Tribal Jurisdiction over Nonmembers:
A Legal Overview
Jane M. Smith
Legislative Attorney
November 26, 2013
Congressional Research Service
7-5700
www.crs.gov
R43324
Tribal Jurisdiction over Nonmembers: A Legal Overview
Summary
Indian tribes are quasi-sovereign entities that enjoy all the sovereign powers that are not divested
by Congress or inconsistent with the tribes’ dependence on the United States. As a general rule,
this means that Indian tribes cannot exercise criminal or civil jurisdiction over nonmembers.
There are two exceptions to this rule for criminal jurisdiction. First, tribes may exercise criminal
jurisdiction over nonmember Indians. Second, tribes may try non-Indians who commit dating and
domestic violence crimes against Indians within the tribes’ jurisdictions provided the non-Indians
have sufficient ties to the tribes. There are three exceptions to this rule for civil jurisdiction. First,
tribes may exercise jurisdiction over nonmembers who enter consensual relationships with the
tribe or its members. Second, tribes may exercise jurisdiction over nonmembers within a
reservation when the nonmember’s conduct threatens or has some direct effect on the political
integrity, the economic security, or the health or welfare of the tribe. These first two exceptions,
enunciated in the case of Montana v. United States, are based on the tribes’ inherent sovereignty,
and exercises of jurisdiction under them must relate to a tribe’s right to self-government. Third,
Indian tribes may exercise jurisdiction over nonmembers when Congress authorizes them to do
so. Congress may delegate federal authority to the tribes, or re-vest the tribes with inherent
sovereign authority that they had lost previously. Indian tribes may also exercise jurisdiction over
nonmembers under their power to exclude persons from tribal property. However, it is not clear
whether the power to exclude is independent of the Montana exceptions.
The question of a tribe’s jurisdiction over nonmembers can be very complex. It is fair to say,
however, that tribal jurisdiction over non-Indians is quite limited. Tribal jurisdiction over
nonmember Indians is more extensive. Federal courts, however, consistently require nonmember
defendants to challenge tribal court jurisdiction in tribal court before pursuing relief in federal
court.
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Tribal Jurisdiction over Nonmembers: A Legal Overview
Contents
Introduction ...................................................................................................................................... 1
Criminal Jurisdiction ....................................................................................................................... 2
Over Non-Indians ...................................................................................................................... 2
Over Nonmember Indians ......................................................................................................... 4
Civil Jurisdiction .............................................................................................................................. 5
The Montana Exceptions ........................................................................................................... 6
Consensual Relationships .................................................................................................... 6
Threat to the Tribe’s Integrity .............................................................................................. 8
The Power to Exclude ............................................................................................................. 10
Statutory Exceptions ................................................................................................................ 11
Nonmembers Must First Challenge Tribal Court Jurisdiction in Tribal Court ........................ 12
Conclusion ..................................................................................................................................... 12
Contacts
Author Contact Information........................................................................................................... 13
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Tribal Jurisdiction over Nonmembers: A Legal Overview
Introduction
Originally, Indian tribes exercised sovereign authority over their territory and the all people
within it, including non-Indians.1 However, Indian tribes lost some of that authority by “ceding
their lands to the United States and announcing their dependence on the Federal Government.”2
“Indian tribes are prohibited from exercising both those powers of autonomous states that are
expressly terminated by Congress and those powers inconsistent with their status.”3 Express
termination of a tribe’s sovereign authority may be found in treaties and statutes. As to sovereign
authority lost by virtue of the tribes’ status, the Supreme Court has explained, “[t]he areas in
which such implicit divestiture of sovereignty has been held to have occurred are those involving
the relations between an Indian tribe and non-members of the tribe.”4 By virtue of their
“dependent status,” therefore, tribes have lost the sovereign authority to determine their relations
with nonmembers.5 Accordingly, in Oliphant v. Suquamish, the Supreme Court held that Indian
tribes do not have inherent sovereign authority to try non-Indian criminal defendants,6 and in
Montana v. United States, the Supreme Court announced the general rule for civil jurisdiction that
“the inherent sovereign powers of an Indian tribe do not extend to the activities of non-members
of the tribe.”7
Immediately after announcing this rule for civil jurisdiction in Montana, however, the Court
identified two exceptions, known as the Montana exceptions:
To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil
jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe
may regulate, through taxation, licensing, or other means, the activities of non-members who
enter consensual relationships with the tribe or its members, through commercial dealing,
contracts, leases, or other arrangements. A tribe may also retain inherent power to exercise
civil authority over the conduct of non-Indians on fee land within its reservation when that
conduct threatens or has some direct effect on the political integrity, the economic security,
or the health or welfare of the tribe.8
In order to fit within one of these exceptions, nonmember conduct must somehow impinge on a
tribe’s inherent authority to govern itself and its members.9
The Supreme Court has identified the tribes’ right as landowners to exclude nonmembers from
tribal land as one of the bases for upholding tribal taxes against nonmembers’ activities on tribal
1 See Duro v. Reina, 495 U.S. 676, 685 (1990) (“A basic attribute of full territorial sovereignty is the power to enforce
laws against all who come within the sovereign’s territory, whether citizens or aliens. Oliphant [v. Suquamish]
recognized that tribes can no longer be described as sovereigns in this sense.”).
2 Oliphant v. Suquamish, 435 U.S. 191, 208 (1978).
3 Id. (emphasis in original; internal quotations omitted).
4 United States v. Wheeler, 435 U.S. 313, 326 (1978).
5 Id. This is not an absolute rule. This report discusses the limited exceptions to it at pages 4-10.
6 435 U.S. 191 (1978).
7 450 U.S. 544, 565 (1981). In Montana, the Court considered whether the Tribe had jurisdiction to enforce its hunting
regulations against nonmembers hunting on non-Indian fee land located within the Tribe’s reservation.
8 Id. at 565-566.
9 Nevada v. Hicks, 533 U.S., 353, 361 (2001) (“Tribal assertion of regulatory authority over non-members must be
connected to that right of the Indians to make their own laws and be governed by them.”).
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land.10 It is unclear, however whether the power to exclude is independent of the Montana
exceptions.11
Tribes may also exercise jurisdiction over nonmembers when Congress authorizes them to do so.
Congress has provided for tribal authority over nonmembers related to the sale of alcohol on
reservations, enforcement of tribal hunting and fishing ordinances on reservations, and
enforcement of certain environmental statutes.
Although tribal jurisdiction over nonmembers is fairly limited, if a nonmember defendant in tribal
court believes the court lacks jurisdiction, he or she must first challenge the jurisdiction in tribal
court.12 Only after exhausting the tribal court remedies may the nonmember get relief in federal
court.
Criminal Jurisdiction
In most cases, tribal criminal jurisdiction over non-Indian offenders is clear—as a general rule,
Indian tribes do not have it. However, there is an exception for tribes to exercise criminal
jurisdiction over non-Indians who commit dating and domestic violence against Indians within a
tribe’s jurisdiction, provided the non-Indian has sufficient ties to the tribe and the tribe provides
certain rights.
Tribal criminal jurisdiction over nonmember Indians is more difficult to discern. Such jurisdiction
depends on whether the nonmember Indian is recognized as an Indian by the federal government
or the tribal community. This determination turns on factors such as enrollment in a tribe; the
degree to which the nonmember Indian has received federal services and benefits for Indians;
benefited from tribal rights or services; and participated in tribal ceremonies and social life.
Over Non-Indians
In Oliphant v. Suquamish Indian Tribe, the Court held that tribes lack inherent sovereign authority
over non-Indian offenders.13 The Court first analyzed the history of criminal jurisdiction over
non-Indians within Indian country through treaty provisions, executive branch activities and
opinions, and lower court opinions, and concluded that historically the legislative and executive
branches and lower courts presumed that Indian tribes did not have authority over non-Indians
who committed offenses within Indian country.14 Although the Court wrote that this history was
not “conclusive,” it determined that it “carries considerable weight.”15 Accordingly, the Court
read the Suquamish Tribe’s (Tribe’s) treaty with the United States in light of the historical
presumption against tribal jurisdiction over non-Indian offenders.16 The Court acknowledged that
10 Merrion v. Jicarrilla Apache Tribe, 455 U.S. 130 (1982).
11 Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001).
12 Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987); National Farmers Union Insurance Cos. v. Crow Tribe of
Indians, 471 U.S. 845 (1985).
13 435 U.S. 191 (1978).
14 Id. at 196-206.
15 Id. at 206.
16 Id. at 207.
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on its own, the treaty probably would not divest the Tribe of criminal jurisdiction over non-Indian
offenders if it otherwise retained that authority.17 However, the Court determined that Tribe did
not retain the authority to try non-Indian offenders.
The Court cited two reasons to support its determination that Indian tribes did not possess the
inherent authority to try non-Indian offenders. First, the Court wrote, “Indian tribes are prohibited
from exercising those powers of autonomous states that are expressly terminated by Congress and
those powers inconsistent with their status.”18 The Court identified some of the restrictions
imposed on the tribes’ sovereignty by virtue of their incorporation into the United States as loss of
“the tribes’ power to transfer lands [and] exercise external political sovereignty.”19 In addition,
quoting Justice Johnson’s opinion from the first Indian case to reach the Supreme Court, the
Court wrote, “‘[T]he restrictions upon the soil in the Indians, amount … to an exclusion of all
competitors [to the United States] from their markets; and the limitation upon their sovereignty
amounts to the right of governing every person within their limits except themselves.’”20 Noting
that protection of its territory within its boundaries is “central” to the sovereign interests of the
United States, the Court wrote that “the United States has manifested an equally great solicitude
that its citizens be protected by the United States from unwarranted intrusions on their personal
liberty.”21 The power to try and punish individuals “is an important manifestation of the power to
restrict personal liberty.”22 The Court concluded, “By submitting to the overriding sovereignty of
the United States, Indian tribes therefore necessarily give up their power to try non-Indian
citizens of the United States except in a manner acceptable to Congress.”23
The second reason the Court gave for determining that Indian tribes did not retain inherent
authority to try non-Indian offenders was related to the Court’s precedent. In Ex Parte Crow
Dog,24 the Supreme Court held that federal courts lacked jurisdiction to try an Indian who had
committed an offense against another Indian on reservation land. In that case, the Court looked to
the “nature and circumstances of the case” and concluded that the United States was seeking to
extend
law, by argument and inference only, … over aliens and strangers; over the members of a
community separated by race [and] tradition, … from the authority and power which seeks to
impose upon them the restraints of an external and unknown code …; which judges them by
a standard made by others and not for them…. It tries them, not by their peers, nor by the
customs of their people, nor the law of their land, by … a different race, according to the law
of a social state of which they have an imperfect conception….25
The Court wrote that the same considerations applied to subjecting non-Indian offenders to the
laws of Indian tribes and contradicted the notion that, although the tribes are “fully subordinated
17 Id.
18 Id. at 208 (internal quotation marks and citation omitted; emphasis in original).
19 Id. at 209.
20 Id. quoting Fletcher v. Peck, 6 Cranch. 87, 147 (1810) (alterations and emphasis in original).
21 Id. at 210.
22 Id.
23 Id.
24 109 U.S. 556 (1883).
25 Oliphant, 435 U.S. at 210-211, quoting Ex Parte Crow Dog, 109 U.S. at 572 (alterations in original).
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to the sovereignty of the United States, [they] retain the power to try non-Indians according to
their own customs and procedures.”26
Although the Court recognized that some Indian judicial systems had become “increasingly
sophisticated” and in many respects resemble state court systems; that the Indian Civil Rights Act
had extended certain basic procedural rights to anyone tried in tribal court so that many of the
dangers for non-Indians that existed a few decades ago have disappeared; and that there is a
prevalence of non-Indian crime on Indian reservations, the Court wrote that those factors should
be addressed to Congress for it to “weigh in deciding whether Indian tribes should finally be
authorized to try non-Indians.”27
Congress authorized tribes to try non-Indians who commit dating and domestic violence in the
Violence Against Women Act Reauthorization28 (VAWA Reauthorization). In short, the VAWA
Reauthorization re-vests Indian tribes with the inherent authority to prosecute non-Indians who
commit dating and domestic violence crimes against Indians within the tribes’ jurisdictions
provided the non-Indians have certain enumerated ties to the tribes and the tribes provide
protections for the rights of the domestic abuse criminal defendants.29
Over Nonmember Indians
In Duro v. Reina, the Supreme Court applied Oliphant to hold that a tribe does not possess
authority to exercise criminal jurisdiction over Indian offenders who are not members of the
tribe.30 In response, Congress amended the Indian Civil Rights Act so that the terms “powers of
self-government” include “the inherent power of Indian tribes, hereby recognized and affirmed, to
exercise criminal jurisdiction over all Indians,”31 and “Indian” “means any person who would be
subject to the jurisdiction of the United States as an Indian under section 1153 of Title 18 if that
person were to commit an offense listed in that section in Indian country to which that section
applies.”32 Thus Congress re-vested the tribes with the inherent authority to try nonmember
Indians.33
The authority to try nonmember Indians, however, does not extend to all persons who are racially
Indians. “The term ‘Indian’ is not statutorily defined, but courts have judicially explicated its
meaning. The generally accepted test for Indian status considers ‘(1) the degree of Indian blood;
and (2) tribal or government recognition as an Indian.’”34 For the first requirement, there is no set
26 Oliphant, 435 U.S. at 211.
27 Id. at 212.
28 P.L. 113-4 (2013).
29 For an analysis of the legal issues raised by the VAWA Reauthorization, see CRS Report R42488, Tribal Criminal
Jurisdiction over Non-Indians in S. 47 and H.R. 11, the Violence Against Women Reauthorization Act of 2013, by Jane
M. Smith and Richard M. Thompson II.
30 495 U.S. 676.
31 25 U.S.C. §1301(2).
32 25 U.S.C. §1301(3).
33 United States v. Lara, 541 U.S. 193 (2004). In Lara, the Court held that Congress had authority to “relax” restrictions
imposed on the tribes’ inherent authority.
34 United States v. Maggi, 598 F.3d 1073, 1078 (9th Cir. 2010), quoting United States v. Bruce, 394 F.3d 1215 (9th Cir.
2005) (internal quotation marks and citations omitted).
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degree of Indian blood that is required.35 However, the Indian blood must trace back to a federally
recognized tribe.36 The second requirement “requires membership or affiliation with a federally
recognized tribe.”37 “When analyzing this prong, courts have considered, in declining order of
importance, evidence of the following: (1) tribal enrollment; (2) government recognition formally
and informally through receipt of assistance reserved only to Indians; (3) enjoyment of the
benefits of tribal affiliation; and (4) social recognition through residence on a reservation and
participation in Indian social life.”38 Therefore, a person with Indian blood who is not a member
of the tribe may be subject to prosecution by the tribe if he or she is enrolled in another Indian
tribe; received federal benefits or services for Indians; partook of any of the privileges of tribal
affiliation, such as participating in tribal hunting or fishing rights or being arrested by tribal police
and tried in tribal courts; resided on the Indian reservation; or participated in tribal ceremonies
and social events.39 It appears that courts look to the cumulative effect of these considerations,
with no single factor being determinative.
Civil Jurisdiction
The general rule that tribes lack civil jurisdiction over nonmembers is deceptively simple. Tribal
civil jurisdiction over nonmembers is complicated for several reasons.
First, the two Montana exceptions to the general rule for consensual relationships and threats to
the tribe do not provide bright line rules. Courts must decide cases involving tribal civil
jurisdiction over nonmembers based on the unique facts of each case.
Second, there are two types of civil jurisdiction: legislative40 and adjudicatory.41 The Court has
held that tribal adjudicatory jurisdiction is no broader than tribal legislative jurisdiction.42 It has
not determined whether tribal adjudicatory jurisdiction is as broad as tribal legislative
jurisdiction. To answer the question whether a tribal court may adjudicate a case involving
nonmember conduct, therefore, the Court inquires whether the tribe would be able to regulate that
conduct.43 Again, there are no bright line rules.
Third, the court has refused to draw a bright line based on the ownership of the land on which the
nonmember conduct takes place. In Nevada v. Hicks, the Court held that the Montana rule applied
to Indian and non-Indian land.44 The status of the land is one factor—perhaps in some cases even
35 Maggi, 598 F.3d at 1080.
36 Id.
37 Id. at 1081 (internal quotation marks and citations omitted; alteration omitted).
38 Id., quoting Bruce, 394 F.3d at 1224 (internal quotation marks and citations omitted).
39 See Bruce, 394 F.3d at 1226 and Maggi, 598 F.3d at 1082-1083.
40 Legislative jurisdiction is the authority to regulate.
41 Adjudicatory jurisdiction is the authority to hear and decide cases.
42 Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997).
43 See Plains Commerce Bank v. Long Family Land and Cattle Co., 554 U.S. 316 (2008), and Hicks, 533 U.S. 353
(2001).
44 Hicks, 533 U.S. at 360.
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a determinative factor—to consider in determining whether a tribe has jurisdiction over non-
Indian conduct.45
Finally, it is unclear whether tribes generally have civil jurisdiction over Indians who are not
members of the tribe. Although Congress re-vested tribes with jurisdiction to try nonmember
Indians for criminal conduct, it did not take any action regarding civil jurisdiction over
nonmember Indians. The leading commentator on Indian law, however, believes that because
Oliphant’s analysis focused on the understanding of Congress and the executive branch, in
addition to that of the courts, Congress’s decision to re-vest tribes with criminal jurisdiction over
nonmember Indians alters the Court’s analysis of Congress’s understanding of tribal jurisdiction
over nonmember Indians such that the Court might find that tribes have civil jurisdiction over
nonmember Indians even though Congress has not provided for it.46
The Montana Exceptions
Most of the litigation concerning the Montana exceptions has concerned the exception for
nonmembers who enter consensual relationships with tribes or tribal members. The Supreme
Court has significantly limited the exception for threats to the tribe.
Consensual Relationships
Tribes may exercise jurisdiction over non-Indians when the non-Indians enter consensual
relationships, such as “commercial dealing[s], contracts, leases, or other arrangements,” with the
tribe or tribal members.47 The Court has interpreted this exception narrowly. Federal courts have
rarely found tribal jurisdiction based on a nonmember’s consensual relationship. In First
Specialty Insurance v. Confederated Tribes of the Grand Ronde Community of Oregon, the
district court upheld the tribal court’s jurisdiction over a claim based on a contract between the
Tribes and the insured nonmember investment company.48 In this case, the Tribes’ causes of
action were based directly on a formal agreement between the Tribes and the nonmember. The
Supreme Court has stated, however, that the consensual relationship need not be formal.49
The Consensual Relationship Must Be Related to the Non-Indian Conduct
at Issue
In Atkinson Trading Co. v. Shirley, in considering a tribal tax, the Court wrote, “Montana’s
consensual relationship exception requires that the tax or regulation imposed by the Indian tribe
have a nexus to the consensual relationship itself.”50 “A non-member’s consensual relationship in
one area thus does not trigger tribal civil authority in another—it is not in for a penny, in for a
45 Id.
46 Cohen’s Handbook of Federal Indian Law (2005) (Cohen) §4.03[3] at 248.
47 450 U.S. at 565.
48 2007 U.S. Dist. LEXIS 82591 (D.Ore. November 2, 2007).
49 Plains Commerce Bank, 554 U.S. at 337 (nonmember‘s consent may be demonstrated “either expressly or by his
actions.”).
50 532 U.S. 645, 656 (2001).
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pound.”51 Similarly, a court’s adjudicative jurisdiction must have some nexus to the consensual
relationship.
In Strate v. A-1 Contractors,52 the defendant in tribal court had a contract with the Three
Affiliated Tribes of the Ft. Berthold Indian Reservation to perform landscaping. The contractor
found itself a defendant in tribal court in conjunction with a traffic accident that occurred on a
state highway within the reservation. The Court held that the tribal court did not have jurisdiction
over a claim arising out of the accident. Thus, it is not enough that the nonmember have a
consensual relationship with a tribe or a tribal member. The conduct over which the tribe is
exercising jurisdiction must be related to that consensual relationship. As the Court put it, even
though the contractor had a consensual relationship with the Tribes, they “were strangers to the
accident.”53
The Consensual Relationship Must Be Private
Not every consensual relationship with tribal members or a tribe is subject to tribal jurisdiction,
even if it has a nexus to the nonmember conduct at issue. In Hicks, the Court wrote that the
relationship must be private.54 In this case, a tribal member who resided on tribal land sued state
game wardens in tribal court for damages to property caused by the wardens violating the terms
of their search warrant. The wardens had a consensual relationship with the tribe in that they
executed the warrant through the tribal court. However, the Court found that the relationship did
not fit within the first Montana exception and denied that the tribal court had jurisdiction.
In MacArthur v. San Juan County, the U.S. Court of Appeals for the Tenth Circuit extended the
Hicks requirement to apply to state agencies generally.55 In MacArthur, tribal members sued a
county, a county agency, and various agency employees in tribal court for allegedly wrongful
conduct in connection with the tribal members’ employment by the agency, which was located on
non-Indian land within the reservation. The court drew a distinction between “private individuals
or entities who voluntarily submit themselves to tribal jurisdiction and ‘States or state officers
acting in their governmental capacity,’”56 and held “in the absence of congressional delegation,
the tribes may not regulate a State qua State on non-Indian land (even within the exterior
boundaries of the reservation) based on a consensual relationship between members of the tribe
and the State.”57 The court specifically reserved for another case whether a tribe may exercise
jurisdiction over a state that has entered a consensual relationship with a tribe or its members in a
non-governmental or proprietary capacity.
51 Id. (internal quotations omitted).
52 520 U.S. 438 (1997).
53 Id. at 457.
54 533 U.S. at 359 n. 3.
55 497 F.3d 1057 (9th Cir. 2007).
56 Id. at 1073.
57 Id. at 1073-1074. See also Red Mesa Unified School Dist. v. Yellowhair, 2010 U.S. Dist. LEXIS 104276 (D. Ariz.
September 28, 2010) (holding that employment contract between tribal members and school district operating a public
school on tribal land was not a private consensual relationship within the Montana exception).
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The Consensual Relationship May Consist of Invoking Tribal Court Jurisdiction
A nonmember party who brings suit against a tribal member or the tribe in tribal court has entered
into a consensual relationship with the tribe for the purposes of adjudicating claims in which the
nonmember is a plaintiff or a defendant in a subsequent related action.
In Smith v. Salish Kootenai College, the U.S. Court of Appeals for the Ninth Circuit (Ninth
Circuit) upheld the tribal court’s jurisdiction to adjudicate a nonmember’s claim against a tribal
college.58 Smith, the nonmember, was driving a tribal college truck with two tribal members in it
when the truck overturned, killing one member and seriously injuring Smith and the other tribal
member. The estate of the member who died filed suit against Smith and the tribal college in
tribal court. The tribal college filed a cross-claim against Smith. The injured tribal member then
filed suit in tribal court against Smith and the tribal college. Smith filed a cross-claim against the
tribal college. All the claims except Smith’s claim against the tribal college settled. Rather than
filing his claim against the tribal college in state court, Smith went to trial in tribal court and lost.
He then asserted that the tribal court lacked jurisdiction over his claim. The Ninth Circuit held
that even though Smith was originally a defendant, by filing a cross-claim against the tribal
college he “knowingly enter[ed] tribal court for the purposes of filing suit against the tribal
college [and], by the act of filing his claims, entered into a ‘consensual relationship’ with the tribe
within the meaning of Montana.”59
In Ford Motor Credit Co. v. Poitra,60 the court extended the holding in Salish Kootenai College to
uphold tribal court jurisdiction over a member’s claim against a nonmember because the
nonmember, in a related but separate claim, had invoked the tribal court’s jurisdiction as a
plaintiff. Ford Credit, as plaintiff, obtained a default judgment in tribal court against the tribal
member for failing to make payments on a vehicle that Ford Credit financed. Three years later, in
a separate lawsuit, the tribal member sued Ford Credit in tribal court seeking damages as a result
of Ford Credit’s failure to execute the default judgment. Ford Credit lost in tribal court and sought
an injunction against enforcement of the tribal court judgment in federal district court, claiming
that the tribal court lacked jurisdiction over it. The district court, citing Salish Kootenai College,
upheld the tribal court’s jurisdiction. Quoting the tribal court of appeals, the court wrote, “A non-
Indian cannot utilize a tribal forum to gain relief against a tribal member and then attempt to
avoid that jurisdiction when it acts negligently in that same action resulting in potential harm to
the tribal member.”61
Threat to the Tribe’s Integrity
The second Montana exception provides that tribes may exercise jurisdiction over nonmembers
when the nonmember’s conduct “threatens or has some direct effect on the political integrity, the
economic security, or the health or welfare of the tribe.”62 Subsequent cases have limited this
exception significantly.
58 434 F.3d 1127 (9th Cir. 2006).
59 434 F.3d at 1140.
60 2011 U.S. Dist. LEXIS 20835 (D.N.D. March 2, 2011).
61 Id. at 4.
62 Montana, 450 U.S. at 565.
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In Atkinson Trading Co. v. Shirley, the Court struck down a tribal tax on guests of a nonmember’s
hotel located on non-Indian fee land within the reservation.63 The Navajo Nation (Nation) argued
that the trading post of which the hotel was a part had “direct effects” on its welfare: the Nation
provided services to the trading post; the owner of the trading post was an “Indian trader”; the
trading post employed almost 100 tribal members; the trading post derived business from the
tourists visiting the reservation; and the trading post was surrounded entirely by tribal land. The
Court rejected the Nation’s argument.
The [second] exception is only triggered by non-member conduct that threatens the Indian
tribe, it does not broadly permit the exercise of civil authority wherever it might be
considered “necessary” to self-government. Thus, unless the drain of the non-member’s
conduct upon tribal services and resources is so severe that it actually “imperils” the political
integrity of the Indian tribe, there can be no assertion of civil authority beyond tribal lands.64
In Plains Commerce Bank v. Long Family Land and Cattle Co., the Court reiterated the limited
nature of this exception: “[t]he conduct must do more than injure the tribe, it must imperil the
subsistence of the tribal community. One commentator has noted that ‘the elevated threshold for
application of the second Montana exception suggests that tribal power must be necessary to
avert catastrophic consequences.’”65
There is one recent court of appeals case that upheld a tribal court’s jurisdiction over a
nonmember based on this second exception. In Attorney’s Process and Investigation Services v.
Sac & Fox Tribe of the Mississippi in Iowa, the U.S. Court of Appeals for the Eighth Circuit
upheld the tribal court’s jurisdiction over trespass and trade secrets claims against a nonmember
for taking over the Tribe’s facilities and seizing tribal financial documents.66 In this case, there
had been an ongoing tribal leadership dispute: the elected leaders refused to honor the recall
petitions submitted by tribal members, and the opposition leaders took control of the Tribe’s
government building and casino. The opposition leaders held an election in which a majority
voted against the elected leaders. The elected leaders hired the nonmember to remove the
opposition from the Tribe’s facilities. The nonmember raided the facilities with 30 agents armed
with batons. At least one agent had a firearm. Later, the Tribe sued the nonmember in tribal court.
After the tribal court found for the tribe, the nonmember challenged the tribal court’s jurisdiction
in federal court. The court of appeals upheld the tribal court’s jurisdiction, finding that the
nonmember’s raid “threatened the tribal community and its institutions” as well as the “political
integrity and economic security of the Tribe.”67
The dawn attack was directed at the Tribe’s community center—the seat of tribal
government—and the casino, which the tribal appellate court characterized as “the Tribe’s
economic engine.” As it appears from the allegations, the raid sought to return the [elected
leaders] to power despite the majority’s rejection of the leadership in the May election. This
was a direct attack on the heart of tribal sovereignty, the right of Indians to protect tribal self-
government.68
63 532 U.S. 645 (2001).
64 532 U.S. at 657 n. 12 (emphasis in original).
65 554 U.S. at 341, quoting Cohen §4.02[3][c], at 232 n. 220.
66 609 F.3d 927 (8th Cir. 2010).
67 Id. at 939.
68 Id. (internal quotations omitted).
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The court reinforced its conclusion that the tribal court had jurisdiction over the Tribe’s claims
against the nonmember with the fact that the raid occurred on tribal land: as the landowner, the
Tribe had the power to exclude the nonmember altogether. That power includes the authority to
regulate conduct on the tribal land.69
Based on the language from Atkinson and Plains Commerce Bank, the second Montana exception
appears to be very limited and will be applied only in cases in which the tribe’s survival is
threatened by nonmember conduct.
The Power to Exclude
In Merrion v. Jicarilla Apache Tribe, decided one year after Montana, the Supreme Court upheld
the Tribe’s authority to impose a severance tax on a nonmember company extracting oil and gas
from tribal property, in addition to the negotiated royalty payments under the lease.70 The Court
found the jurisdiction to tax nonmembers on tribally owned land derived from the Tribe’s power,
as a landowner, to exclude nonmembers and its “general authority, as sovereign, to control
economic activity within its jurisdiction and to defray the cost of providing governmental services
by requiring contributions from persons or enterprises engaged in economic activities within that
jurisdiction.”71
It is not clear, however, if the power to exclude is independent of the Montana exceptions.
Although the Court has written that “[r]egulatory authority goes hand in hand with the power to
exclude,”72 it has also written that “the existence of tribal ownership is not alone enough to
support regulatory jurisdiction over nonmembers.”73 If the power to exclude were independent of
the Montana exceptions, it seems that the existence of tribal ownership alone would suffice to
support regulatory jurisdiction.
Moreover, language in the Atkinson opinion, decided in 2001, raises further questions about
whether the power to exclude is independent of the Montana exceptions. Rejecting the Tribe’s
argument that Merrion’s recognition of inherent authority to tax supported an occupancy tax on
guests staying at a nonmember hotel on non-Indian land, the Court wrote,
Merrion [] was careful to note that an Indian tribe’s inherent power to tax only extended to
“transactions occurring on trust lands and significantly involving a tribe or its members.”
There are undoubtedly parts of the Merrion opinion that suggest a broader scope for tribal
taxing authority than the quoted language above. But Merrion involved a tax that only
applied to activity occurring on the reservation, and its holding is therefore easily
reconcilable with the Montana-Strate line of authority, which we deem to be controlling. An
Indian tribe’s sovereign power to tax—whatever its derivation—reaches no further than
tribal land.74
69 Id. at 940.
70 455 U.S. 130 (1982).
71 Id. at 137.
72 South Dakota v. Bourland, 508 U.S. 679, 691 n. 11 (1993).
73 Hicks, 533 U.S. at 360.
74 532 U.S. at 653 (emphasis in original; internal citations and parenthetical omitted).
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Tribal Jurisdiction over Nonmembers: A Legal Overview
Thus, because the Court wrote that the Montana-Strate line of precedent controlled, it is not clear
whether the power to exclude provides authority over nonmembers on tribal land independent of
the Montana exceptions. Despite this uncertainty, in Water Wheel Camp Recreational Area, Inc. v.
LaRance,75 the U.S. Court of Appeals for the Ninth Circuit found that the tribal court had
jurisdiction over a non-Indian who had leased land from the Colorado River Indian Tribes but
stayed after the lease had expired based on the Tribes’ power to exclude, independent of the
Tribes’ inherent authority under the Montana exceptions.
Statutory Exceptions
In addition to exercising authority over nonmembers pursuant to their inherent sovereign
authority, Indian tribes may exercise jurisdiction over nonmembers within reservations when
Congress authorizes them to do so.76 Congress may relax restrictions on tribes’ inherent sovereign
authority, as it did with tribal criminal jurisdiction over nonmember Indians and non-Indian
dating and domestic violence defendants, or delegate federal authority to tribes. Congress may
delegate federal authority to tribes through laws authorizing federal enforcement of tribal legal
standards or laws authorizing tribal enforcement of federal statutes.77
There are two “prominent” examples of Congress providing for federal enforcement of tribal
standards.78 First, Section 1161 provides that the federal criminal statutes prohibiting the
introduction of alcohol in Indian country “shall not apply ... to any act or transaction within any
area of Indian country provided such act or transaction is in conformity both with the laws of the
State in which such act or transaction occurs and with an ordinance duly adopted by the
[governing] tribe.”79 In United States v . Mazurie, the Supreme Court upheld Section 1161 as a
delegation to Indian tribes of Congress’s authority to regulate the sale of alcohol by non-Indians
within Indian reservations.80 In City of Timber Lake v. Cheyenne River Sioux Tribe, the Eighth
Circuit upheld the authority of the Tribe to require nonmembers to obtain tribal liquor and
business licenses and to enforce those requirements in tribal court.81 Second, Section 1165
establishes criminal penalties for anyone who, “without lawful authority or permission, willfully
and knowingly goes upon” individual Indian or tribal trust land or any lands reserved for Indian
use “for the purpose of hunting, trapping, or fishing thereon.”82 Section 1165, therefore, imposes
federal criminal penalties for knowing violations of tribal hunting and fishing licensing
requirements.
The Clean Air Act provides an example of Congress delegating federal authority to tribes to
regulate nonmember conduct on non-Indian fee land by enforcing their own standards. Under
Section 7601(d)(1)(A), Indian tribes may petition the Environmental Protection Agency (EPA) for
authority to regulate reservation air quality in accordance with minimum federal standards.83 If
75 642 F.3d 802 (9th Cir. 2011).
76 Atkinson, 532 U.S. at 649-650.
77 Cohen §4.03[1] at 238.
78 Id. at 238-239.
79 18 U.S.C. §1161.
80 419 U.S. 544 (1975).
81 10 F.3d 554 (8th Cir. 1993) cert. denied, 512 U.S. 1236 (1994).
82 18 U.S.C. §1165.
83 42 U.S.C. §7601(d)(1)(A); discussed in Cohen, §4.03[1] at 239-240. The Clean Water Act provides a similar process
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EPA grants a petition, the tribe establishes standards, issues permits, and enforces the standards
for all land, including non-Indian fee land, within the reservation.
Nonmembers Must First Challenge Tribal Court Jurisdiction
in Tribal Court
Although tribal civil jurisdiction over nonmembers is quite limited, a nonmember defendant in
tribal court who believes the court lacks jurisdiction must first challenge the tribal court’s
jurisdiction in tribal court.84 Federal courts will dismiss an action challenging the jurisdiction of a
tribal court if the tribal court defendant has not challenged tribal court jurisdiction through the
tribal court appellate process subject to four exceptions:
(1) when an assertion of tribal court jurisdiction is “motivated by a desire to harass or is
conducted in bad faith”; (2) when the tribal court action is “patently violative of express
jurisdictional prohibitions”; (3) when “exhaustion would be futile because of the lack of an
adequate opportunity to challenge the tribal court’s jurisdiction”; and (4) when it is “plain”
that tribal court jurisdiction is lacking, so that the exhaustion requirement “would serve no
purpose other than delay.”85
Once a defendant has appealed his or her challenge of tribal court jurisdiction to the highest tribal
court, he or she may then challenge the tribal court’s jurisdiction in federal court.
Conclusion
As a general rule, Indian tribes lack criminal and civil jurisdiction over nonmembers. However,
there are exceptions. First, Congress re-vested Indian tribes with inherent authority to exercise
criminal jurisdiction over nonmember Indians, as well as non-Indians who commit dating and
domestic violence against Indians within the tribes’ jurisdictions, provided the non-Indian has
certain enumerated ties to the tribes. Second, under the first Montana exception, tribes may
exercise civil jurisdiction over nonmembers when the nonmembers have entered private
consensual relationships with the tribe or its members, provided the conduct at issue relates to the
consensual relationship. Third, under the second Montana exception, Indian tribes may exercise
civil jurisdiction over nonmembers when the nonmembers’ conduct threatens the integrity of the
tribe. Fourth, tribes may exercise jurisdiction over nonmembers when Congress authorizes them
to do so. Although the Supreme Court has recognized the tribal right to exclude nonmembers
from tribal land as a basis for regulatory authority, it is not clear whether the right to exclude is
independent of the Montana exceptions. While the Supreme Court has drawn tribal jurisdiction
over nonmembers narrowly, it has also held that defendants in tribal court who challenge the
tribal court’s jurisdiction must exhaust their tribal court remedies before seeking relief in federal
court.
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for tribes to assume authority to enforce their own clean water standards.
84 Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987) (federal question jurisdiction); National Farmers Union
Insurance Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985) (diversity jurisdiction).
85 Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842, 847 (9th Cir. 2009), cert. denied, 130 S. Ct. 624 (2009),
quoting Hicks, 533 U.S. at 369.
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Author Contact Information
Jane M. Smith
Legislative Attorney
jmsmith@crs.loc.gov, 7-7202
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