Title: 
Headings: Tribal Jurisdiction over Nonmembers: A Legal Overview
Tribal
 
Jurisdiction
 
over
 
Nonmembers:
 
A
 
Legal
 
Overview
 

Jane
 
M.
 
Smith
 

November
 
26,
 
2013
 

Congressional
 
Research
 
Service
 

Summary
 

Introduction
 

Criminal
 
Jurisdiction
 

Over
 
Non-Indians
 

Over
 
Nonmember
 
Indians
 

Civil
 
Jurisdiction
 

The
 
Montana
 
Exceptions
 

Consensual
 
Relationships
 

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

The
 
Consensual
 
Relationship
 
Must
 
Be
 
Private
 

The
 
Consensual
 
Relationship
 
May
 
Consist
 
of
 
Invoking
 
Tribal
 
Court
 
Jurisdiction
 

Threat
 
to
 
the
 
Tribe’s
 
Integrity
 

The
 
Power
 
to
 
Exclude
 

Statutory
 
Exceptions
 

Nonmembers
 
Must
 
First
 
Challenge
 
Tribal
 
Court
 
Jurisdiction
 
in
 
Tribal
 
Court
 

Conclusion
 

Author
 
Contact
 
Information
 


Content: ”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
 

 
See
 
Duro
 
v.
 
Reina,
 
495
 
U.S.
 
676,
 
685
 
(1990)
 
(“A
 
basic
 
attribute
 
of
 
full
 
territorial
 
sovereignty
 
is
 
the
 
power
 
to
 
enforce
 
laws
 
against
 
all
 
who
 
come
 
within
 
the
 
sovereign’s
 
territory,
 
whether
 
citizens
 
or
 
aliens. Oliphant
 
[v.
 
Suquamish]
 
recognized
 
that
 
tribes
 
can
 
no
 
longer
 
be
 
described
 
as
 
sovereigns
 
in
 
this
 
sense.”). Oliphant
 
v.
 
Suquamish,
 
435
 
U.S.
 
191,
 
208
 
(1978).