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: 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. ”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: