CHAPTER 15 FEDERAL COMMON-LAW LIMITS ON TRIBAL CIVIL JURISDICTION OVER NON-INDIANS INVOLVED IN ON-RESERVATION RESOURCE DEVELOPMENT PROJECTS: FOLLOWING THE STRATE PATH

• Jurisdiction: United States

Natural Resources Development and Environmental Regulation in Indian Country
(May 1999)
CHAPTER 15
FEDERAL COMMON-LAW LIMITS ON TRIBAL CIVIL JURISDICTION OVER NON-INDIANS INVOLVED IN ON-RESERVATION RESOURCE DEVELOPMENT PROJECTS: FOLLOWING THE STRATE PATH
Kevin J Worthen
Brigham Young University
Provo, Utah

I. Introduction

Indian tribes have occupied an important, but often ill-defined, position in our constitutional system of government from the outset of the Republic. As the Supreme Court has recognized, they are "unique aggregations possessing attributes of sovereignty over both their members and their territory."¹ The nature of these "unique" attributes of sovereignty is not spelled out in even rudimentary form in the Constitution itself, however. Thus, the contours of tribal sovereignty have ebbed and flowed over the past two centuries based on the latest congressional actions, treaties, and judicial decisions.

Tribal authority is at a zenith, and generally well accepted, when it involves both tribal members and tribal territory. Less certain, and much more controversial, has been the question of the extent of tribal authority over non-Indians who are in tribal territory.

The issue of tribal jurisdiction over non-Indians has been complicated over time by various federal policies; none more so than the allotment policy of the late 19th century, which resulted in non-Indian ownership of vast amounts of land within the boundaries of some reservations.² The issue has become more important over time as there have been increased

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development efforts on the reservation, efforts often involving individuals and entities from outside the Tribe. Although some aspects of the issue are addressed in treaties and statutes, many of the details, and even some of the fundamental general principles, have been left for judicial development.

This paper focuses on the judicial development of federal common-law rules governing a tribe's authority to regulate the conduct of non-Indians ³ on lands located within its reservation.⁴ It first outlines the key decisions concerning tribal jurisdiction over non-Indians that led to the Supreme Court's recent decision in Strate v. A-1 Contractors.⁵ It then analyzes the Court's decision in Strate, looking at the issues clarified by that ruling and those which are still left to be resolved. The paper then considers the impact Strate may have on the authority of tribes to regulate non-Indians engaged in resource development projects on the reservation and concludes with a few general observations about the path courts may follow in addressing this important,

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and still somewhat unresolved, issue in the future.

II. Federal Common Law Limits on Tribal Jurisdiction: The Winding Road Leading to Strate.

A. Early Foundations

In its earliest decisions, the Supreme Court recognized Indian Tribes as "distinct, independent political communities," with inherent sovereignty.⁶ However, the Court also recognized from the outset that there were limits on this inherent tribal sovereignty, limits imposed not only by congressional legislation and treaties, but also by federal common law.⁷ Thus, in its 1823 decision of Johnson v. M'Intosh, the Court held that tribes lacked the power to freely alienate the land they occupied,⁸ noting that under the "discovery doctrine," the rights of the tribes "to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil, at their own will ... was denied by the original fundamental principle, that discovery gave exclusive title to those who made it."⁹ Less than a decade later, in Cherokee Nation v. Georgia,¹⁰ the Court concluded that the tribes were not "foreign nations" for federal jurisdictional purposes, but instead were "domestic dependant nations" who were "so completely under the sovereignty and dominion of the United States," that they had lost the

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power to form political connections with other foreign nations.¹¹

B. Modern Development

1. Criminal Jurisdiction

For 140 years after its early decisions, the Court said little about the nature of this federal common law limit on inherent tribal sovereignty. However, in 1978, beginning with Oliphant v. Suquamish Indian Tribe,¹² the Court began to delineate the modern contours of this limitation. Oliphant involved a challenge to the exercise of tribal criminal jurisdiction over two non-Indians arrested by tribal police on the Suquamish Indian Reservation. The Court first reviewed prior federal pronouncements concerning the extent of inherent tribal authority over criminal activities of non-Indians and found a "commonly shared presumption of Congress, the Executive Branch, and lower federal courts that tribal courts do not have the power to try non-Indians."¹³ This "common understanding" was not, however, "conclusive on the issue."¹⁴ The determinative factor was the Court's "earlier precedents."¹⁵ Citing its now century old decisions in Johnson v. M'Intosh and Cherokee Nation v. Georgia, among others, the Court noted that "Indian tribes are prohibited from exercising ... those powers that are inconsistent with their status" as domestic dependant nations,¹⁶ and concluded that among the powers that the tribes "necessarily" gave up in "submitting to the overriding sovereignty of the United States," was the "power to try non-Indian citizens of the United States except in a manner acceptable to Congress."¹⁷ Thus, the Court held that "Indians do not have criminal jurisdiction over non-Indians absent affirmative delegation of power by Congress,"¹⁸ one of the few clear cut, and so far unchanging, federal common-law principles concerning tribal jurisdiction over non-Indians.

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2. Civil Jurisdiction

a. Montana v. United States

The rules concerning a tribe's authority to exercise civil jurisdiction over the activities of non-Indians have not developed as simply. The seminal decision concerning the federal common-law limits on a tribe's authority to exercise civil jurisdiction over non-Indians came three years after Oliphant in Montana v. United States,¹⁹ a case involving a challenge to the Crow Tribe's authority to regulate the on-reservation hunting and fishing activities of non-Indians.

1. Regulation of Activities on Tribal Lands

At the outset of its discussion of the jurisdictional issue,²⁰ the Court distinguished the Tribe's authority to exercise civil regulatory authority over non-Indian conduct occurring on tribally owned land from its power to regulate the same conduct on lands owned in fee by non-Indians, noting that "[t]he Court of Appeals held that the Tribe may prohibit nonmembers from hunting or fishing on land belonging to the Tribe or held in trust by the United States for the Tribe ... and with this holding we can readily agree."²¹

This often overlooked aspect of Montana explains the Court's subsequent ruling in Merrion v. Jicarilla Apache Tribe,²² upholding the power of the Jicarilla Apache Tribe to impose an oil and gas severance tax on non-Indians producing oil and gas from tribal trust lands leased by the producers from the Tribe. While the Merrion Court did not even mention Montana in its decision, the ruling can easily be viewed as an application of the principle recognized in Montana that tribal authority over non-Indian activity on tribal lands is much greater than it is over the same activity on non-Indian land.²³ This aspect of Montana was also consistent with

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the Court's previous ruling in Washington v. Confederated Tribes of Colville Indian Reservation²⁴ that the Colville Tribes could impose a sales tax on non-Indians who purchased cigarettes from outlets located on tribal trust lands because "[t]he power to tax transactions occurring on trust lands and significantly involving a tribe or its member is a fundamental attribute of sovereignty" which is "not implicitly divested by virtue of the tribes' dependant status."²⁵ Thus, with respect to non-Indian activity on lands owned by the tribe or held it trust for them, Montana set forth a straight-forward rule upholding tribal civil regulation.

2. Regulation of Activity on Non-Indian Fee Land

With respect to the Tribe's authority over non-Indians on non-Indian land, however, the Court reached a much different conclusion. While not adopting the absolute prohibition it had imposed on the exercise of tribal criminal jurisdiction over non-Indians in Oliphant, the Court noted that "the principles on which [Oliphant] relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe."²⁶ By way of explanation, the Court noted that while tribes possess some inherent sovereignty, "through their incorporation into the United States, as well as through specific treaties and statutes, the Indian tribes have lost many of the attributes of sovereignty."²⁷ The Court then noted that "[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 nonmembers of the tribe."²⁸ Thus, while tribes retain "their inherent power to determine tribal membership, to

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regulate domestic relations among members, and to prescribe rules of inheritance for members," their "exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependant status of tribes, and so cannot survive without express congressional delegation."²⁹ Thus, Montana established that as a general rule federal common-law prohibits a tribe from regulating the conduct of non-Indians on fee lands within a reservation.

However, the Court also indicated that this general rule is not absolute. "Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction...