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: 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.”). 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.