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: 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. 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.