes of Flathead Reserva- tion,Â 425 U.S. 463, 483, 96 S.Ct. 1634, 1646, 48 L.Ed.2d 96 (1976)Â (bal- ancing interests affected by Stateâs attempt to require tribal sellers to collect cigarette tax on non-Indians; precedent about state taxation of Indians is not controlling because âthis collection burden is not, strictly speaking, a tax at allâ). But when a State attempts to levy a tax directly on an Indian tribe or its members inside Indian country, rather than on non-Indians, we have employed, instead of a balancing inquiry, âa more categori- cal approach: âAbsent cession of jurisdiction or other federal statutes permitting it,â we have held, a State is without power to tax reserva- tion lands and reservation Indians.â County of Yakima v. Confeder- ated Tribes and Bands of Yakima Nation, 502 U.S. 251, 258, 112 S. Ct. 683, 688, 116 L.Ed.2d 687 (1992)Â (citation omitted). Taking this categorical approach, we have held unenforceable a number of state taxes whose legal incidence rested on a tribe or on tribal members inside Indian country. See, e.g., Bryan v. Itasca County,Â 426 U.S. 373, 96 S. Ct. 2102, 48 L.Ed.2d 710 (1976)Â (tax on Indian-owned personal property situated in Indian country); McClanahan v. Arizona State Tax Commân,Â 411 U.S. 164, 165-166, 93 S. Ct. 1257, 1258-1259, 36 L.Ed.2d 129 (1973)Â (tax on income earned on reservation by tribal members residing on reservation).234 230 Id. at 123, 113 S. Ct. at 1991, 124 L. Ed. 2d at 39. 231 Id. at 126, 113 S. Ct. at 1992, 124 L. Ed. 2d at 41. 232 515 U.S. 450, 115 S. Ct. 2214, 132 L. Ed. 2d 400 (1995). 233 Id. at 453, 115 S. Ct. at 2217, 132 L. Ed. 2d at 405. 234 Id. at 458, 115 S. Ct. at 2220, 132 L. Ed. 2d at 409. â¢
22 NCHRP LRD 76 must be a nexus between the consensual relationship and the regulation imposed. In essence, this means that a consensual relationship does not result in all of the tribeâs regulations apply- ing to the nonmember; only those regulations with a sufficient connection to the consensual relationship will apply to the non- member. The Court distinguished its decision in Merrion v. Ji- carilla Apache Tribe, by pointing out that Merrion involved trust land, whereas the instant case involved non-Indian fee land thus making the Montana rule applicable. â¢ Nevada v. Hicks 247: This decision was made in the same term as the Atkinson decision. In Hicks, the Court applied the Montana test to conduct occurring on tribal trust land to hold that the tribe did not have adjudicatory jurisdiction to hear a civil action against state game wardens whoâalong with tribal officersâhad entered trust land to execute state and tribal search warrants. In applying the Montana rule on trust lands, the Court pointed out that Oliphant did not in- volve distinctions based on land status. The Court also noted that a tribeâs adjudicative jurisdiction does not exceed its leg- islative jurisdiction, leaving open the question of whether a tribeâs legislative jurisdiction might be broader than its adju- dicative jurisdiction. The decision in Hicks was subsequently read both broadly, to apply the Montana rule to all attempts by tribes to obtain jurisdiction over nonmembers regardless of the land status (e.g., whether the activity at issue took place on trust land or non-Indian fee land),248 and narrowly, as extending the Montana rule to trust lands only in instances that involve tribal court jurisdiction over state officers enforcing state law. â¢ Plains Commerce Bank v. Long Family Land & Cattle Co.249: The Court held that the tribal court did not have adjudi- catory jurisdiction over a civil suit against a nonmember bank arising out the sale of a property on non-Indian fee land within reservation boundaries. Because this case involved non-Indian fee land, it did little to provide clarity about how narrowly or broadly to read the Courtâs opinion in Hicks. â¢ Dollar General Corporation v. Mississippi Band of Choctaw Indians250: The Fifth Circuit Court of Appeals upheld the tribeâs adjudicatory jurisdiction to hear a claim against a nonmember based on the âconsensual relationshipâ Montana exception. The conduct at issue took place on trust land, but the court merely mentioned this fact in passing essentially assuming that the Montana rule applied regardless of the land status.251 The peti- tion for certiorari likewise assumed that the Montana rule ap- plied. The Supreme Court granted cert, but ultimately issued a 4-4 decision with no precedential value and no written opinion 247 533 U.S. 353, 121 S. Ct. 2304, 150 L. Ed. 2d 398 (2001). 248 See for example, Smith v. Salish Kootenai College, 434 F.3d 1127 (9th Cir. filed Jan. 10, 2006); Attorneyâs Process and Investigation Ser- vices, Inc. v. Sac & Fox Tribe of the Mississippi in Iowa, 609 F.3d 927 (8th Cir. filed July 7, 2010). 249 554 U.S. 316., 128 S. Ct. 2709, 171 L. Ed. 2d 457 (2007). 250 136 S. Ct. 2159, 195 L. Ed. 2d 637 (2016). 251 Dolgencorp, Inc. and Dollar General Corp v. Mississippi Band of Choctaw Indians, 732 F.3d 409 (5th Cir. 2013) (opinion substituted by 746, F. 3d 167 (5th Cir. 2014). extent of tribal sovereignty. In Oliphant, the Court placed limitations on a tribeâs ability to obtain criminal jurisdiction over non-Indians. â¢ Montana v. United States241: The Court extended the Oliphant decision by substantially limiting tribal jurisdiction over nonmembers on non-Indian fee lands within reserva- tion boundaries, holding that generally tribes do not have regulatory jurisdiction over nonmembers on non-Indian fee lands. The Court articulated two exceptionsânow known as the Montana exceptionsâto this general rule: (1) a tribe may have regulatory jurisdiction over nonmembers who enter a consensual relationship with the tribe, and (2) a tribe may have regulatory jurisdiction over a nonmember when the nonmemberâs conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. â¢ Merrion v. Jicarilla Apache Tribe242: The Court held that the tribe had regulatory authority to tax nonmembers on trust lands. The Court did not mention the Montana decision, argu- ably highlighting the fact that the Montana rule applied only to non-Indian fee lands and not trust lands. â¢ Brendale v. Confederated Tribes and Bands of Yakima In- dian Nation243: This case involved the regulatory authority of a tribe to zone nonmember fee land within reservation bound- aries that the county had already zoned. The Court held that the tribe could zone a âclosed areaâ of the reservation that was primarily undeveloped tribal land to which nonmember access was restricted, but that the tribe could not zone an âopen areaâ of the reservation. The Court wrote three separate opinions pro- viding different reasoning and conclusions. The opinion that the largest number of justices signed emphasized the word âmayâ in the Montana exceptions; essentially stating that a tribe might have regulatory authority if a Montana exception exists, but that it âdepends on the circumstancesâ244 and that the Montana ex- ceptions were inapplicable to the question of zoning authority at issue in the case. â¢ Strate v. A-l Contractors245: The Court applied the Montana rule to determine whether the tribe had adjudicatory jurisdic- tion to hear a matter arising out of a car accident on a highway running through the reservation. In applying the Montana rule, the Court likened the right-of-way to alienated non-Indian fee land. â¢ Atkinson Trading Co. v. Shirley246: The Court held that the tribe did not have regulatory jurisdiction to tax non-Indian occupants of a hotel operating on non-Indian owned fee land within reservation boundaries. The Court applied the Montana test, noting that the burden of establishing that one of the Mon- tana exceptions exists is on the tribe. The Court also noted that for the tribe to obtain jurisdiction over a nonmember, there 241 450 U.S. 544, 101 S. Ct. 1245, 67 L. Ed. 2d 493 (1981). 242 445 U.S. 130, 102 S. Ct. 894, 71 L. Ed. 2d 21 (1982). 243 492 U.S. 408, 109 S. Ct. 2994, 106 L. Ed. 2d 343 (1989). 244 Id. at 429, 109 S. Ct. at 3007, 106 L. Ed. 2d at 362. 245 520 U.S. 438, 117 S. Ct. 1404, 137 L. Ed. 2d 661 (1997). 246 532 U.S. 645, 121 S. Ct. 1825, 149 L. Ed. 2d 889 (2001).
NCHRP LRD 76 23 following in regard to the âinherent powersâ of Indian tribal governments: Thus, in addition to the power to punish tribal offenders, the Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members and to prescribe rules of inheritance for membersâ¦. But exercise of tribal power beyond what is necessary to protect tribal self-government or to control in- ternal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express Congressional delegationâ¦. Since regulation of hunting and fishing by nonmembers of a tribe on lands no longer owned by the Tribe bears no clear relationship to tribal self-government or internal relations, the general principles of retained inherent sovereignty did not authorize the Crow tribe to [do so]. The Court recently applied these general principles in Oliph- ant v. Suquamish Indian Tribe, 435 U.S. 191, rejecting a tribal claim of inherent sovereign authority to exercise criminal jurisdiction over non-Indians[,] [s]tressing that Indian tribes cannot exercise power inconsistent with their diminished status as sovereignsâ¦. Though Oliphant only determined inherent tribal authority in criminal mat- ters, the principles on which it relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.260 (Emphasis added) The Court opined that while the tribe may regulate non- member hunting and fishing on land belonging to the tribe or held in trust for the tribe, that the tribe usually cannot exercise jurisdiction over nonmembers on non-Indian fee lands within reservation boundaries. The Court, however, noted that there are two exceptions to this general rule; tribes may exercise some forms of civil jurisdiction over nonmembers on non-Indian fee lands within reservation boundaries if one of the following ex- ceptions exists:261 1. 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 oth- er arrangements; 2. A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. The two exceptions listed above are now known as the Mon- tana exceptions. The Court provided a list of cases fitting within these two exceptions. The four cases listed as falling within the first exception were as follows:262 â¢ Williams v. Lee.263 Holding that the tribal courtânot state courtâhad jurisdiction over a lawsuit arising out of an on- reservation sales transaction between a nonmember plaintiff and member defendants. 260 Id. at 564, 101 S. Ct. at 1258, 67 L. Ed. 2d at 510. 261 Id. at 565â66, 101 S. Ct. at 1258, 67 L. Ed. 2d at 510-511. 262 Id.; Strate v. A-1 Contractors, 520 U.S. 438, 457, 117 S. Ct. 1404,1415, 137 L. Ed. 2d 661, 677-678 (1997). 263 358 U.S. 217, 79 S. Ct. 269, 3 L. Ed. 2d 251 (1959). beyond a simple order affirming the lower courtâs holding and noting that the Court was equally divided. The tendency of lower courts over time has been to favor a broad reading of Hicks that applies the Montana rule to all mat- ters involving tribal adjudicatory and regulatory jurisdiction over nonmembers regardless of the land status involved; this is despite the fact that in Hicks, the Supreme Court highlighted the narrow nature of the holding in a footnote. Nevertheless, the foregoing case summary makes it clear that the jurisdic- tional landscape is complex and unanswered questions remain. With this birds-eye view in mind, the remainder of this section will discuss some of the cases previously highlighted in greater detail. â¢ Oliphant v. Suquamish Indian Tribe252: Non-Indian resi- dents of the Port Madison Reservation in Washington, Mark David Oliphant and Daniel B. Belgrade, were arrested by tribal authorities. Oliphant was charged with assaulting a tribal of- ficer and resisting arrest. After a high-speed race along reserva- tion highways, Belgrade was charged with ârecklessly endan- gering another personâ and âinjuring tribal property.â253 The tribe argued that it had inherent sovereign authority to exercise criminal jurisdiction over non-Indians.254 The Court held that criminal prosecution of non-Indians was outside the inher- ent sovereign powers of the tribe due to the tribeâs status as a domestic dependent nation. The Court stated: âBy 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 * * *255 Indian tribes do not have inherent jurisdic- tion to try and to punish non-Indiansâ¦.â 256 One commentator notes that these ânew inherent limitations on tribal sovereign- tyâ¦represented a significant potential threat to tribal govern- mental power.â257 â¢ Montana v. United States258: Montana has been called the âseminalâ case on tribal jurisdiction in the modern era. In Mon- tana, the Crow tribe sought a declaratory judgment to sustain its regulatory authority to prohibit hunting and fishing by non- members within reservation boundaries. Due to the sale of fee- patented lands under the Allotment Acts, about 30 percent of the Crow reservation was owned in fee by non-Indians.259 Both the State of Montana and the Crow Tribe were regulating fishing by non-Indians on non-Indian-owned fee lands within the res- ervation. The Court found that relevant treaties did not give the tribe authority to regulate hunting and fishing on land owned by non-Indians and that the tribe did not have inherent powers as a sovereign to engage in such regulation. The Court stated the 252 435 U.S. 191, 98 S. Ct. 1011,55 L. Ed.2d 209 (1978). 253 Id. at 194, 98 S. Ct. at 1014, 55 L. Ed.2d at 213. 254 Id. at 196, 98 S. Ct. at 1014, 55 L. Ed.2d at 213. 255 Id. at 210, 98 S. Ct. at 1021, 55 L. Ed.2d at 222 256 Id. at 212, 98 S. Ct. at 1022, 55 L. Ed.2d at 223. 257 Canby, supra note 5, at 78. 258 450 U.S. 544, 101 S. Ct. 1245, 67 L. Ed. 2d 493 (1981). 259 Id. at 548, 101 S. Ct. at 1249, 67 L. Ed. 2d at 499-500.
24 NCHRP LRD 76 formally into an âopen areaâ and a âclosed area,â with one fee- owned property at issue located in the open area. The other fee-owned property at issue was in the closed area, 97 percent of which was tribal land containing no permanent residents and described as an âundeveloped refuge of cultural and reli- gious significance,â276 with restricted access to nonmembers. The Court wrote three separate opinions, with three distinct views of inherent power: 1. Justice White, joined by three justices, held that the tribe had neither treaty-reserved nor inherent powers to zone nonmember fee land. 2. Justice Blackmun, joined by two justices, concluded that the tribe had the full inherent sovereign power to zone both member and nonmember fee lands lying within the reservation. 3. Justice Stevens, joined by one justice, said that the tribe could zone the nonmember fee property in the closed area, but not the open area. This split decision resulted in the tribeâs authority to zone being upheld only as to the closed area. Justice Whiteâs opin- ion is significant because in it four justices departed from the analysis in Montana, holding that tribal regulatory jurisdiction over nonmember fee lands was not necessarily prohibited, even when conduct (over-development) threatened the political in- tegrity, the economic security, or the health and welfare of the tribe (the second Montana exception).277 â¢ Strate v. A-l Contractors278: The Courtâs decision in this case is important to state highway agencies with right-of-way over Indian reservations. Before this decision, the Montana rule covered only the regulatory authority of a tribe over non- members. But in this case, the Court extended the Montana rule to a case addressing the adjudicatory authority of tribes, stating: âtribal courts may not entertain claims against non- members arising out of accidents on state highways, absent a statute or treaty authorizing the tribe to govern the conduct of nonmembers on the highway in question.â279 The suit arose out of a collision between the plaintiff who was a nonmember wife of a deceased tribal member and a nonmember defendant who was an employee of a contrac- tor doing business with the tribe on the reservation. The collision occurred on a North Dakota state highway run- ning through the Fort Berthold Indian Reservation. In a unanimous decision upholding the en banc decision of the Eighth Circuit Court of Appeals, the Court found that the stateâs federally granted right-of-way over tribal trust land was the âequivalent, for nonmember governance purposes, 276 Id. at 441, 109 S. Ct. at 3013, 106 L. Ed. 2d at 370. 277 Montana v. United States, 450 U.S. 544, 565, 101 S. Ct. 1245, 1258, 67 L. Ed. 2d 493, 510 (1981). 278 520 U.S. 438, 117 S. Ct. 1404, 137 L. Ed. 2d 661 (1997). 279 Id. at 442, 117 S. Ct. at 1407, 137 L. Ed. 2d at 668. â¢ Morris v. Hitchcock.264 Upholding a tribal permit tax on non- member-owned livestock within reservation boundaries. â¢ Buster v. Wright.265 Upholding the tribeâs permit tax on non- members for the privilege of conducting business within the tribeâs borders; the Court characterized as âinherentâ the tribeâs âauthorityâ¦to prescribe the terms upon which non- citizens may transact business within its borders.â266 â¢ Washington v. Confederated Tribes of Colville Indian Res- ervation.267 Tribal authority to tax on-reservation cigarette sales to nonmembers âis a fundamental attribute of sover- eignty which the tribes retain unless divested of it by federal law or necessary implication of their dependent status.â268 The Court also listed four cases falling within the second Montana exception: â¢ Fisher v. District Court.269 Recognizing the exclusive compe- tence of a tribal court over an adoption proceeding when all parties belonged to the tribe and resided on its reservation. â¢ Williams v. Lee.270 Holding a tribal court exclusively compe- tent to adjudicate a claim by a non-Indian merchant seeking payment from tribal members for goods bought on credit at an on-reservation store. â¢ Montana Catholic Missions v. Missoula County.271 â[T]he Indiansâ interest in this kind of property [livestock], situ- ated on their reservations, was not sufficient to exempt such property, when owned by private individuals, from [state or territorial] taxation.â272 â¢ Thomas v. Gay.273 â[Territorial] tax put upon cattle of [non- Indian] lessees is too remote and indirect to be deemed a tax upon the lands or privileges of the Indians.â274 Before the decision in Montana, tribal authority to regulate was based upon geography; essentially, tribes could regulate all activity and land within reservation boundaries. Under the rule articulated in Montana, tribal sovereignty was reduced to a mix- ture of geography and tribal membership. â¢ Brendale v. Confederated Tribes and Bands of Yakima Indian Nation275: The dispute in this case was about the authority of the tribes to impose zoning regulations on two pieces of prop- erty owned in fee by nonmembers when the area at issue was already zoned by the county. The reservation was divided in- 264 194 U.S. 384, 24 S. Ct. 712, 48 L. Ed. 1030 (1904). 265 135 F. 947 (Cal. 8th 1905). 266 Id. at 950. 267 447 U.S. 134, 100 S. Ct. 2069, 65 L. Ed. 2d 10 (1980). 268 Id. at 152, 100 S. Ct. at 2081, 65 L. Ed. 2d at 28. 269 424 U.S. 382, 386, 96 S. Ct. 943, 946, 47 L. Ed. 2d 106, 111 (1976). 270 Lee, 358 U.S. at 220, 79 S. Ct. at 271, 3 L. Ed. 2d at 254. 271 200 U.S. 118, 26 S. Ct. 197, 50 L. Ed. 398 (1906). 272 Id. at 128-129, 26 S. Ct. at 211. 273 169 U.S. 264, 18 S. Ct. 340, 42 L. Ed. 740 (1898). 274 Id. at 273, 18 S. Ct. at 343, 42 L. Ed. at 744. 275 492 U.S. 408, 109 S. Ct. 2994, 106 L. Ed. 2d 343 (1989).
NCHRP LRD 76 25 ans to make their own laws and be ruled by themâ¦.â The Montana rule, therefore, and not its exceptions, applies to this case.286 â¢ Atkinson Trading Co. v. Shirley287: Chief Justice Rehnquist, writing for a unanimous Court, addressed the question of whether the general rule of Montana applied to tribal attempts to tax nonmember occupants of a hotel operating on non- Indian owned fee land on the Navajo Reservation. There was no dispute that the hotel benefited from the Navajo Nationâs police and fire protection. However, the Court invalidated the tax, holding that the Montana rule applied âstraight up,â that such a tax upon nonmembers on non-Indian fee land was âpresumptively invalid,â and that neither of the Montana excep- tions applied.288 The opinion distinguished the Courtâs ruling in Merrion v. Jicarilla Apache Tribe,289 in which the Court upheld a severance tax imposed on non-Indian lessees authorized to extract oil and gas from tribal land, pointing out that Merrion was âcareful to note that an Indian tribeâs inherent power to tax only extended to âtransactions occurring on trust lands and sig- nificantly involving a tribe or its members.ââ290 In rejecting the applicability of the first Montana exception (âconsensual relationshipâ) the Court observed: [W]e think the generalized availability of tribal services patently in- sufficient to sustain the Tribeâs civil authority over nonmembers on non-Indian fee land. The consensual relationship must stem from âcommercial dealing, contracts, leases, or other arrangements,â [cita- tions omitted] and a nonmemberâs actual or potential receipt of tribal police, fire, and medical services does not create the requisite connec- tionâ¦. We therefore, reject respondentsâ broad reading of Montanaâs first exception, which ignores the dependent status of Indian tribe and subverts the territorial restriction upon tribal power.291 Furthermore, in rejecting the applicability of the second Montana exception, the Court described a high bar for conduct that would fall within the second Montana exception: [W]e fail to see how petitionerâs operation of a hotel on non-Indian fee land âthreatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.â292[U]nless the drain of the nonmemberâs conduct upon tribal services and re- 286 Id. at 459, 117 S. Ct. at, 1415, 137 L. Ed. 2d at 679. See also Michael Boxx v. Long Warrior, 265 F.3d 777 (9th Cir. 2001) (amended opinion reported at 2001 U.S. App. LEXIS 24917 (9th Cir. filed Sept. 6, 2001) (an alcohol-related truck rollover accident was not such a safety concern to tribe as to fall within the second Mon- tana exception); County of Lewis v. Allen, 163 F.3d 509 (9th Cir. filed Dec. 11, 1998), suit by a tribal member for false arrest by a county deputy on tribal lands, the court of appeals, in finding the first Montana exception inapplicable, stated âMontanaâs exception for suits arising out of consensual relationships has never been extended to contractual agreements between two governmental entities and we decline to hold that the exception applies to an inter- governmental law enforcement agreement.â). 287 532 U.S. 645, 121 S. Ct. 1825, 149 L. Ed. 2d 889 (2001). 288 Id. at 647, 654, 659, 121 S. Ct. at 1832, 1835, 149 L. Ed. 2d at 889, 902. 289 455 U.S. 130, 102 S. Ct. 894, 71 L. Ed. 2d 21 (1982). 290 Atkinson Trading, 532 U.S. at 653, 121 S. Ct. at 1831, 149 L. Ed. 2d at 898 citing Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137, 102 S. Ct. 894, 901, 71 L. Ed. 2d 21, 29 (1982). 291 Id. at 655, 121 S. Ct. at 1833, 149 L. Ed. 2d at 900. 292 Id. at 657, 121 S. Ct. at 1834, 149 L. Ed. 2d at 901. to alienated, non-Indian land.â280 In reaching this conclusion, the Court considered the following factors relative to the right-of-way: (1) the legislation that created the right-of-way; (2) whether the right-of-way was acquired by the state with the consent of the tribe; (3) whether the tribe had reserved the right to exercise dominion and control over the right- of-way; (4) whether the land was open to the public; and (5) whether the right-of-way was under state control.281 The Court reasoned that the tribeâs loss of the ââright of absolute and exclusive use and occupationâ¦implied the loss of regu- latory jurisdiction over the use of the land by others.â282 [and that] â[a]s to nonmembersâ¦a tribeâs adjudicative jurisdic- tion does not exceed its legislative jurisdiction.â283 It therefore concluded that Montana, âthe pathmarking case concerning tribal civil authority over nonmembers,â284 was the control- ling precedent. After concluding that Montana was the applicable precedent, the Court rejected assertions that either of the two Montana exceptions applied. In rejecting application of exception two (âthreatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribeâ), the Court stated: Undoubtedly, those who drive carelessly on a public highway running through a reservation endanger all in the vicinity, and surely jeopar- dize the safety of tribal members. But if Montanaâs second exception requires no more, the exception would severely shrink the ruleâ¦.285 Neither regulatory nor adjudicatory authority over the state highway accident at issue is needed to preserve âthe right of reservation Indi- 280 Id. at 454, 117 S. Ct. at 1413, 137 L. Ed. 2d at 676; Accord, Wilson v. Marchington, 127 F.3d 805 (9th Cir. filed Sept. 23, 1997) (accident between member and nonmember on Montana U.S. Highway 2 on the Blackfeet Reservation, State right-of-way found to be equivalent to fee land); See also Burlington N.R.R. Co. v. Red Wolf, 196 F.3d 1059 (9th Cir. 1999) (death action arising from a col- lision between an automobile and train on railroad right-of-way, within the exterior boundaries of the Crow Reservation. Held: â[A] right-of-way granted to a railroad by Congress over reservation land is âequivalent for nonmember governance purposes, to alienated, non- Indian land.ââ Court rejected contention that the first Montana exception (âconsensual relationshipsâ) applied, holding that â[a] right-of-way created by congressional grant is a transfer of a prop- erty interest that does not create a continuing consensual relation- ship.â Id. at 1064.). 281 See Strate, 520 U.S. at 455â56, 117 S. Ct. at, 1414, 137 L. Ed. 2d at 676. See also State of Mont. Depât of Transp. v. King, 191 F.3d 1108, 1113 (n.1) (9th Cir. 1999). But see McDonald v. Means, 309 F.3d 530 (9th Cir. filed Oct. 18, 2001) (Tort action arising from car striking horse on Bureau of Indian Affairs Route 5 on Northern Cheyenne Reservation, Held: âWe conclude that BIA roads constitute tribal roads not subject to Strate, and that the BIA right-of-way did not extinguish the Tribeâs gatekeeping rights to extent necessary to bar tribal court jurisdiction under Montanaâ¦.â Id. 536. âThe BIA right- of-way is not granted to the State, and forms no part of the Stateâs highway system.â Id. 539. 282 Strate, 520 U.S. at 456, 117 S. Ct. at, 1414, 137 L. Ed. 2d at 676, quoting South Dakota v. Bourland, 508 U.S. 679, 689, 113 S. Ct. 2309, 2316, 124 L. Ed. 2d 606, 619 (1993). 283 Id. at 453, 117 S. Ct. at, 1413, 137 L. Ed. 2d at 675. 284 Id. at 445, 117 S. Ct. at, 1409, 137 L. Ed. 2d at 670. 285 Id. at 457-458, 117 S. Ct. at, 1415, 137 L. Ed. 2d at 678.
26 NCHRP LRD 76 [citations omitted], which we have called the âpathmarking caseâ on the subject.299 The tribe and the United States argued that âsince Hickâs home and yard are on tribe-owned land within the reserva- tion, the tribe may make its exercise of regulatory authority over nonmembers a condition of nonmembersâ entry.â300 The Court, however, pointed out that in Oliphant, the Court drew no distinctions based on the status of land in denying tribal criminal jurisdiction over nonmembers. Recognizing, however, that nonmember ownership of land was central to the analysis in both Montana and Strate, the Court still concluded that the âownership status of landâ¦is only one factor to consider in de- termining whether regulation of the activities of nonmembers is ânecessary to protect tribal self-government or control internal relations[,]â [b]ut the existence of tribal ownership is not alone enough to support regulatory jurisdiction over nonmembers.â301 The opinion then proceeds to address two questions: âwhether regulatory jurisdiction over state officers in the pres- ent context is ânecessary to protect tribal self-government or to control internal relations,â and, if not, whether such regulatory jurisdiction has been congressionally conferred.â302 The Court answered both questions in the negative. In responding to ques- tion one, the opinion stresses the need for âaccommodationâ of tribal, federal government, and state interests, using, essentially, a balancing of interests test: 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 themâ¦. Our cases make clear that the Indiansâ right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation. State sov- ereignty does not end at a reservationâs borderâ¦it was âlong agoâ that âthe Court departed from Chief Justice Marshallâs view that âthe laws of [a State] can have no forceâ within reservation bound- aries. [citations omitted] 303â¦the principle that Indians have the right to make their own laws and be governed by them requires âan accommodation between the interests of the Tribes and the Federal Government, on the one hand, and those of the State, on the other.â Washington v. Confederated Tribes of Colville Reserva- 299 Id. at 357â58, 121 S. Ct. at 2309, 150 L. Ed. 2d at 406-407. At id. 358 n.2, 121 S. Ct. at 2309, 150 L. Ed. 2d at 407, Justice Scalia points out: we have never held that a tribal court had jurisdiction over a nonmember defendant ....Typically, our cases have involved claims brought against tribal defendants. See, e.g., Williams v. Lee, 358 U.S. 217 (1959). In Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997), however, we assumed that âwhere tribes possess authority to regulate the activities of nonmembers, civil jurisdiction over disputes arising out of such activities presumably lies in the tribal courts,â without distinguishing between nonmember plaintiffs and nonmember defendants. See alsoÂ Iowa Mut. Ins. Co.Â v.Â LaPlante,Â 480 U.Â S. 9, 18Â (1987). Our holding in this case is limited to the question of tribal-court jurisdiction over state officers enforcing state law. We leave open the question of tribal-court jurisdiction over nonmember defendants in general. 300 Id. at 359, 121 S. Ct. at 2310, 150 L. Ed. 2d at 408. 301 Id. at 360, 121 S. Ct. at 2310, 150 L. Ed. 2d at 408. 302 Id. 303 Id. at 361, 121 S. Ct. at 2311, 150 L. Ed. 2d at 409. sources is so severe that it actually âimperil[s]â the political integrity of the Indian tribe, there can be no assertion of civil authority beyond tribal lands.293 â¢ Nevada v. Hicks294: Hicks expanded the application of the Montana rule beyond non-Indian fee lands further di- minishing the role that geography plays in determining the jurisdictional authority of a tribe. Hicks presented the ques- tion of whether a tribal court could assert jurisdiction over civil claims against state game wardens who entered tribal land to execute state and tribal court search warrants against a tribal member suspected of having violated state law out- side the reservation.295 Hicks, a member of the Fallon Paiuteâ Shoshone Tribes in Nevada, resided on tribally owned trust land within the reservation and was suspected of killing a California bighorn sheep outside reservation boundaries, which was a gross misdemeanor under Nevada law. Acting under search warrants issued by both state and tribal courts, Nevada game wardens, accompanied by tribal officers, un- successfully searched Hicksâ home. Hicks claimed that in the process his Rocky Mountain bighorn sheep heads (an un- protected species) had been damaged and that the search ex- ceeded the bounds of the warrant. Hicks brought suit in trib- al court against the tribal judge, tribal officers, state wardens, and the State of Nevada. Following a series of dismissals, only his suit against the state wardens in their individual capaci- ties remained. The causes of action included trespass to land and chattels, abuse of process, denial of equal protection, de- nial of due process, and unreasonable search and seizure.296 The Ninth Circuit affirmed the district courtâs holding that the tribal court had jurisdiction over the tortuous conduct claims against the nonmember game wardens arising from their activities on tribal trust land.297 The U.S. Supreme Court granted certiorari and reversed. The Courtâs opinion points to Strate v. A-1 Contractors for the principle that âAs to nonmembersâ¦a tribeâs adjudicative ju- risdiction does not exceed its legislative jurisdictionâ¦.â298 The Court went on to state, âWe first inquire, therefore, whether theâ¦Tribesâeither as an exercise of their inherent sovereignty, or under grant of federal authorityâcan regulate state wardens executing a search warrant for evidence of an off-reservation crime. Indian tribesâ regulatory authority over nonmembers is governed by the principles set forth in Montana v. United States 293 Id. at 657 n.12, 121 S. Ct. at 1834, 149 L. Ed. 2d at 901. 294 533 U.S. 353, 121 S. Ct. 2304, 150 L. Ed. 2d 398 (2001). 295 Id. at 355, 121 S. Ct. at 2308, 150 L. Ed. 2d at 405. 296 Id. at 356â57, 121 S. Ct. at 2308, 150 L. Ed. 2d at 406. 297 Nevada v. Hicks, 193 F.3d 1020 (1999). 298 Hicks, 353 U. S. at 391, 121 S. CT. at 2326, 150 L. Ed. 2d at 428.
NCHRP LRD 76 27 ception.309 Justice OâConnor takes issue with the majorityâs dis- missal of the applicability of this exception, contending that âthe majority provides no support for this assertion.â310 After an ex- tensive review of existing state authority to enter into consensu- al relationships with tribes and giving several examples of con- sensual relationships between state and tribal governments, she asserts that âour case law provides no basis to conclude that such a consensual relationship could never exist,â311 concluding that â[T]here is no need to create a per se rule that forecloses future debate as to whether cooperative agreements, or other forms of official consent, could ever be a basis for tribal jurisdiction.â312 â¢ Plains Commerce Bank v. Long Family Land & Cattle Co.313: In this case, the question presented before the U.S. Supreme Court was whether a tribal court had jurisdiction to adjudicate a discrimination claim concerning a non-Indian bankâs sale of fee land it owned. The court opined that it did not. The Long Family Land and Cattle Company, an Indian- owned farming and ranching business subject to South Dakota laws and located within the Cheyenne River Sioux Indian Res- ervation mortgaged its land subject to an option to buy to Plains Commerce Bank, a South Dakota corporation located outside of the reservation. The mortgage loan agreement was negoti- ated on the reservation but signed in the Bankâs off-reservation offices. The Long Company was unable to satisfy the loan agree- ment, including exercising their option to repurchase the land, and the Bank initiated state eviction proceedings. The Bank then parceled the land and sold these to nonmembers. The Long Company filed a complaint in the tribal court al- leging common law claims and discrimination. After losing in the tribal court system, the Bank filed an action in the federal district court claiming lack of jurisdiction of the tribal court over the discrimination claim. The district court found that the tribal court had jurisdiction over the Bank because of the nexus between the discrimination claim and the consensual relation- ship between the parties. The Eighth Circuit Court of Appeals agreed. However, the U.S. Supreme Court reversed the appel- 309 See Id. at 359 n.3, 121 S. Ct. at 2310, 150 L. Ed. 2d at 407: Montana recognized an exceptionâ¦for tribal regulation of âthe activities of nonmembers who enter consensual relation- ships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.ââ Montana, 450 U.S. at 565. Though the wardens in this case âconsensu- allyâ obtained a warrant from the Tribal Court before search- ing respondentâs home and yard, we do not think this qualifies as an âother arrangementâ within the meaning of this pas- sage. Read in context, an âother arrangementâ is clearly another private consensual relationship, from which the offi- cial actions at issue in this case are far removed. 310 Id. at 392, 121 S. Ct. at 2327, 150 L. Ed. 2d at 429. 311 Id. at 394, 121 S. Ct. at 2328, 150 L. Ed. 2d at 430. 312 Id. at 394. Canby, supra note 5, at 85, observes that Hicks âappears to render futile and unnecessary the cooperative arrange- ments reflected in the state courtâs requirement in Hicks of a tribal warrant, or in tribalâstate extradition agreements that have been worked out during the past fifty years. See, e.g., Arizona ex rel. Mer- rill vs. Turtle 413 F.2d 683 (9th Cir. 1969).â 313 554 U.S, 316, 128 S. Ct. 2709, 171 L. Ed.2d 457 (2008). tion, 447 US 134, 156, 65 L. Ed 2d 10, 100 S Ct 2069 (1980)304 â¦a proper balancing of state and tribal interests would give the Tribes no jurisdiction over state officers pursuing off-reservation violations of state law.305 As to the second question, the Court stated: We conclude todayâ¦that tribal authority to regulate state officers in executing process related to the violation, off reservation, of state laws is not essential to tribal self-government or internal relationsâto âthe right to make laws and be ruled by them.â The Stateâs interest in ex- ecution of process is considerable, and even when it relates to Indian- fee lands it no more impairs the tribeâs self-government than federal enforcement of federal law impairs state governmentâ¦.306 Nothing in the federal statutory scheme prescribes, or even remotely suggests, that state officers cannot enter a reservation (including Indian-fee land) to investigate or prosecute violations of state law occurring off the reservationâ¦.307 Because theâ¦Tribes lacked legislative author- ity to restrict, condition, or otherwise regulate the ability of state of- ficials to investigate off-reservation violations of state law, they also lacked adjudicative authority to hear respondentâs claimâ¦. Nor can the Tribes identify any authority to adjudicate respondents Â§ 1983 claim.308 One treatment of Montanaâs consensual relationship ex- ception by the Court appears in a footnote that concludes that âother arrangementâ is clearly another âprivate consensual rela- tionship,â implying that governmental consensual relationships do not fall within the âconsensual relationshipâ Montana ex- 304 Id. at 361-362, 121 S. Ct. at 2311, 150 L. Ed. 2d at 409. 305 Id. at 374, 121 S. Ct. at 2318, 150 L. Ed. 2d at 417. See Sarah Krakoff, Undoing Indian Law One Case at a Time: Judicial Mini- malism and Tribal Sovereignty, 50 AM. U. L. Rev. 1177, 1236 (2001); A devoted Indian law optimist might attempt to cabin the implications of Hicks by noting that, essentially, the Court adopted a balancing test to determine whether the tribal court had jurisdiction over these non-Indian defendants, and the stateâs strong interest in investigating off-reservation crimes outweighed the tribal interest. There is room, the opti- mist might protest, for other non-Indian defendants to pres- ent stronger cases for tribal jurisdiction, even in the absence of a consensual relationship (footnotes omitted).See also David H. Getches, Beyond Indian Law: The Rehniquist Courtâs Pursuit of Statesâ Rights, Color-Blind Justice and Mainstream Values, 86 Minn. L. Rev. 267, 331 (2001), at 331: â¦Justice Scalia stressed that âthe Stateâs interest in execution of process is considerable enough to outweigh the tribal interest in self- government even when it relates to Indian-fee lands.â As Justice OâConnor observed, âThe majorityâs sweeping opinion, without cause, undermines the authority of tribes to make their own laws and be ruled by them.â From the perspective of one knowledgeable in Indian law, âThe majorityâs analysisâ¦is exactly backwards.â 306 Id. at 364, 121 S. Ct. at 2312, 150 L. Ed. 2d at 411. 307 Id. at 366, 121 S. Ct. at 2313, 150 L. Ed. 2d at 412. 308 Id. at 374, 121 S. Ct. at 2318, 150 L. Ed. 2d at 417.
28 NCHRP LRD 76 fee lands,â 450 U.S., at 565âclearly implying that the general rule ofÂ MontanaÂ applies to both Indian and non-Indian land. The own- ership status of land, in other words, is only one factor to consider in determining whether regulation of the activities of nonmembers is ânecessary to protect tribal self-government or to control internal relations.â It may sometimes be a dispositive factor.317 As noted in the introduction to this section, the tendency of lower courts has been to apply the Montana rule to all matters involving tribal adjudicatory and regulatory jurisdiction over nonmembers regardless of the land status involved. Due to the progression of the Supreme Courtâs decisions on tribal jurisdictionâas described in this sectionâit is important for practitioners to read other court decisions on this topic with an understanding of where each decision falls in the timeline of the major Supreme Court decisions described above. The precedential value of cases that pre-date some of these semi- nal decisions may be limited. While Indian country is the widely acknowledged jurisdic- tional benchmark, there is a lack of case law directly addressing jurisdictional questions, and particularly tribal jurisdiction, in off-reservation Indian country. Nevertheless, consider the fol- lowing cases on this topic: â¢ Pittsburg Mining Co. v. Watchman318: This case involved an attempt by the Navajo Nation to tax a mining company with a mine located on off-reservation land with a checkerboard of title including tribal trust land, non-Indian fee land, land owned by the tribe, BIA land, and land owned by the State of New Mexico. The Tenth Circuit found that part of the land area in question was Indian country and remanded to the lower court for ad- ditional factual findings necessary to determine whether other portions of the land were also Indian country. In doing so, while discussing the applicability of the tribal abstention doctrine (al- lowing the tribal court to hear the case before the federal court), the court stated: P & M [the mining company] relies upon a variety of cases, all con- cerning the inherent authority of Indian tribes, for its conclusion the Navajo Nation has no authority to regulate non-Indian activities on non-Indian lands. Nonetheless, we believe P M mischaracterizes the nature of this issue. The question is not whether the Navajo Nation possesses inherent authority as a sovereign to tax P M, but whether 18 U.S.C. Â§ 1151 [defining Indian country] is a Congressional delegation of this authority throughout Indian country. As such, the cases P M cites are inapposite. P & M argues 18 U.S.C. Â§ 1151 defines Indian country solely for criminal jurisdiction purposes. However, both the Supreme Court and this court have concluded Â§ 1151 defines Indian country for both civil and criminal jurisdiction purposes. The Court first came to this conclusion in DeCoteau v. District County Court, 420 U.S. 425, 95 S. Ct. 1082, 43 L.Ed.2d 300 (1975). âWhile Â§ 1151 is concerned, on its face, only with criminal jurisdiction, the Court has recognized that it generally applies as well to questions of civil jurisdiction.â Id. at 427 317 Nevada v. Hicks, 533 U.S. 353, 359-360, 121 S. Ct. 2304, 2310, 150 L. Ed. 2dd 398, 407-408 (2001). 318 52 F.3d 1531 (10th Cir. filed Apr. 19,1995). Note that the test for what constitutes a dependent Indian community used in this case was partially abrogated by the U.S. Supreme Court decision in Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 118 S. Ct. 948, 140 L. Ed. 2d 30 (1998). late court, finding that the Montana exceptions did not apply in this case; Montana exceptions were meant only to permit tribal oversight of nonmember conduct that would threaten the tribeâs internal affairs or self-rule and dignity. The effect of a sale of land ownership to a tribeâs self-rule ends when the land passes from tribal ownership to non-Indian fee simple status. Hicks and Plain v. Long Family Land & Cattle Co. are thus the culmination of a series of cases that reversed the usual pre- sumption regarding sovereignty when the tribeâs power over nonmembers is concerned at least. Instead of presuming that tribal power exists, and searching whether statutes or treaties negate that presumption, the Court presumes that tribal power over nonmembers is absent unless one of the Montana excep- tions applies or Congress has otherwise conferred the power.â¦. In any event, the Supreme Court appears to have cemented firmly its view that tribes, as domestic dependent nations, have no authority over nonmembers unless one of the two Montana exceptions applies, and no criminal authority over non-Indians at all unless Congress authorizes it.314 (citations omitted). Lower courts proceeded to read Hicks in two ways: (1) broadly, as applying the Montana rule to all attempts by tribes to obtain jurisdiction over nonmembers regardless of the land status (e.g., whether the activity at issue took place on trust land or non-Indian fee land),315or (2) narrowly, as extending the Montana rule to trust lands only in instances that involved tribal court jurisdiction over state officers enforcing state law.316 The Supreme Court in Hicks explicitly limited its holding to the question of tribal-court jurisdiction over state officers enforcing state law, leaving open the question of tribal-court jurisdiction over nonmember defendants in general. However, the decision in Hicks also contains broader language such as that found in the following passage: BothÂ MontanaÂ andÂ StrateÂ rejected tribal authority to regulate non- membersâ activities on land over which the tribe could not âassert a landownerâs right to occupy and exclude,âÂ Strate,Â supra, at 456;Â Mon- tana,Â supra, at 557, 564. Respondents and the United States argue that since Hicksâs home and yardÂ areÂ on tribe-owned land within the reservation, the Tribe may make its exercise of regulatory authority over nonmembers a condition of nonmembersâ entry. Not necessar- ily. While it is certainly true that the non-Indian ownership status of the land was central to the analysis in bothÂ MontanaÂ andÂ Strate, the reason that was so wasÂ notÂ that Indian ownership suspends the âgeneral propositionâ derived fromÂ OliphantÂ that âthe inherent sov- ereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribeâ except to the extent ânecessary to protect tribal self-government or to control internal relations.â 450 U.S., at 564â565.Â OliphantÂ itself drew no distinctions based on the status of land. AndÂ Montana, after announcing the general rule of no juris- diction over nonmembers, cautioned that â[t]o be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil juris- diction over non-Indians on their reservations, even on non-Indian 314 Canby, supra note 5, at 87. 315 See for example, Smith v. Salish Kootenai College, 434 F.3d 1127 (9th Cir. filed Jan. 10, 2006); Attorneyâs Process and Investigation Ser- vices, Inc. v. Sac & Fox Tribe of the Mississippi in Iowa, 609 F.3d 927 (8th Cir. filed July 7, 2010). 316 See for example, McDonald v. Means, 309 F.3d 530 (9th Cir. filed Aug. 14, 2002).
NCHRP LRD 76 29 â¢ Tempest Recovery Services, Inc. v. Belone323: In this case, the New Mexico Supreme Court expressly overruled its prior decision in General Motors Acceptance Corp. v. Chischilly324 and held that the tribal courtâs jurisdiction extended to a case involving repossession of a tribal memberâs vehicle on the tribal memberâs off-reservation allotment. In doing so the court stated: Chischilly, which is factually similar to the present case, also con- cerned the repossession of a vehicle on land included in the Â§ 1151 definition of Indian Country. In finding that Â§ 1151 defined Indian Country for criminal jurisdiction purposes only, we were unper- suaded by Chischillyâs argument that the Supreme Courtâs footnote in DeCoteau v. District County Court,Â 420 U.S. 425, 427 n.2 (1975), provided authority to extend the Â§ 1151 definition to civil jurisdiction matters. Chischilly, 96 N.M. at 115, 628 P.2d at 685. The relevant part of this footnote reads: âWhile Â§ 1151 is concerned, on its face, only with criminal jurisdiction, the [Supreme] Court has recognized that it generally applies as well to questions of civil jurisdiction.â DeCo- teau, 420 U.S. at 427 n.2. This Court held that the DeCoteau footnote was ambiguous and the cases cited as authority for it did not refer to any civil application of Â§ 1151. Chischilly, 96 N.M. at 115, 628 P.2d at 685. We were concerned about the probable confusion created by the checkerboard pattern of jurisdiction and believed it would be much more manageable if the civil jurisdiction of the tribal court were sim- ply co-extensive with the boundaries of the reservation. Chischilly, 96 N.M. at 114-15, 628 P.2d at 684-85. Because, with the exception of the footnote in DeCoteau, federal law on the subject seemed sparse, we did not feel compelled to extend the same confusing pattern of jurisdiction into the civil area. Since DeCoteau, the Supreme Court and the Tenth Circuit have consistently held that Â§ 1151 defines tribal territorial jurisdiction for both criminal and civil matters. See Okla. Tax Commân v. Chickasaw Nation,Â 515 U.S. 450, 453 (1995) (holding âOklahoma may not apply its motor fuels tax, as currently designed, to fuel sold by the Tribe in Indian countryâ);Â Mustang Prod. Co. v. Harrison, 94 F.3d 1382, 1385-86 (10th Cir. 1996) (holding that the Cheyenne-Arapaho Tribes had authority to impose a severance tax on oil and gas production occurring on allotted lands and reaffirming that such allotted lands constitute Indian Country); Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1540 (10th Cir. 1995) (âWe have consis- tently followed DeCoteau.â); Texaco, Inc. v. Zah, 5 F.3d 1374, 1377 n.3 (10th Cir. 1993) (âThis definition [of Indian Country], although found in the Major Crimes Act, applies to questions of both criminal and civil jurisdiction.â). The first explicit statement by the Supreme Court that Â§ 1151âs defi- nition of Indian Country applies to questions of civil jurisdiction is found in Alaska v. Native Village of Venetie Tribal Government,Â 522 U.S. 520, 527 (1998). In that case, the Supreme Court addressed the term âdependent Indian communitiesâ in Â§ 1151(b). Id. Although that decision did not address allotted Indian lands, it is significant to our analysis of civil jurisdiction over allotted Indian lands because of the Supreme Courtâs explicit recognition of the language from DeCo- teau where it noted: âAlthough this [Â§ 1151] definition by its terms relates only to federal criminal jurisdiction, we have recognized that it also generally applies to questions of civil jurisdiction such as the one at issue here.â Id. This Court in a criminal case has recognized, albeit in gratis dictum, the application of Â§ 1151 to civil jurisdiction determinations. See State v. Frank, 2002-NMSC-026, Â¶Â¶ 19, 23, 132 N.M. 544,Â 52 P.3d 404 (âWe adopt the two-prong test adopted in Venetie to resolve questions of 323 134 N.M. 133, 74 P.3d 67 (Filed June 10, 2003). 324 96 N. M. 113, 628 P.2d 683 (1981). n. 2, 95 S. Ct. at 1085 n. 2. The Court has reaffirmed this principle in subsequent cases. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 n. 5, 107 S. Ct. 1083, 1088 n. 5, 94 L.Ed.2d 244 (1987); Oklahoma Tax Commân v. Sac Fox Nation,  U.S. , , 113 S. Ct. 1985, 1991, 124 L.Ed.2d 30 (1993) (state could not exercise tax- ing authority over tribal members living in Indian country). We have consistently followed DeCoteau. See, e.g., Indian Country U.S.A., Inc. v. Oklahoma, 829 F.2d 967, 973 (10th Cir. 1987), cert. denied, 487 U.S. 1218, 108 S. Ct. 2870, 101 L.Ed.2d 906 (1988); Citizen Band Potawa- tomi Indian Tribe v. Oklahoma Tax Commân, 888 F.2d 1303, 1305-07 (10th Cir. 1989), affâd in part and revâd in part on other grounds, 498 U.S. 505, 111 S. Ct. 905, 112 L.Ed.2d 1112 (1991); Buzzard v. Okla- homa Tax Commân, 992 F.2d 1073, 1076 (10th Cir.), cert. denied,  U.S. , 114 S. Ct. 555, 126 L.Ed.2d 456 (1993); Texaco, 5 F.3d at 1376 n. 3; Sac Fox Nation v. Oklahoma Tax Commân, 7 F.3d 925, 926 (10th Cir. 1993).319 We conclude these precedents establish 18 U.S.C. Â§ 1151 defines Indi- an country for civil jurisdiction purposes. We hold Â§ 1151 represents an express Congressional delegation of civil authority over Indian country to the tribes. As a result, the Navajo Nation has authority to tax any mining activities taking place in Indian country without violating any express jurisdictional prohibitions.320 The courtâs footnote following the string cite above is also informative: Faced with these precedents, P & M argues the DeCoteau footnote is only dictum. DeCoteau v. District County Court, 420 U.S. 425, 427 n. 2, 95 S. Ct. 1082, 1085 n. 2, 43 L.Ed.2d 300 (1975). The subsequent Supreme Court and Tenth Circuit cases following DeCoteau simply have repeated this general statement without analysis. P M supports this contention by asserting the four cases cited in the DeCoteau footnote do not support the proposition that Â§ 1151 applies to civil cases. General Motors Acceptance Corp. v. Chischilly321, 96 N.M. 113, 628 P.2d 683, 685 (1981) (âWhile this footnote may be read to support this theory, it is ambiguous and the cases cited in support of the state- ments in the footnote do not refer to any civil application of 18 U.S.C. Â§ 1151.â); People of South Naknek v. Bristol Bay Borough, 466 F. Supp. 870, 877 n. 11 (D. Alaska 1979) (âThis dictum in a footnote does not settle the issue of the extent to which the definition of `Indian coun- tryâ in the criminal statutes applies to a question of tax jurisdiction. In addition, the authority for this proposition cited by the Court does not support it.â). We believe the principle that Â§ 1151 defines Indian country for both civil and criminal jurisdiction purposes is firmly established. Any suggestion to the contrary in General Motors and South Naknek is simply erroneous. We note, incidentally, that even if we agreed with P & M that the DeCoteau footnote were dictum, we still would likely be bound by the Courtâs rationale. â[F]ederal courts `are bound by the Supreme Courtâs considered dicta almost as firmly as by the Courtâs outright holdings, particularly when . . . [the dicta] is of recent vintage and not enfeebled by any [later] statement.ââ City of Timber Lake v. Cheyenne River Sioux Tribe, 10 F.3d 554, 557 (8th Cir. 1993) (brackets in origi- nal), cert. denied, U.S.  114 S. Ct. 2741, 129 L.Ed.2d 861 (1994) (quoting McCoy v. Massachusetts Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991), cert. denied, 504 U.S. 910, 112 S. Ct. 1939, 118 L.Ed.2d 545 (1992)).322 319 Id. at 1540. 320 Id. at 1540-1541. 321 Note that this case was expressly overruled in Tempest Recovery Services, Inc. v. Belone, 74 P.3d 67 (N.M. 2003) which is discussed later in this section. 322 Id. at 1541 n.10.
30 NCHRP LRD 76 Thus, Montanaâs main rule, which is consistent with the origins of tribal power, precludes the Community from exercising regulatory jurisdiction over the Stateâs employment practices on the right of way owned by the Stateâ¦. 333As to the issues before us, we hold that the State of Montana and its officials are outside of the regulatory reach of the Communityâs TERO for work performed on the right of way owned by the State.334 â¢ Nord v. Kelly335: In this case a tribal member brought a claim against a non-Indian in tribal court for personal injuries arising out of an accident that occurred on a state highway with- in reservation boundaries. The Eighth Circuit Court of Appeals relied on the Supreme Courtâs decision in Strate, considered the instruments granting the right-of-way pursuant to federal regu- lations and found that the documents did not indicate that the tribe had retained a right of absolute and exclusive use and oc- cupation and had not reserved regulatory or adjudicatory pow- ers to itself. The court also found that the highway was still part of the stateâs highway system and wasâas in Strateâthe equiva- lent of alienated non-Indian land for purposes of regulating the activity of nonmembers. The court further found that neither of the Montana exceptions applied and held that the tribal court lacked jurisdiction to hear the personal injury claim brought against the non-Indian. In Strate, King, and Nord each court considered how the right-of-way was created and the language in the document granting the right-of-way when determining tribal jurisdiction. It remains to be seen how the provisions relating to jurisdic- tion at 25 C.F.R. Â§Â§ 169.3-169.12 (grants of right-of-way over Indian lands), which retain jurisdiction for tribes and expressly disclaim state jurisdiction, will play into court decisions on this topic in the future.336 This is an area of law that state transporta- tion agencies should watch closely in the coming years. c. Tribal Court âExhaustion Ruleâ Most of the time if a litigant wants to challenge the ju- risdiction of a tribal court to hear a case, the litigant will need to exhaust their remedies in tribal court before they 333 King, 191 F. 3d at 1113. 334 Id. at 1115. 335 520 F.3d 848 (8th Cir. filed Apr. 4, 2008). 336 These regulations are discussed in section H.2. The regulations state that rights-of-way granted under the 25 C.F.R. Part 169 are sub- ject to federal law and tribal law that is not inconsistent with federal law and are generally not subject to the laws of the state and its polit- ical subdivisions. 25 C.F.R. Â§ 169.9. They also explain that the grant of right-of-way will clarify that it does not diminish tribal jurisdiction, taxation or enforcement authority, civil jurisdiction over nonmem- bers, or the status of the land as Indian country. 25 C.F.R. Â§ 169.10. Moreover, they provide thatâsubject only to federal lawâperma- nent improvements in the right-of-way, activities on the right-of- way, and right-of-way interest are not subject to fees, taxes, assess- ments, levies or other charges imposed by a state or its political subdivisions but may be subject to taxation by the tribe with juris- diction. 25 C.F.R. Â§ 169.11. Indian jurisdiction in civil and criminal cases.â). We now expressly overrule Chischilly, and hold that the allotted Indian lands from which Tempest repossessed Beloneâs car was Indian Country pursu- ant to Â§ 1151.Â 325Â b. Cases Addressing Tribal Jurisdiction in the Right-of- way In addition to Strate v. A-1 Contractors, previously discussed, consider the following cases involving tribal jurisdiction in the right-of-way: â¢ Montana Department of Transportation v. King326: Rely- ing on the decisions in Montana and Strate, the United States Court of Appeals for the Ninth Circuit held that the Fort Belknap Indian Community lacked jurisdiction to regulate the stateâs employment practices in performing repair work on a state highway that crossed the reservation on right-of- way owned by the state (specifically to enforce a TERO327 against Montana DOT employees).328 The state acquired the right-of-way over the Fort Belknap Indian Reservation from the United States, pursuant to 25 U.S.C. Â§Â§ 323â328, in order to construct and maintain Highway 66. As part of the trans- fer, the state became responsible for constructing and main- taining the highway pursuant to the Federal-Aid Highway Act of 1956.329 The court noted that the âcommunity con- sented to the transfer, and each individual allottee received compensation for the easementâ¦[t]he State agreed to con- struct and maintain the highway, and the highway is open to the public.â330 The court of appeals observed that Strate âheld that the tribeâs loss of the âright of absolute and exclusive use and occupationâ¦implies the loss of regulatory jurisdiction over the use of the land by othersâ¦.â331 citing its analysis in Wilson v. Marchington,332 ultimately concluding that the easement did not create a consensual relationship (the first Montana exception) between the state and tribe, stating: 325 Belone, 134 N.M. at 136-137, 74 P. 3d. at 70-71. 326 191 F.3d 1108 (9th Cir. filed Sept. 9, 1999). 327 See section L.2 for a discussion of TERO Ordinances. 328 King 191 F. 3d at 1111: To address the lack of employment opportunities, the Fort Belknap Indian Community Council enacted an affirmative action policy, called the Tribal Employment Rights Ordi- nance (âTEROâ). The TERO regulates the employee relations of covered employers through restrictions on hiring, promo- tion, transfer, and reduction in force preferences for tribal members, Native Americans who are not tribal members, and spouses of tribal members. The TEROâs affirmative action requirements include hiring quotas, special seniority rules, use of the TERO office as an employment source, man- datory advertising, and mandatory cross-cultural training. All covered employers are required by the TERO to secure a permit and pay an annual business fee of $100.00. Each employee of a covered employer is required to obtain a work permit, which costs $100.00â¦. 329 Id. at 1111. See 23 U.S.C. Â§Â§ 101 et seq. 330 Id. at 1113. 331 Id. at 1113 n.1 332 127 F.3d 805, 813 (9th Cir. 1997).
NCHRP LRD 76 31 implausible that this omission favored tribal court exhaustion stating: We are at a loss to think of any reason that Congress would have favored tribal exhaustion. Any generalized sense of comity toward non-federal courts is obviously displaced by the provisions for preemption and removal from state courts, which are thus accord- ed neither jot nor tittle of deferenceâ¦. The apparent reasons for this congressional policy of immediate access to federal forums are as much applicable to tribal- as to state-court litigation. (Emphasis added).342 d. Full Faith and Credit/Comity on Judgments343 The United States Constitution, Article IV, Section 1, pro- vides that each state shall give full faith and credit to the âpublic Acts, Records, and judicial Proceedings of every other state,â but by its terms does not provide for full faith and credit to the judgments of Indian tribes. The implementing statute, 28 U.S.C. Â§ 1738, provides that such ârecords and judicial proceedingsâ¦ shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Posses- sion from which they are taken.â Because Indian nations are not referenced in the statute, the question is whether tribes are âter- ritories or possessionsâ of the United States under the statute. The United States Court of Appeals for the Ninth Cir- cuit, in Wilson v. Marchington,344 addressed this question and whether, and under what circumstances, a tribal court tort judgment is entitled to recognition in the United States courts. The court noted that the âUnited States Supreme Court has not ruled on the precise issue and its pronounce- ments on collateral matters are inconclusive.â345 The court gave as an example, United States ex rel. Mackey v. Coxe,346 where the Supreme Court held the Cherokee Nation was a territory as that term was used in a federal letters of admin- istration statute. By contrast, it cited New York ex rel. Kopel 342 Id. at 485â86, 119 S. Ct. at 1437, 143 L. Ed. 2d at 646. 343 See generally, Canby, supra note 5, at 260-262; Deskbook, supra note 15, at 450-461; Robert N. Clinton, Comity & Colo- nialism: The Federal Courtsâ Frustration of Tribal/Federal Coop- eration, 36 ARIZ. St. L. J. 1 (2004) (hereinafter Clinton). 344 127 F.3d 805 (9th Cir. 1997). 345 Id. at 808. Cf., See Clinton, supra note 343, where Professor Clinton disagrees with the 9th Circuit and states that â[u]ntil recently the assumption that judgments of tribal courts of record were entitled to full faith and credit went unquestioned,â at 13. He goes on to point out that most of the early tribal courts of record were located in the Indian Territory and decisions of the Eighth Cir- cuit Court of Appeals covered that region, citing 8th Circuit Court decisions giving full faith and credit to tribal judgments (e.g. Stand- ley v. Roberts, 59 F.836, 845 (8th Cir. 1894), where the court noted: âjudgment of the courts of these [tribal] nations, in cases within their jurisdiction, stand on the same footing [as] those of the courts of territories of the Union and are entitled to the same full faith and credit.â Clinton also points out that the Supreme Court has given âindication that, âJudgments of tribal courts, as to matters properly within their jurisdiction, have been regarded in some cir- cumstances as entitled to full faith and credit in other courts,ââ citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 66 n.21 (1978). 346 59 U.S. 100, 103â04, 15 L. Ed. 299 (1855). can challenge jurisdiction in federal court.337 There, are, however, exceptions to this general rule. The Supreme Court described three exceptions to the exhaustion require- ment in National Farmers Union Insurance Company v. Crow Tribe:338 1. Where the assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith; 2. Where the action is patently violative of express jurisdic- tional prohibitions; or 3. Where exhaustion would be futile because of the lack of an adequate opportunity to challenge the courtâs jurisdiction. In Strate v. A-1 Contractors, previously discussed, the Su- preme Court added another exception to this list: when it is plain that the tribal court does not have jurisdiction over the nonmemberâs conduct. The Courtâs exact phrasing is as follows: When, as in this case, it is plain that no federal grant provides for tribal governance of nonmembersâ conduct on land covered byÂ Mon- tanaâs main rule, it will be equally evident that tribal courts lack ad- judicatory authority over disputes arising from such conduct. As in criminal proceedings, state or federal courts will be the only forums competent to adjudicate those disputes. SeeÂ National Farmers Union Ins. Cos.Â v.Â Crow Tribe, 471 U.S. 845, 854 (1985). Therefore, when tribal court jurisdiction over an action such as this one is challenged in federal court, the otherwise applicable exhaustion requirement, seeÂ supra,Â at 8-9, must give way, for it would serve no purpose other than delay.339 The Court later noted in Nevada v. Hicks that the factual scenario presented in Hicks (tribal court asserting jurisdiction over a state official in the performance of official duties) was an example of an instance where tribal court exhaustion was not required because it fell within the exception described in Strate since it was plain that the tribe lacked jurisdiction over the nonmemberâs conduct and exhaustion would serve no purpose other than delay.340 Finally, the U.S. Supreme Court added this narrow excep- tion to the tribal exhaustion rule in El Paso Natural Gas Co. v. Neztsosie,341 where federal law says that the claim can only be heard in federal court, exhaustion of tribal remedies is not re- quired. In El Paso Natural Gas Co., the Court held tribal exhaus- tion was not required because the claims at issue arose out of a nuclear accident and the Price-Anderson Act places jurisdiction over such accidents solely with the federal court. While the Act was silent as to removal from tribal court, the Court found it 337 National Farmers Union Ins. Co. v. Crow Tribe, 471 U.S. 845, 105 S. Ct. 2447, 85 L. Ed. 2d 813 (1985). See also, Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 10, 107 S. Ct. 971, 94 L. Ed. 2d 10 (1987). 338 Natâl Farmers, 471 U.S. at 856, n.21, 105 S. Ct. at 2453, 85 L. Ed. 2d at 828. 339 Strate v. A-1 Contractors, 520 U.S. 438, 559 n.14, 117 S. Ct. 1404, 1415, 137 L. Ed. 2d 661, 679 (1997). 340 Nevada v. Hicks, 533 U.S. 353, 369, 121 S. Ct. 2304, 2315, 150 L. Ed. 2d 398, 413 (1994). 341 526 U.S. 473, 119 S. Ct. 1430, 143 L. Ed. 2d 635 (1999).
32 NCHRP LRD 76 of Foreign Relations Law of the United States,355for the guiding principles of comity as follows: In synthesizing the traditional elements of comity with the special requirements of Indian law, we conclude that, as a general principle, federal courts should recognize and enforce tribal judgments. How- ever, federal courts must neither recognize nor enforce tribal judg- ments if: (1) the tribal court did not have both personal and subject matter jurisdiction; or (2) the defendant was not afforded due process of law. In addition, a federal court may, in its discretion, decline to recognize and enforce a tribal judgment on equitable grounds, including the following circumstances: (1) the judgment was obtained by fraud; (2) the judgment conflicts with another final judgment that is en- titled to recognition; (3) the judgment is inconsistent with the partiesâ contractual choice of forum; or (4) recognition of the judgment, or the cause of action upon which it is based, is against the public policy of the United States or the forum state in which recognition of the judgment is sought.356 In defining due process for purposes of comity the court ob- served as follows: Due process, as that term is employed in comity, encompasses most of the Hilton factors, namely that there has been opportunity for a full and fair trial before an impartial tribunal that conducts the trial upon regular proceedings after proper service or voluntary appear- ance of the defendant, and there is no showing of prejudice in the tribal court or in the system governing laws. Further, as the Restate- ment (Third) noted, evidence âthat the judiciary was dominated by the political branches of government or by an opposing litigant, or that a party was unable to obtain counsel, to secure documents or attendance of witnesses, or to have access to appeal or review, would support a conclusion that the legal system was one whose judgments are not entitled to recognition.â Restatement (Third) Â§ 482 cmt. b.357 The opinion went on to recognize, â[C]omity does not re- quire that a tribe utilize judicial procedures identical to those used in the United States Courts. [â¦] Extending comity to tribal judgments is not an invitation forâ¦unnecessary judicial paternalism in derogation of tribal self-governance.â358 Turning to the tribal court judgment under review, the court found that it was not entitled to recognition or enforcement âbe- cause the tribal court lacked subject matter jurisdiction, one of the mandatory reasons for refusing to recognize a tribal court judgment.â359 The court noted: [T]his case mirrors the facts of Strate almost precisely: it was an au- tomobile accident between two individuals on a United States high- way designed, built, and maintained by the State of Montana, with no statute or treaty authorizing the tribe to govern the conduct of 355 Restatement (Third) of Foreign Relations Law of the United States Â§ 482 (1986). 356 Wilson v. Marchington, 127 F.3d 805, 810 (9th Cir. 1997). 357 Id. at 811. 358 Id. 359 Id. at 813. v. Bingham,347 where the Supreme Court cited with approval Ex Parte Morgan,348 in which the district court held that the Cherokee Nation was not a âterritoryâ under the federal ex- tradition statute. The court in Wilson v. Marchington noted that âState courts have reached varied results, citing either Mackey or Morgan as authority.â349 Ultimately, the court was of the view that: the decisive factor in determining Congressâs intent was the enact- ment of subsequent statutes which expressly extended full faith and credit to certain tribal proceedings, believing that such âlater legisla- tive [enactments] can be regarded as a legislative interpretation of an earlier act and âis therefore entitled to great weight in resolving any ambiguities and doubts.â [citations omitted].350 The court went on to note that â[T]here are policy reasons which could support an extension of full faith and credit to In- dian tribesâ¦[which] are within the province of Congress or the states, not this Court[,] concluding that â[f]ull faith and credit is not extended to tribal judgments by the Constitution or Con- gressional act, and [declining] to extend it judicially.â351 Recognizing that âthe status of Indian tribes as âdependent domestic nationsâ presents some unique circumstances,â352 the court believed that âcomity still affords the best general analyti- cal framework for recognizing tribal judgments.â353 The court went on to cite Hilton v. Guyot354 and the Restatement (Third) 347 211 U.S. 468, 474â75, 29 S. Ct. 190, 191, 53 L. Ed. 286, 288- 289 (1909). 348 20 F. 298, 305 (W.D. Ark. 1883). 349 Wilson v. Marchington, 127 F.3d at 808 n.2 (9th Cir. 1997): Compare Jim v. CIT Fin. Serv., 87 N.M. 362, 533 P.2d 751 (N.M. 1975) (citing Mackey and holding that tribes are enti- tled to full faith and credit), and In re Buehl, 87 Wash. 2d 649, 555 P.2d 1334 (Wash. 1976) (citing CIT and concluding that tribes are entitled to full faith and credit) with Brown v. Bab- bitt Ford, Inc., 117 Ariz. 192, 571 P.2d 689 (Ariz. Ct. App. 1977) (citing Morgan and holding that an Indian reservation is not a territory for purposes of full faith and credit). 350 Id. at 808â09, citing the Indian Land Consolidation Act, 25 U.S.C. Â§Â§ 2201â2211 (1983) (extending full faith and credit for certain actions involving trust, restricted or controlled lands), the Maine Indian Claims Settlement Act, 25 U.S.C. Â§ 1725(g) (1980) (requiring the Passamaquoddy Tribe, the Penobscot Nation and the State of Maine to âgive full faith and credit to the judicial proceedings of each otherâ), and the Indian Child Welfare Act of 1978, 25 U.S.C. Â§Â§ 1901 et seq. (Extend- ing full faith and credit to tribal custody proceedings). 351 Id., at 809 n.3: See, e.g., Okla. Stat. tit. 12, Â§ 728 (permitting the Supreme Court of the State of Oklahoma to extend full faith and credit to tribal court judgments); Wis. Stat. Â§ 806.245 (granting full faith and credit to judgments of Wisconsin Indian tribal courts where certain conditions are met); Wyo. Stat. Ann. Â§ 5-1-111 (granting full faith and credit to judicial decisions of the Eastern Shoshone and Northern Arapaho Tribes of the Wind River Reservation under certain conditions). Montana has judicially refused to extend full faith and credit to tribal orders, judgments, and decrees. In re Day, 272 Mont. 170, 900 P.2d 296, 301 (Mont. 1995). 352 Id. at 810. 353 Id. 354 159 U.S. 113, 16 S. Ct. 139, 40 L. Ed. 95 (1985).
NCHRP LRD 76 33 5. Criminal Jurisdiction in Indian Country367 While jurisdictional lines regarding crimes committed in Indian country are largely settled, jurisdictional disputes on In- dian reservations often involve questions of overlapping federal, state, and tribal jurisdiction.368 The following terse comment is pertinent: Law enforcement in Indian Country is a complicated matter. On most Indian reservations federal, state, and tribal governments all have a certain amount of authority to prosecute and try criminal of- fenses. This jurisdictional maze results from a combination of Con- gressional enactment, judge-made law, and the principle of inherent tribal sovereignty. Thus a determination of who has authority to try a particular offense depends upon a multitude of factors: the magni- tude of the crime, whether the perpetrator or the victim is an Indian or a non-Indian, and whether there are any statutes ceding jurisdic- tion over certain portions of Indian Country from one sovereign to another.369 Broadly, criminal jurisdiction on Indian reservations can be understand as summarized in the tables on the following page which are reproduced from the United States Department of Justiceâs Criminal Resource Manual.370 [The remainder of this page is intentionally blank.] 367 See generally, Canby, supra note 5, at 139-254; Veronica L. Bowen, The Extent of Indian Regulatory Authority Over Non- Indian: South Dakota v. Bourland, 27 Creighton L. Rev. 605, 612â15, 631â34 (1994); Peter Fabish, The Decline of Tribal Sover- eignty: The Journey from Dicta to Dogma in Duro v. Reina, 110 S. Ct. 2053 (1990), 66 Wash. L. Rev. 567 (1991); Deskbook, supra note 15, at 229-75; Pevar, supra note 5, at 142-166. 368 State of Washington v. Schmuck, 121 Wash. 2d 373, 380; 850 P.2d 1332, 1335 (1993), citing F. Cohen, Federal Indian Law, ch. 6 (1982); Eric B. White, Falling Through the Cracks After Duro v. Reina: A Close Look at a Jurisdictional Failure, 15 Univ. of Puget Sound L. Rev. 229, 230â35 (1991). 369 T. Vollmann, Criminal Jurisdiction in Indian Country: Tribal Sovereignty and Defendantsâ Rights in Conflict, 22 U. Kan. L. Rev. 387 (1974). 370 U. S Department of Justice, Justice Manual, Â§ 689, avail- able at: https://www.justice.gov/usam/criminal-resource-manual- 689- jurisdictional-summary (Updated September 2018). nonmembers on the highwayâ¦360 Thus, although the parameters of the Strate holding are not fully defined, its application to the specific circumstances of this case precludes tribal court jurisdiction.361 The opinion concludes: The principles of comity require that a tribal court have competent jurisdiction before its judgment will be recognized by the United States courts. Because the tribal court did not have subject matter ju- risdiction over Marchington or Inland Empire Shows, Inc., Wilsonâs judgment may neither be recognized nor enforced in the United States courts.362 Marchington urged the court to require reciprocal recog- nition of judgments as an additional mandatory prerequisite, but the court declined to do so, noting that â[t]he question of whether a reciprocity requirement ought to be imposed on an Indian tribe before its judgments may be recognized is essentially a public policy question best left to the execu- tive and legislative branchesâ¦[t]he fact that some states have chosen to impose such a condition by statute reinforces this conclusionâ¦.â363 Subsequent to Marchington, the Ninth Circuit, in Bird v. Glacier Electric Coop.,364 addressed the issue of whether the dis- trict court could give comity to a tribal court judgment where the closing argument of the successful plaintiff in tribal court included statements encouraging ethnic and racial bias by an all-tribal-member jury against a corporate defendant that was owned and controlled by nonmembers. The court concluded âthat the district court erred in giving comity to recognize and enforce the tribal court judgmentâ¦365 because, in view of the closing argument the tribal court proceedings offended due process.â366 When determining whether a tribal court order is entitled to full faith and credit, practitioners should review case law in their jurisdiction as well as state statutes and court rules to determine requirements and factors specific to their jurisdiction. 360 Id. at 814. 361 Id. at 815. 362 Id. 363 Id. at 812. See 812 n.6: See, e.g., S.D. Codified Laws Â§ 1- 1-25(2)(b) (permitting South Dakota courts to recognize a tribal judgment if the courts of that tribe recognize the orders and judgments of the South Dakota courts); Okla. Stat. tit. 12, Â§ 728(B) (allowing the Supreme Court of Oklahoma to recognize tribal court judgments where the tribal courts agree to grant reciprocity of judgment); Wis. Stat. Â§ 806.245(l)(e) (granting full faith and credit to judgments if, inter alia, the tribe grants full faith and credit to the judgments of Wisconsin courts); Wyo. Stat. Ann. Â§ 5-1-111(a)(iv) (granting full faith and credit to the Eastern Shoshone and Northern Arapaho Tribes if, inter alia, the tribal court certifies that it grants full faith and credit to the orders of judgments of Wyoming). 364 255 F.3d 1136 (9th Cir. filed July 10, 2000). 365 Id. at 1138. 366 Id. at 1152.
34 NCHRP LRD 76 Where jurisdiction has not been conferred on the state Offender Victim Jurisdiction Non-Indian Non-Indian State jurisdiction is exclusive of federal and tribal jurisdiction. Non-Indian Indian Federal jurisdiction under 18 U.S.C. Â§Â 1152 is exclusive of state and tribal jurisdiction. Indian Non-Indian If listed in 18 U.S.C. Â§Â 1153, there is federal jurisdiction, exclusive of the state, but probably not of the tribe. If the listed offense is not otherwise defined and punished by federal law applicable in the special maritime and territorial jurisdiction of the United States, state law is assimilated. If not listed in 18 U.S.C. Â§Â 1153, there is federal jurisdiction, exclusive of the state, but not of the tribe, under 18 U.S.C. Â§Â 1152. If the offense is not defined and punished by a statute applicable within the special maritime and territorial jurisdiction of the United States, state law is assimilated under 18 U.S.C. Â§Â 13. Indian Indian If the offense is listed in 18 U.S.C. Â§Â 1153, there is federal jurisdiction, exclusive of the state, but probably not of the tribe. If the listed offense is not otherwise defined and punished by federal law applicable in the special maritime and territorial jurisdiction of the United States, state law is assimilated. See section 1153(b). If not listed in 18 U.S.C. Â§Â 1153, tribal jurisdiction is exclusive. Non-Indian Victimless State jurisdiction is exclusive, although federal jurisdiction may attach if an impact on individual Indian or tribal interest is clear. Indian Victimless There may be both federal and tribal jurisdiction. Under the Indian Gaming Regulatory Act, all state gaming laws, regulatory as well as criminal, are assimilated into federal law and exclusive jurisdiction is vested in the United States. Where jurisdiction has been conferred by Public Law 280, 18 U.S.C. Â§ 1162 Offender Victim Jurisdiction Non-Indian Non-Indian State jurisdiction is exclusive of federal and tribal jurisdiction. Non-Indian Indian âMandatoryâ state has jurisdiction exclusive of federal and tribal jurisdiction. âOptionâ state and federal government have jurisdiction. There is no tribal jurisdiction. Indian Non-Indian âMandatoryâ state has jurisdiction exclusive of federal government but not necessarily of the tribe. âOptionâ state has concurrent jurisdiction with the federal courts. Indian Indian âMandatoryâ state has jurisdiction exclusive of federal government but not necessarily of the tribe. âOptionâ state has concurrent jurisdiction with tribal courts for all offenses, and concurrent jurisdiction with the federal courts for those listed in 18 U.S.C. Â§Â 1153. Non-Indian Victimless State jurisdiction is exclusive, although federal jurisdiction may attach in an option state if impact on individual Indian or tribal interest is clear. Indian Victimless There may be concurrent state, tribal, and in an option state, federal jurisdiction. There is no state regulatory jurisdiction. Where jurisdiction has been conferred by another statute Offender Victim Jurisdiction Non-Indian Non-Indian State jurisdiction is exclusive of federal and tribal jurisdiction. Non-Indian Indian Unless otherwise expressly provided, there is concurrent federal and state jurisdiction exclusive of tribal jurisdiction. Indian Non-Indian Unless otherwise expressly provided, state has concurrent jurisdiction with federal and tribal courts. Indian Indian State has concurrent jurisdiction with tribal courts for all offenses, and concurrent jurisdiction with the federal courts for those listed in 18 U.S.C. Â§Â 1153. Non-Indian Victimless State jurisdiction is exclusive, although federal jurisdiction may attach if impact on individual Indian or tribal interest is clear. Indian Victimless There may be concurrent state, federal and tribal jurisdiction. There is no state regulatory jurisdiction.
NCHRP LRD 76 35 The Wisconsin Court, while noting that it found a tradition of traffic regulation by the Menominee Tribe in an earlier case, found that the Lac du Flambeau Band had no motor vehicle code in effect at the time of the offense, and therefore no tradi- tion of self-government in this area. In balancing the federal, state, and tribal interest, the court found that the state had a dominant interest in regulating traffic on Highway 47 for both Indians and other users of public highways. â¢ In Confederated Tribes of the Colville Reservation v. Washington,379 the tribe sought to prohibit the State of Washington from enforcing its traffic laws on public roads within the tribeâs reservation. In 1979, the state legislature âdecriminalizedâ several traffic offenses, including speed- ing, and designated each a âtraffic infraction,â which âmay not be classified as a criminal offense.â380 The Washington State courts, in other cases, had found a traffic infraction not to be a felony or misdemeanor.381 The Ninth Circuit Court of Appeals noted that while âspeeding remains against the stateâs public policy, Cabazon teaches that this is the wrong inquiry [that] Cabazon focuses on whether the prohibited activity is a small subset or facet of a larger, permitted ac- tivityâ¦ or whether all but a small subset of a basic activity is prohibited.â382 The Ninth Circuit went on to opine that âspeeding is but an extension of drivingâthe permitted activityâwhich occasionally is incident to the operation of a motor vehicle,â concluding that âRCW Ch. 46.63 should be characterized as a civil, regulatory lawâ¦[which] the state may not assertâ¦over tribal members on the Colville reservation.â 383 Noteworthy are these comments by the court relative to tribal traffic codes: Indian sovereignty and the stateâs interest in discouraging speeding are both served by our decision here: the Tribes have enacted a traf- fic code, employ trained police officers, and maintain tribal courts staffed by qualified personnel to deal with criminal traffic viola- tions. The Tribes are willing and able to enforce their own traffic laws against speeding drivers and even to commission Washington state patrol officers to assist them.384 â¢ St. Germaine v. Circuit Court for Vilas County,Wis.385: A habeas corpus proceeding was held following the conviction in state court of St. Germaine, an enrolled member of the Lac du Flambeau Band of Lake Superior Chippewa Indians, for oper- ating his motor vehicle on a state highway within the reserva- tion after his driverâs license had been revoked for the fourth time. The fourth conviction carried a mandatory minimum jail sentence of 60 days as well as a minimum fine of $1,500.386 St. Germaine challenged Wisconsinâs jurisdiction under Public 379 938 F.2d 146 (9th Cir. filed July 5, 1991). 380 Wash. Rev. Code Â§ 46.63.020. 381 Confederated Tribes of the Colville Reservation, 938 F.2d at 148. 382 Id. at 148-149. 383 Id. at 149 384 Id. 385 938 F.2d 75 (7th Cir. 1991). 386 Wis. Stat. Â§ 343.44(1)-(2). Note that a tribeâs criminal jurisdiction extends to both member Indians and nonmember Indians.371 As discussed in the section on State Civil Jurisdiction (see section C.3), determining whether a law is a civil-regulatory law or a criminal-prohibitory law is an important step in answer- ing jurisdictional questions in Public Law 280 states. Recall that Public Law 280 provides certain states criminal jurisdiction in Indian country, as well as jurisdiction over civil causes of action to which Indians are parties arising in Indian country, but that Public Law 280 does not grant states civil regulatory jurisdic- tion.372 [I]f the intent of a state law is generally to prohibit certain conduct, it falls within Public Law 280âs grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory and Public Law 280 does not authorize its enforcement on an Indian reservation. The shorthand test is whether the conduct at issue violates the stateâs public policy.373 With this background in mind, the following sections will discuss various criminal court cases arising in Indian country that may be of interest to transportation professionals. a. State Traffic and Motor Vehicle Statutes The following cases address enforcement of state traffic or motor vehicle statute on reservations: â¢ In County of Vilas v. Chapman,374 the Supreme Court of Wisconsin relied on the analysis and principles established in Rice v. Rehner375 in holding that Vilas County, Wisconsin, had jurisdiction to enforce a noncriminal traffic ordinance against a member of the Lac du Flambeau Band of Lake Superior Chippe- wa Indians for an offense occurring on a public highway within the boundaries of a reservation. The State Supreme Court went through a three-step process as outlined in Rice: 1. Deciding whether the tribe had a tradition of tribal self- government in the area of traffic regulation on Highway 47 within the reservation;376 2. Evaluating the balance of federal, state, and tribal interest in the regulation of Highway No. 47;377 and 3. Determining whether the federal government had pre- empted state jurisdiction to regulate Highway 47 within the Lac du Flambeau Reservation.378 371 See e.g. United States v. Lara, 541 U.S. 193, 124 S. Ct. 1628, 1651, 158 L. Ed. 2d 420, 449 (2004). 372 See 18 U.S.C. Â§ 1162; 28 U.S.C. Â§ 1360. Bryan v. Itasca County, 426 U.S. 373, 96 S. Ct. 2102, 48 L. Ed. 2d 710 (1976). See Three Affiliated Tribes v. Wold Engineering, 476 U.S. 877, 106 S. Ct. 2305, 90 L. Ed. 2d 881 (1986); Camenout v. Burdman, 84 Wn 2d 192, 525 P.2d 217 (Wash. 1974). Cf. Kennerly v. District Court, 400 U.S. 423, 91 S. Ct. 480, 27 L. Ed. 2d 507 (1971).] 373 Cal. v. Cabazon Band of Mission Indians, 480 U.S. 202, 209, 107 S. Ct. 1083, 1089, 94 L. Ed. 2d 244, 255(1987). 374 122 Wis. 2d 211, 361 N.W.2d 699 (Wis. 1985). 375 463 U.S. 713, 103 S. Ct. 3291, 77 L. Ed. 2d 961 (1983). 376 Chapman, 122 Wis. 2d at 216, 361 N.W.2d at 702. 377 Id. at 216-217, 361 N.W.2d at 702. 378 Id. at 217 at 361 N.W.2d at 702â03.
36 NCHRP LRD 76 test,â391 applying the test to hold that âdriving is generally per- mitted, subject to regulation [and] clearly does not violate the public criminal policy of the stateâ¦[finding] no need to apply the shorthand public policy test.â392 The court found that âeach of the laws involvedâ¦is civil/regulatory and the state lacks juris- diction under Public Law 280 to enforce them against members of the [tribe].â393 â¢ State of Minnesota v. Couture394: The issue presented was whether Couture, an Indian resident of the Fond du Lac Res- ervation, could be charged with aggravated driving on the reservation while under the influence of alcohol in violation of Minn. Stat. Â§ 169.129 (1996). The court, following the two- step approach of Stone, and relying on its decision in State v. Zornes,395 held that the statute is a criminal/prohibitory law for which Couture could be charged under Public Law 280.396 â¢ State of Minnesota v. Busse397: Busse was charged with a gross misdemeanor for driving after cancellation of his Min- nesota driverâs license as inimical to public safety under Minn. Stat. Â§ 171.04, subd. 1 (9) (1998). His driverâs license had been cancelled following four separate convictions for driving under the influence. Busseâs conviction in state district court was re- versed by the state court of appeals, which held that the charged offense was civil/regulatory, concluding that consideration of the offense that triggered the cancellation was inappropriate, and therefore driving after cancellation as inimical to pub- lic safety was no different than driving after revocation based on failure to show proof of insurance in State v. Johnson, 598 N.W.2d 680 (Minn. 1999).398 The Minnesota Supreme Court disagreed, concluding that âlooking at the underlying basis for a license revocation or, in this case, cancellation, is not prohib- ited when determining whether the offense involves heightened public policy concernsâ¦. Accordingly, our focus remains on whether the specific offense reflects heightened public policy concerns.â399 The court concluded: In sum, the criminal sanction imposed, the direct threat to physical harm, the need for the state to be able to enforce cancellations based on a threat to public safety, and the absence of exceptions to the of- fense of driving after cancellation based on being inimical to public safety all demonstrate heightened public policy concernsâ¦. Thus, the conduct at issueâ¦is generally prohibited conduct and under our Ca- bazon/Stone analysis the offense is criminal/prohibitoryâ¦[and] Min- nesota courts have subject matter jurisdictionâ¦.â400 391 Id. at 731. 392 Id. 393 Id. 394 587 N.W.2d 849 (Minn. App. filed Jan. 12, 1999). 395 State v. Zornes, 584 N.W.2d 7 (Minn. App. filed Sept. 22, 1998), held that âdriving while intoxicated gives rise to heightened policy concernsâ . . . âthe states interest in enforcing its DWI laws presents policy concerns sufficiently different from general road safety.â Id. at 11. 396 Couture, 587 N.W.2d at 854. 397 644 N.W.2d 79 (Minn. App. filed May 16, 2002). 398 Id. at 80â82. 399 Id. at 84. 400 Id. at 87-88. Law 280 to enforce its traffic laws on the reservation. The court, in upholding the dismissal of the writ of habeas corpus, relied on the âshorthand testâ of Cabazon to determine whether the conduct at issue violated the stateâs public policy: The State of Wisconsin seeks to protect the lives and property of high- way users from all incompetent, incapacitated, and dangerous drivers anywhere on its highways on a reservation or off. A clear and man- datory criminal penalty is imposed to enforce its prohibition. This is public policy enforcement of high order. The stateâs public policy in enforcing this criminal penalty and deterring dangerous drivers does no violence to any tribal vehicle regulation which the tribe en- forcesâ¦. Congress has made it plain that Wisconsin can enforce its criminal laws on reservations. That is all Wisconsin is doing.387 â¢ State of Minnesota v. Stone388: Members of the White Earth Band of Chippewa Indians were cited for the following viola- tions of Minnesotaâs traffic and driving-related laws: no motor vehicle insurance and no proof of insurance; driving with an expired registration; driving without a license; driving with an expired license; speeding; no seat belt; and failure to have child in child-restraint seat. The district court dismissed these charges for lack of jurisdiction under Public Law 280 because the traf- fic and driving-related laws at issue were civil/regulatory rather than criminal/prohibitory. The Minnesota Supreme Court af- firmed389 and adopted a two-step approach to applying the Ca- bazon test for Minnesota courts: The first step is to determine the focus of the Cabazon analysis. The broad conduct will be the focus of the test unless the narrow conduct presents substantially different or heightened public policy concerns. If this is the case, the narrow conduct must be analyzed apart from the broad conduct. After identifying the focus of the Cabazon test, the second step is to apply it. If the conduct is generally permitted, subject to exceptions, then the law controlling the conduct is civil/ regulatory. If the conduct is generally prohibited, the law is criminal/ prohibitory. In making this distinction in close cases, we are aided by Cabazonâs âshorthand public policy test,â which provides that conduct is criminal if it violates the stateâs public policyâ¦we interpret âpublic policy,â as used in the Cabazon test, to mean public criminal policyâ¦ [which] seeks to protect society from serious breaches in the social fabric which threaten grave harm to persons or property.390 The Minnesota Supreme Court went on to determine that âthe broad conduct of driving is the proper focus of the Cabazon 387 St. Germaine, 938 F.2d at 77â78. 388 572 N.W.2d 725 (Minn. filed Dec. 11, 1997). However, note that the Minnesota Supreme Court held that certain civil- regulatory traffic offenses were enforceable against non-member Indians in both State v. R.M.H., 617 N.W.2d 55 (Minn. filed Aug. 25, 2000) and State of Minn. v. Davis, 773 N.W.2d 66 (Minn. filed Sept. 10, 2009). 389 Id. at 727. 390 Id. at 730. The state high court found the following factors to be useful in determining whether an activity violates the stateâs pub- lic policy in a nature serious enough to be considered âcriminal.â: (1) the extent to which the activity directly threatens physical harm to persons or property or invades the rights of others; (2) the extent to which the law allows for exceptions and exemptions; (3) the blameworthiness of the actor; (4) the nature and severity of the potential penalties for violation of the law. The list is not meant to be exhaustive, and no single factor is dispositive.
NCHRP LRD 76 37 Supreme Court held that the arrest was illegal because it violated tribal sovereignty by circumventing the procedure for extradition from the Navajo Reservationâ¦. This holding was based on well- established law that Indian tribes have the right to self-govern- ment that may not be impaired or interfered with by the state, absent congressional approval. 89 N.M. at 465-66, 553 P.2d at 1272-73. (citations omitted).407 â¢ In United States v. Patch,408 the Ninth Circuit affirmed a decision to convict and fine the defendant, a member of the Colorado River Indian Tribe (CRIT), for simple assault in violation of 18 U.S.C. Â§ 113(a)(5). The issue was whether the assault victim, Michael Schwab, a La Paz County, Ari- zona, deputy sheriff, had the authority to stop vehicles on the state highway to determine his jurisdiction to issue a cita- tion. While patrolling State Highway 95 in Indian country, Schwabâs patrol car was âtailgatedâ by Patch. Schwab attempt- ed to stop him but had to pursue him to determine whether he was a tribal member. Under county procedures, once Schwab knew that Patch was a tribal member, he was supposed to no- tify the tribal police who had jurisdiction. The pursuit ended at Patchâs sisterâs house, where Schwab followed Patch onto the porch and attempted to detain him; during the attempt to detain Patch, Schwab was assaulted by Patch. Patchâs convic- tion for assault rested on whether Schwab was acting within his official duties when he grabbed Patch by the arm on the porch.409 The court stated: Arizona State Highway 95 at issue here crosses the CRIT reserva- tion and is subject to overlapping jurisdiction. Offenses commit- ted in Indian country can be subject to federal, state, or tribal juris- diction depending on the severity of the crime and on whether the offender and/or victim are tribal members. Duro v. Reina [citation omitted]. On this section of road, Arizona police have authority to arrest non-Indians for traffic violationsâ¦but they do not have au- thority to arrest tribal members. [citations omitted]. As a practical matter, without a stop and inquiry, it is impossible to know who was driving the pickup truck. The question therefore is whether Schwab had the authority to stop offending vehicles to determine whether he had authority to arrestâ¦. We hold that the attempted stop in this case was valid as a logical application of [Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1967)] . . . Schwab had the authority under Terry to stop vehicles on State Highway 95 to determine his jurisdiction to issue a citationâ¦.410 Concerning the issue of hot pursuit, the Court observed: Under the doctrine of hot pursuit a police officer who observes a traf- fic violation within his jurisdiction to arrest may pursue the offender into Indian country to make the arrestâ¦Schwab was justified in fol- lowing Patch to a place where he could effect a stop, in this case the private porch of a residence in Indian country.411 â¢ State of Washington v. Waters412 involved civil traffic in- fractions in West Omak, Washington, across the river from East Omak, which is on the Colville Indian Reservation. 407 Benally, 89 N.M. at 497, 892 P.2d at 630.; see Williams v. Lee, 358 U.S. 217, 79 S. Ct. 269, 3 L. Ed. 2d 251, (1959). 408 114 F.3d 131 (9th Cir. filed May 29, 1997). 409 Id. at 132â33 410 Id. at 133â34. 411 Id. at 134. 412 93 Wash. App. 969; 971 P.2d 538 (Filed Feb.11,1999). b. Hot Pursuit, Stop and Detain, and Arrest A significant challenge facing tribal police officers and state/ local police officers is how to determine jurisdiction to issue a citation or make an arrest when a violation is observed. The de- cisions in the following cases reflect how various courts have dealt with the issues of âhot pursuit,â âstop and detain,â and âarrest.â â¢ In State of Washington v. Schmuck,401 the issue was whether an Indian tribal officer had the authority to stop and detain a non-Indian who allegedly violated state and tribal law while traveling on a public road within a reservation until that per- son could be turned over to state authorities for charging and prosecution. Schmuck was found guilty of driving while intoxi- cated on the Port Madison Reservation after being detained by a Suquamish tribal officer and turned over to the Washington State Patrol. The Supreme Court of Washington affirmed the conviction, and in upholding the tribal officerâs stop and deten- tion, observed: Thus, twice the Supreme Court has stated that a tribeâs proper re- sponse to a crime committed by a non-Indian on the reservation is for the tribal police to detain the offender and deliver him or her to the proper authorities. This is precisely what Tribal Officer Bailey did: he detained Schmuck and promptly delivered him up in accordance with Oliphantâs and Duroâs directiveâ¦.402 In additionâ¦the Ninth Cir- cuit has squarely addressed the issue of tribal authority to detain a non-Indian in a case directly on point. Ortiz-Barraza v. United States, 512 F.2d 1176 (9th Cir.1975). The Ninth Circuit held that an Indian tribe has inherent authority to stop and detain a non-Indian allegedly violating state or federal law on public roads running through the reservation until the non-Indian can be turned over to appropriate authorities.403 â¢ In City of Farmington v. Benally,404 a city police officer ob- served a vehicle weaving in its lane, repeatedly crossing the cen- ter divider, and speeding within the city limits. He attempted to stop the vehicle, but it sped off. A high-speed chase ensued, during which other traffic violations were observed by the offi- cer. The vehicle was finally pulled over when it was almost three miles within the boundaries of the Navajo Reservation. Defen- dant Benally was identified as an enrolled member of the Navajo Nation. The officer observed that Benally smelled of alcohol and had slurred speech and bloodshot, watery eyes. The officer ar- rested him, transported him to Farmington City police station, and charged him with a number of offenses, including driving under the influence of intoxicating liquor and/or drugs. He was convicted by a magistrate court.405 The district courtâs dismissal was affirmed by the appeals court, relying on the New Mexico Supreme Court decision in Benally v. Marcum:406 The district court relied on Benallyâ¦where under nearly identical facts, a member of the Navajo Tribe was pursued onto the reser- vation and arrested for violation of city traffic ordinancesâ¦. Our 401 121 Wash. 2d 373, 850 P.2d 1332 (Filed May 6, 1993). 402 Id. at 387-388, 850 P.2d at 1339-1340. 403 Id. 404 119 N.M. 496, 892 P.2d 629 (Filed Feb. 20, 1995). 405 Id. at 497, 892 P.2d at 630. 406 89 N.M. 463, 553 P.2d 1270 (1976).