Winter 2002

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Native American Legal Briefs

-Tribal Jurisdiction-

In its June 2001 term, the United States Supreme Court issued two decisions in cases involving tribal jurisdiction. In both cases, the Supreme Court reversed the lower courts and found that the Tribes lacked jurisdiction. These decisions have been viewed with concern as a shrinking of the jurisdiction of Indian Tribes over the conduct of non-Indians.

The first case is Atkinson Trading Company v. Shirley. In that case, the Court held that the Navajo Nation could not tax guests staying at a non-Indian owned hotel located on land owned by a non-Indian in fee (called "fee land") but within the boundaries of the reservation. The second case, Nevada v. Hicks, held that tribal courts do not have jurisdiction to hear civil claims against state officials who entered tribal land to execute a search warrant against a Tribe member suspected of having violated state law outside the reservation.

Both rulings discussed a 1981 decision of the Supreme Court called Montana v. United States. In Montana, the Court held that a Tribe is presumed to lack jurisdiction to regulate non-Indian conduct on fee land owned by a non-Indian. However, the Court noted two exceptions. The first was that there could be tribal jurisdiction if a non-Indian consented to a relationship with a Tribe or its members. The second was that a Tribe may exercise civil authority over the conduct of non-Indians on fee land when that conduct threatens or has some direct effect on the Tribe's political integrity, economic security, or health or welfare.

In Atkinson, the Court noted that tribal jurisdiction is limited. "For powers not expressly conferred them by federal statute or treaty, Indian tribes must rely upon their retained or inherent sovereignty." Congress had not authorized the hotel tax through either a statute or a treaty. Therefore, the Court concluded, the ruling in Montana applied in this case, unless the Tribe could show that the case fell within one of the two exceptions.

The Court concluded that there was no consensual relationship between the hotel guests and the Navajo Nation. The Court stated that such a relationship must come out of commercial dealings, contracts, leases or other arrangements. The Nation argued that the relationship existed because the hotel benefits from a number of services provided by the Nation, such as emergency medical services and fire protection. The Court concluded that the Nation perhaps had a right to charge for these types of services, but that the mere availability of these services was not enough to give civil authority over nonmembers on non-Indian fee land.

The Nation also argued that there was a consensual relationship because the hotel was an "Indian trader" which had gotten the required license to do business with the Nation. The Court did not decide whether being an "Indian trader" was enough to justify a tax on activities arising out of that relationship. It decided instead that the relationship in question was between the Nation and the guests at the hotel. The fact that the hotel itself may have had a relationship did not imply that the guests had the same relationship. The Court noted that the guests could reach the hotel over non-Indian public rights of way.

In Hicks, the Court held that the general rule of Montana applies to both Indian and non-Indian land. The Court also decided that state authorities have "inherent" power to enter tribal lands for investigative purposes. In addition, the Court found that tribal courts have no jurisdiction over claims arising under 42 U.S.C. § 1983 (federal civil rights claims).

Analyzing the Montana issue, the Court stated:

The ownership status of land...is only one factor to consider in determining whether regulation of the activities of nonmembers is 'necessary to protect tribal self-government or to control internal relations.' It may sometimes be a dispositive factor....But the existence of tribal ownership is not enough to support regulatory jurisdiction over nonmembers.

The Court concluded that when state interests outside the reservation are involved, States may regulate the activities of Tribe members on tribal land. In this case, the State's interest in executing a search warrant is "considerable," while allowing the State to execute the warrant does not harm the Tribe's ability to govern itself any more than federal enforcement of federal law hurts state government.