Walking the Straight and Narrow: Another Squeeze on Tribal Civil Jurisdiction Over Nonmembers in Smith v. Salish Kootenai College, 378 F.3d 1048 (9th Cir. 2004)

• Publication year: 2021
• Citation: Vol. 83

83 Nebraska L. Rev. 1325. Walking the Straight and Narrow: Another Squeeze on Tribal Civil Jurisdiction over Nonmembers in Smith v. Salish Kootenai College, 378 F.3d 1048 (9th Cir. 2004)

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Walking the Straight and Narrow: Another Squeeze on Tribal Civil Jurisdiction over Nonmembers in Smith v. Salish Kootenai College, 378 F.3d 1048 (9th Cir. 2004)

TABLE OF CONTENTS

I. Introduction ..................................................... 1326
II. Background ...................................................... 1327
A. The Evolution of Tribal Civil Jurisdiction over
Nonmembers ................................................... 1327
1. The Early History of Tribal Court Civil
Jurisdiction .............................................. 1327
2. Montana v. United States ...................... 1330
3. Interpreting Montana .......................... 1331
B. Smith v. Salish Kootenai College ................. 1333
1. Facts ..................................................... 1333
2. Holding ................................................... 1334
III. Analysis: The Ninth Circuit Should Not Have Narrowed
Tribal Court Civil Jurisdiction by Reversing a Finding
of Jurisdiction in Smith .......................... 1338
A. The Ninth Circuit Properly Rejected a Controlling
Application of Williams v. Lee but Applied a Faulty
Analysis ..................................................... 1338
B. Even Though Williams v. Lee Does Not Control, the
Ninth Circuit Should Have Found Tribal Court
Jurisdiction Under the First Montana Exception .. 1342
IV. Conclusion ...................................................... 1344

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I. INTRODUCTION

Exercising civil jurisdiction is vital to the success of Indian tribes. No one questions the fact that an Indian tribe, unless limited by Congress, may exer cise the full range of its civil jurisdiction over tribal members within the reser vation. Tribal members who wish to marry, divorce, adopt children, develop their land, or engage in commercial enterprise on the reservation may do so only if they comply with tribal law.

With regard to non-Indians, the answer is more complex. (fn1)

The question of tribal jurisdiction over nonmembers is problematic, and becomes ever more so with each new holding on the issue. One thing, however, is certain. While tribes retain some ability to exercise jurisdiction over nonmembers, the extent of the ability they retain is dwindling.(fn2) From state and federal district courts to the U.S. Supreme Court, techniques are employed--often unreasonably and inconsistently--to usurp tribal jurisdiction at nearly every opportunity. Although commentators criticize courts for inconsistently deciding tribal jurisdiction over nonmembers,(fn3) courts continue to limit tribal civil jurisdiction.

This Note discusses the issue of tribal court civil jurisdiction over nonmembers, with specific focus on the recent Ninth Circuit case, Smith v. Salish Kootenai College. (fn4) Part II of the Note describes the evolution of tribal court civil jurisdiction over nonmembers beginning with the early history and tracing the discussion to the Supreme Court's decision in Nevada v. Hicks. (fn5)

Part III looks specifically at the Ninth Circuit's recent Smith case as an example of a court's denial of tribal court jurisdiction effected by haphazard means. This Note criticizes the Ninth Circuit's dicta in de

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termining that Montana controls the analysis and suggests that the court should have permitted jurisdiction under the first Montana exception.

II. BACKGROUND

A. The Evolution of Tribal Civil Jurisdiction over Nonmembers

1. The Early History of Tribal Court Civil Jurisdiction

Courts have not always tried to squeeze tribal civil jurisdiction to its narrowest limits. Compared to the severe restraints placed on the criminal jurisdiction of tribal governments in the last two centuries, tribal civil jurisdiction has been relatively free from federal intrusion.(fn6) Until recently, Indian tribes were viewed as inherently possessing the ability to openly exercise civil jurisdiction over non-Indians on the reservation,(fn7) especially as to regulatory jurisdiction.(fn8)

As early as 1904, the Supreme Court recognized that, like other governments, tribes have the right to exclude nonmembers from their territory. Therefore, the Court held, tribes should have the right to determine the conditions on which nonmembers enter and remain in the territory.(fn9) In that early case, the Court held that a tribe could levy a personal property tax on nonmembers whose cattle grazed on Indian trust land.(fn10) In the decades that followed, the Court used similar reasoning to affirm tribes' taxing power,(fn11) and their right to regulate hunting and fishing by non-Indians on tribal lands.(fn12) Even in more recent history, the Supreme Court has recognized, "[t]ribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty."(fn13)

The judicial preservation of tribal sovereignty through grants of tribal civil jurisdiction flowed into the realm of adjudicative authority as well. In 1959, the Supreme Court heard Williams v. Lee, (fn14) the first modern case to address state versus tribal court jurisdiction in conflicts involving Indians and non-Indians in disputes arising in Indian

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country.(fn15) In Williams, the plaintiff was a non-Indian man who operated a general store on the Navajo Indian Reservation in Arizona.(fn16) The plaintiff brought an action against two Navajo Indians to collect for goods sold to them on credit.(fn17) The plaintiff originally brought his action in the Superior Court of Arizona, and the Supreme Court of Arizona affirmed state court jurisdiction over the claim, deciding that because no Congressional Act explicitly restricted state court jurisdiction over civil suits by non-Indians on reservations, state courts could hear such cases.(fn18)

The Supreme Court took the case on writ of certiorari and reversed the finding of state court jurisdiction.(fn19) The Court noted the "broad principles" of the "Court's mandate in Worcester,"(fn20) and Congressional intent to maintain Indian control on reservations(fn21) in holding that the Navajo tribal courts, not Arizona state courts, had jurisdiction over claims brought by non-Indians against Indians and arising on the reservation.(fn22) According to the Supreme Court in Williams, "[t]he cases in this Court have consistently guarded the authority of Indian governments over their reservations. Congress recognized this authority . . . . If this power is to be taken away from them, it is for Congress to do it."(fn23)

Following the end of the Termination Era in 1958 and Williams the next year, "[c]ommentators, pro-Indian activists, and Indian law practitioners started to believe . . . Indian tribes might actually survive the

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trusteeship of the federal government."(fn24) With the success before the Supreme Court and President Nixon's declaration of Self-Determination in 1970, Indians and supporters had reason to be optimistic.(fn25) Unfortunately, despite the once-permissive approach to tribal court civil jurisdiction, several Supreme Court decisions in the last two decades have placed harsh limits on the ability of tribes to exercise civil jurisdiction.(fn26)

Many note Oliphant v. Suquamish Indian Tribe (fn27) as the case that began the erosion of tribal court jurisdiction.(fn28) Although it held on the issue of tribal criminal jurisdiction over nonmembers, it helped set the stage for a "watershed case"(fn29) in the area of tribal court jurisdiction. In Oliphant, the criminal proceedings were brought against two non-Indian defendants in the Suquamish Provisional Tribal Court for assaulting a tribal officer and resisting arrest on the reservation.(fn30) The Supreme Court held that the tribal court did not have jurisdiction to try the non-Indian defendants, stating that, "an examination of our earlier precedents satisfies us that, even ignoring treaty provisions and congressional policy, Indians do not have criminal jurisdiction over non-Indians absent affirmative delegation of such power by Congress."(fn31) The Court further held that "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 .'"(fn32)

This language in the Oliphant opinion shocked tribal courts that had previously been hopeful about their future ability to adjudicate claims by their people. Unfortunately, it also opened the gates for a more dramatic limiting of tribal court jurisdiction in the years to come. Not long after Oliphant, the Supreme Court heard Montana v. United States (fn33)--a case that would change the landscape of the tribal jurisdiction discussion forever.

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2. Montana v. United States

The Montana case addressed the ability of the Crow Tribe of Montana to regulate hunting and fishing by non-Indians on land within the reservation owned by non-Indians.(fn34) The Crow Tribe passed several resolutions regarding hunting and fishing on their reservation, including one that prohibited such activities by anyone who was not a member of the tribe.(fn35) At the same time, the State of Montana also claimed authority to determine hunting and fishing by nonmembers within the reservation.(fn36)

In October of 1975, the United States, acting for itself and as a fiduciary for the tribe, filed suit, seeking:

(1) declaratory judgment quieting title to the bed of the Big Horn River in the United States as trustee for the Tribe, (2) a declaratory judgment establishing that the Tribe and the United States have sole authority to regulate hunting and fishing within the reservation, and (3) an injunction requiring Montana to secure the permission of the Tribe

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