§82.5.7 Significant Authorities

• Jurisdiction: Washington

§82.5.7SIGNIFICANT AUTHORITIES

Application of CR 82.5 requires determination of the existence and scope of tribal and state court jurisdiction. This section examines important case law on the interface between tribal, state, and federal courts.

(1)Federal

The majority of decisions interpreting the jurisdictional authority of tribal courts are federal opinions. Over the past 30 years, the United States Supreme Court and the U.S. Court of Appeals for the Ninth Circuit have set forth basic standards against which tribal court jurisdiction can be tested.

(a)Supreme Court decisions

The United States Supreme Court has made numerous rulings on the jurisdiction of tribal courts. In 1959, the Court held that a state court had no jurisdiction in a debt collection action brought against an Indian customer by a non-Indian merchant operating on the Navajo Reservation. Williams v. Lee, 358 U.S. 217, 79 S. Ct. 269, 3 L. Ed. 2d 251 (1959). Allowing state jurisdiction in this case "would undermine the authority of the tribal courts over Reservation affairs...." Id. at 223. Based on Williams, tribal courts will have exclusive jurisdiction in suits against tribal members arising on the reservation. In Montana v. United
States,, 450 U.S. 544,101S. Ct. 1645,64 L. Ed. 2d 234 (1981), the Court ruled that an Indian tribe presumptively lacks civil jurisdiction over non-Indians acting within the reservation where the activities occur on non-Indian-owned fee land. This presumptive lack of jurisdiction is subject to two exceptions. First, a tribe may assert jurisdiction over the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. Id. at 565. The assertion of jurisdiction must have some nexus to the consensual relationship that exists between the tribe and the nonmember. Second, a tribe may retain inherent power to exercise civil jurisdiction when the nonmember's activity "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Id. at 566. This second Montana exception has been narrowly interpreted. Atkinson Trading Co. v. Shirley, 532 U.S. 645, 121 S. Ct. 1825, 149 L. Ed. 2d 889 (2001).

Although Montana addressed a tribe's civil regulatory jurisdiction, the Supreme Court later held that the Montana test also determines the limits of a tribe's civil adjudicatory jurisdiction over nonmembers acting on non-Indian-owned fee land within the reservation. Strate v. A-l Contractors, 520 U.S. 438, 117 S. Ct. 1401, 137 L. Ed. 2d 661 (1997) (holding that tribal court lacked jurisdiction over tort action arising from car accident between two nonmembers on state highway running through reservation). Atribe's civil adjudicatory jurisdiction does not exceed its civil legislative or regulatory jurisdiction. Id. at 453.

Since Strate, the Supreme Court has issued two narrow, fact-specific decisions regarding tribal court jurisdiction. InNevada v. Hicks, 533 U.S. 353, 121 S. Ct. 2304, 150 L. Ed. 2d 398 (2001), the Court held that a tribe could not assert civil regulatory or adjudicatory authority over state officials executing a search warrant on tribal lands for evidence of a tribal member's off-reservation crime. In Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 128 S. Ct. 2709, 171 L. Ed. 2d 457 (2008), the Court held that a tribal court lacked jurisdiction over a discrimination claim brought by Indians against a non-Indian bank arising out of a sale of non-Indian-owned fee land. In both cases, the Court applied Montana and found that neither exception permitted the exercise of jurisdiction over the non-Indian defendant.

Comment: The Montana presumption against tribal civil jurisdiction over nonmembers acting on the reservation is generally applicable only to activities occurring on non-Indian-owned fee land. For activities arising on Indian lands or lands held in trust for Indians by the United States, civil jurisdiction presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute. Water Wheel Camp Rec. Area, Inc. v. LaRance, 642 F.3d 802, 812 (9th Cir. 2011). The Hicks case, which arose on tribal lands, is a

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