A-1 Contractors etal v. William Strate

Lyle CONTRACTORS; A-1

Stockert, Appellants, STRATE, Associate William

Honorable of the Court Judge Tribal Tribal Gibson, Judge, filed Circuit Floyd R. Bert of the Fort Tribes Affiliated Three McMillian, Beam dissenting opinion which Reservation; Affiliat Three Indian hold joined. Judges, Murphy, Circuit Fort Berthold Tribes of ed dissent- McMillian, Judge, filed Circuit Lyndon Court; Reservation, Tribal Beam, Gibson, Floyd R. ing opinion which Fred Fredericks; Lee Kenneth Benedict joined. Judges, Murphy, Circuit Fredericks; Hans ericks; Jonas Paul Fredericks; Pius Freder Jeb Christian Fredericks, Appellees.

icks; Gisela

No. 92-3359. Appeals, States

United

Eighth Circuit. May 1995.

Submitted 16, 1996.

Decided Feb.

HANSEN, Judge. Circuit case, decide wheth- asked to we are In this has sub- Tribal Court American er an a tort case jurisdiction over ject matter accident out of automobile which arose par- two non-Indian which occurred between A divided Indian reservation. on an ties concluded previously this court panel of sover- the inherent tribe retained the Indian to exer- the tribal court eign power to allow dis- jurisdiction over the subject matter cise A-l suggestion of granting the After pute. rehear this Lyle and Stoekert Contractors banc, opinion. panel we vacated case en court does hold that the tribal nowWe the dis- jurisdiction over pute.

I. 9, 1990, highway on a state On November in Indian Reservation the Fort Berthold on Dakota, gravel a truck North west-central by driven A-l Contractors owned (an and a small employee) A-l Lyle Stoekert collided. Fredericks driven car Gisela injuries and serious Fredericks suffered Mrs. days. is a non- A-l hospitalized for was Dickinson, North company located of the a is not member Stoekert Dakota. Dickinson, Dako- North and resides tribe is not a member Mrs. Fredericks ta. however, the reserva- tribe; resides on she tion, member to a tribal she was married (now deceased), are adult children her Dakota, Bismark, Ward, North J. Patrick tribe. members of the enrolled brief), (Michael Fiergola, on the argued G. appellant. for accident, work- A-l was time of the theAt Colorado, Boulder, ar- McCoy, Melody L. under subcontract ing reservation a on Town, Walk, (Urban New Bear Don’t gued J. corpo- Corporation, a agreement with LCM Dickson, Bis- A. and Thomas North Dakota Under the wholly the tribe. owned ration brief), Dakota, ap- marck, for North excavating, subcontract, performed A-l pellee. in connec- recompacting work berming, and commu- tion with the construction ARNOLD, S. Chief RICHARD Before of the work budding. performed all nity A-l McMILLIAN, GIBSON, Judge, R. FLOYD boundaries within the the subcontract under MAGILL, WOLLMAN, BOWMAN, FAGG, not clear The record reservation. HANSEN, LOKEN, BEAM, MORRIS under engaged work Stoekert was MURPHY, whether ARNOLD, and SHEPPARD accident.1 time of the contract en banc. Judges, Circuit support the (as find in the record we can allegations) proof opposed to 1. There is no May A-l, Mrs. Fredericks sued Appeals took broad view of the tribe’s Stockert, and Continental Western Insurance over the non-Indians involved (A-l’s insurer), Company in the Tribal Court dispute: in this for the Three Affiliated Tribes2 of the Fort Like sovereign, Three Affiliated Berthold Indian Reservation. Mrs. Freder- Tribеs has [sic] an interest in providing a icks’ adult children also filed loss of consor- forum for peacefully resolving disputes part tium claims as of the suit. Mrs. Freder- that arise in their geographic icks her adult sought damages children protecting rights of those who are personal excess million for injury, $18 injured within such consortium, loss of expenses. and medical Slip op. at 7. Continental Western was dis-

A-l, Stockert, and Continental Western missed from the case prejudice without pur- special amade appearance tribal court and suant agreement to an of parties. the suit, moved to dismiss the Frederickses’ con tending that the personal tribal court lacked proceedings Before resumed the tribal subject jurisdiction. and matter The tribal court, trial A-l and Stockert filed this case court denied the and motion found that it had in the United States District Court for the personal subject jurisdiction and matter over District of North against Dakota Mrs. Fred- brought suit the Gisela Fredericks. Fred (hereinafter ericks and her children “the Co., ericks Continental Western Ins. No. Frederickses”), the Honorable William 5-91-A04-150, 1.24(d) (Fort slip op at Bert- Strate, Associate Judge Tribal for the Tribal 1991). Sept. hold Tribal Ct. Specifically, Court of the Three Affiliated Tribes of the the tribal court personal found that it had Fort Reservation, Berthold Indian and the jurisdiction parties over the Chap based on tribal court itself. A-l sought and Stockert ter section 3 of the Tribal Code because injunctive declaratory аnd They relief. Mrs. Fredericks ais resident of the reserva asked the district court to that declare the tion and A-l because had “entered and tribal court no had over this mat- transacted business within the territorial ter, enjoin the proceed- Frederickses from boundaries of the Reservation.” Id. at ing against court, them the tribal and to 1.24(c). The tribal court also concluded that enjoin judge the tribal and the tribal court subject it had matter over the (hereinafter defendants”) the “tribal from as- action because inherent sovereignty serting jurisdiction over them. had not been limited treaty or federal 1.24(d). statute. See id. at Given the tribal The tribal initially defendants raised the court’s conclusion that it had affirmative defense of sovereign immunity, over the claims Fredericks, of Gisela the subsequently but consented to the suit for tribal court did question not reach the of its the limited purpose defending of the federal jurisdiction over consortium claims injunctive law claims for relief. Both sides brought by children, her who were tribal filed summary motions judgment for on the members. issue jurisdiction. of tribal court The district A-l, Stockert, court summary and denied judgment Continental Western motion appealed Stockert, to the of A-l Northern and granted and Plains Intertribal it of Appeals. summary judgment The Court of Intertribal motions Freder Appeals the tribal affirmed court and ickses and re- the tribal defendants. A-1 Con manded the case Strate, to the tribal for fur- tractors v. court Civil No. A1-92-94 (D.N.D. proceedings. ther 17, 1992). Fredericks v. Sept. Continental The district court Co., Western Ins. Northern Plains Intertribal only decided that dispute factual was (Jan. 8,1992). Ct.App. The Intertribal Court whether Mrs. Fredericks on resided or off finding district court’s Mandan, fact A-l Hidatsa, that was in 2. The Three Affiliated Tribes— performance of federally recognized the contract at the time of the Ankara —are Indian sovereignty tribes which federally approved accident. The exercise their district court under a made its fact-find- ings adopted pursuant case, pleadings based constitution on the in this Reorganization to the Indian upon Act of the evidence. U.S.C.§§ 461-479. Bourland, was irrelevant (1993); Brendale 2309, 2320, 124 L.Ed.2d Id. at 4-5. court of tribal issue Bands Tribes the tribal then court decided district Confederated Nation, 426- subject matter personal Yakima had both court 2994, 3005-06, tribes that Indian and concluded jurisdiction, argue (1989) to exer A-l and Stockert (plurality). inherent have retained action causes of no such involves over civil this case that because cise holding reser arise on the interest, court erred the district between by treaty or juris subject limited matter specifically had vation unless tribal court that the district 9-10. Id. at dispute. statute. The Frederickses federal this diction treaty stat no (collectively there was “the court found defendants the tribal in this tribe’s limited ute that line of Su a different argue that appellees”) appealed Stockert A-1 and at 10. case. Id. this issue. authority governs preme Court issue language from argue that appellees of Mrs. Fredericks.3 claims court that the district cases indicates line of correctly concluded the district affirmed this court panel A all authority over jurisdictional A-1 Contrac decision. in two-to-one reservation, regard arising on disputes 666051 Strate, 1994 WL No. tors v. tribal 1994). involved are parties 29, (8th A-l and Stockert less of whether the Nov. Cir. v. See, Ins. Co. e.g., en Mutual panel’s decision Iowa review of members. requested 971, 9, 94 LaPlante, request, 107 S.Ct. vacated 480 U.S. granted their banc. We rehearing (1987); Farmers Union case for National set this 10 .opinion, and L.Ed.2d panel Indians, 471 U.S. v. Crow Tribe Ins. Cos en banc. of (1985); 2447, 818 845, 85 L.Ed.2d 105 S.Ct. II. Tribe, 455 U.S. Apache v. Merrion Jicarilla 894, 901-02, 21 L.Ed.2d 130, 137, 102 71 S.Ct. district novo the review de We 217, Lee, 79 (1982); 358 U.S. Williams denying granting both court’s decision (1959). appel- 269, The L.Ed.2d 251 3 Club, Away Inc. summary judgment. Get correctly district court that the Cir.1992). lees contend (8th 664, Coleman, 666 F.2d 969 geographical/ter had full that the tribe found this court that the district agree with We dispute. The this jurisdiction over ritorial for disputes factual presents no relevant case largely our review presented for presented, issue only question our review. of deal generated great and has jurisdiction over unresolved tribal court whether the See, commentary. e.g., Allison interest FMC v. of law. dispute, question is a this Dussias, and Mem 1311, Geographically-Based Tribes, 905 S. F.2d Shoshone-Bannock Sover denied, Indian Tribal bership-Based Views Cir.1990), (9th cert. 499 1313-14 of (1991). Changing Vi Court’s Supreme 1404, eignty: 459 943, L.Ed.2d 111 S.Ct. (1993) (detailing and sion, 55 U.Pitt.L.Rev. our presented for question specific increasing Supreme Court’s criticizing the court has is whether the resolution sovereignty). membership-based emphasis on arose be- dispute which jurisdiction over this Fort parties on the two non-Indian tween view, articulated In the standards our ar- A-l and Stockert Reservation. Berthold States, v. United Montana law, case Supreme Court gue that under (1981), and L.Ed.2d 101 S.Ct. sovereign inherent not have the tribe does standards, applying those cases subsequent jurisdiction over authority to exercise civil dispute. of the resolution control implicates dispute unless ad Montana, specifically Supreme Court See, e.g., Montana important tribal interest. tribal civil the reach of dressed States, 450 U.S. v. United that: parties found non-Indian (1981); v. over South Dakota 67 L.Ed.2d juris- courts’ the tribal court addressed district of Mrs. Fredericks' claims 3. The consortium appeal part be- of this those are not a claims. adult diction children the federal courts nor the tribal cause neither the Indian tribes retain their dependent tribes, status of the and so power determine membership, cannot survive express without congressional regulate domestic among relations mem- delegation”); County Yakima v. Confeder bers, prescribe and to rules of inheritance ated Tribes and Bands Yakima Indian for members. But exercise tribal power Nation, 251, 267, 112 692- beyond necessary protect what is (1992) 116 L.Ed.2d 687 (citing Montana self-government or to control internal rela- in referring “long to the line of cases explor tions is dependent inconsistent with ing very powers narrow reserved to tribes, status and so cannot survive tribes over the conduct of non-Indians within express congressional without delegation. reservations”); their Reina, Duro v. (citations Id. at 101 S.Ct. at 1257-58 676, 687-88, 2053, 2060-61, omitted). The Court then announced (1990) (criminal jurisdiction case general principle that “the inherent sover reciting Montana’s observation that “the in eign powers of an Indian tribe do not extend sovereign herent powers of an Indian tribe to the activities nonmembers of the tribe.” do not extend to the activities of nonmem 565, 101 Id. at S.Ct. at 1258.4 bers of the tribe” juris and that civil tribal tribes, however, do “retain in diction over non-Indians on the reservation sovereign herent authority to exercise some typically involves situations forms of civil over non-Indians on property ownership within the reservation or added). their reservations.” Id. the “consensual relationships” outlined in (1) This arises: when nonmem Montana), overruled statute on other bers relationships “enter consensual with the grounds, 1301(2) (3); § U.S.C. & Bren members, tribe or through commercial dale, 426-27, 109 492 U.S. at S.Ct. at 3005-06 contracts, dealing, leases, or arrange other (plurality) (following principles (2) ments” or when a nonmember’s “conduct concluding there nowas tribal which interest threatens or has some direct effect on the the allowed tribe to exercise over political integrity, the economic security, or nonmembers on fee lands within the reserva the health or welfare of the tribe.” Id. at tion). Perhaps the Court’s emphatic most 565-66, (citations omitted). 101 S.Ct. at 1258 reiteration of these standards is its recent These two are exceptions” situations the “two Montana, statement that “after tribal sover to general Montana’s rule that an Indian eignty over nonmembers ‘cannot survive tribe does not have sovereign pow express without congressional delegation.’” ers over the activities of nonmembers. Bourland, 508 U.S. at 695 n. 113 S.Ct. at Bourland, 695-97, 508 U.S. at 113 at S.Ct. 2320 n. 15. view, 2320. In our the tribal court in this ease subject would not jurisdic matter appellees argue The that apply- instead of tion under appellees Montana the unless can ing analysis, Montana the we should resolve establish the existence aof tribal interest Supreme case under the Court’s deci- under exceptions. of the two either Mutual, sions in Iowa National Farmers Union, Lee, Williams v. In Supreme Merrion. Court has reiterated or reaf- view, our none of those analysis supports firmed the cases Montana of the civil tribal appellees’ jurisdiction that over contentions the a tribal court non-Indians number Bourland, times. broad the civil 693-95, 508 at U.S. 113 at S.Ct. (reasserting centrality 2319 tribal courts and the district found court Mutual, in this In observation Montana that ease. Iowa “exercise Court held power beyond tribal only necessary what is to that exhaustion of tribal remedies is protect self-government required or to control before a federal district can internal tribal relations is inconsistent with decide the issue of federal court way: 4. Stated another "A (plurality) tribe’s inherent (citing sover- at 3005 United States Wheel- eignty er, ... is 313, 326, divested to 1079, 1087-88, the extent it is inconsis- U.S. 435 S.Ct. 98 55 status, is, tent dependent with (1978)). the tribe’s that The tribe's external rela- the extent it involves the tribe’s generally 'external rela- involving tions are those nonmembers ” Brendale, 425-26, tions.’ 492 at U.S. 109 S.Ct. of the tribe. See id. Montana under authority over 977-78; see at at say goes on Likewise, the Court when n. Brendale, at 427 U.S. also pre- activities such jurisdiction over (the specifically “[c]ivil plurality 10n. at 3006 S.Ct. courts unless in the tribal sumptively lies only established Mutual Iowa observed treaty pro- specific by a affirmatively limited wheth- decide and did not rule an exhaustion statute,” (emphasis add- id. non- federal vision or over tribe had er the tribe’s referring to a ed), again involved). conclu- reaching its the Court members activities jurisdiction over tribal-based requirement, civil exhaustion sion on recently upon Montana. We following observation exists under offered the just case in heavily: Iowa Mutual rely interpreted the appellees which fashion, stating: “Civil such a non- the activities authority over Tribal on reservations activities tribal-related impor is an lands on reservation Indians unless lies the tribal presumptively sovereignty. See Mon part of tant treaty pro- by specific affirmatively limited States, 450 U.S. v. United tana Ener- Duncan by stаtute.” or federal vision L.Ed.2d 1245, 1258-59,67 S.Ct. Tribes, 27 F.3d gy v. Three jur omitted]. Civil Affiliated (1981) citations [other added) Cir.1994) (citing (8th presumptively activities over such isdiction at Mutual, 480 U.S. at Iowa affirmatively courts unless in the tribal lies 977-78). Hence, not be should Iowa Mutual treaty or provision specific limited category activities expand the read statute. federal giving rise to described Mutual, Iowa non- over non-Indians language that this argue appellees 977. The Instead, it within we read members. retain unrestrict- tribes that Indian indicates parameters of Montana. jur- unless that ed territorial affirmatively limited has been isdiction Union, Mu like Iowa Farmers National appellees con- statute. treaty or federal which did tual, case was exhaustion state, full retains the tribe like a tend jurisdiction over tribes had whether decide matters all 427, 109 Brendale, nonmembers. until unless reservation Nonetheless, appel- 10. at 3006 n. appellees law. federal is divested National should read that we contend lees Mu- Iowa with argue consistent that further on the reach aas limitation Union Farmers may tual, exercise the tribal Farmers Un National because Montana it ease because in this jurisdiction Suquam Oliphant the reach of limited ion and there happened on reservation the 1011, Tribe, 191, 98 S.Ct. ish of the tribe’s divestment no affirmative been (1978), juris a tribal criminal 55 L.Ed.2d authority. In relied. Montana upon which case diction tribal that had concluded Court reading Oliphant, this view, appellees’ In our non- jurisdiction over have no criminal un- Mutual is from Iowa language isolated did not retain the tribe prin- Indians because ‍​​‌‌​​​​​​‌​​​​‌‌​‌​‌‌‌‌‌​‌‌​‌‌‌‌​​‌​‌​​​‌‌​‌​‌​‍with necessarily and conflicts broad type of that authority to exercise Iowa inherent language This ciples of Montana. U.S. at jurisdiction. 435 nar- more be read should can and Mutual Farmers in The Court National set 1020-22. principles harmony with in rowly and question “the whether that stated Montana, Union Court cites which the forth civil power to exercise court has tribal When making those observations. non-Indians jurisdiction over subject-matter au- “[t]ribal Mutual in Iowa observes automatically kind is not case thority the activities over Oliphant would foreclosed, extension of as an part of important is lands reservation 855, 2453. 105 S.Ct. at 471 U.S. at require.” 480 U.S. at sovereignty,” Farm- argue that National appellees and thus Montana cites the Court extend Oli- to the Court refused activities, con- ers Union types of like referring to the sovereign au- (the phant ’s limitation first relationships contractual sensual thority to civil cases. to give rise exception), appellees recognize fail to remains intact." 455 U.S. at 148 n. specifically 102 S.Ct. at 907 n. 14. The Court made the fact that Montana extended the dealing general principles underlying Oliphant observation in isolation in a case with to authority impose jurisdiction. Montana, the tribe's to a severance civil 450 U.S. at ("Though Oliphant only tax on non-Indians on the reservation. The 101 S.Ct. at 1258 power authority Court found this taxation was derived determined inherent tribal in crimi power matters, principles either from the tribe's inherent of self- nal support the general proposition on which it relied government power exclude, or the to id. at that the in sovereign powers 102 S.Ct. at both of which are herent of an Indian tribe powers do not extend to the activities of nonmem consistent with the inherent the tribe retains over nonmembers described in Mon- tribe") (footnote omitted). bers of the Mon say Oliphant tana. Both Me'rrion and Iowa Mutual essentially tana did not extend the full ratio thing: jurisdictional question- the same the inherent at- nale to the civil tributes of that an Indian tribe completelyprohibited which would have retains, very which under Montana are limit- Instead, over nonmembers. dealing non-Indians, ed when with remain Court found that the tribe retained some civil affirmatively intact unless limited the fed- nonmembers, which the government. eral Court went on to describe in the Montana exceptions. appellees argue 450 U.S. at 101 S.Ct. at that Montana and Thus, apply only abifity 1258-59. when National Farmers Un Brendale to a tribe's authority ion states that civil tribal over exercise over non-Indians' activities by Oliphan4 lands-i.e., plots nonmembers is not foreclosed on non-Indian fee of land perfectly simple hap- that observation is consistent with owned non-Indians in fee pen Montana, provides to be located within the exterior bound- for broader tribal view, aries of the reservation. appellees place In our over non-Indians than does Oli phant. Montana, an artificial limitation on Under the tribe has the those cases. While Montana and Brendale abifity to exercise civil over non- (as questions Indians when tribal interests defined in address of tribal lands, exceptions) non-Indians on non-Indian owned fee the Montana are involved. neither case limits its discussion or rationale appellees We also read the other cases the jurisdictional issues on fee lands. rely upon within the limits of Montana. Williams, the Court found that the tribal contrary, found, To the the Montana Court any qualification whatsoever, without courts had over a suit a non- power may beyond tribal necessary not reach what is Indian store owner on the reservation protect self-government against two members of the tribe for breach or to control hiternal relations absent ex of contract based on a transaction that oc press congressional delegation. 450 U.S. at 564, 101 S.Ct. at 1257-58. Montana also curred on the reservation. 358 U.S. at 269-70, 79 5.Ct. at 272. This factual specifically jur addressed the "forms of civil squarely situation fits under the "consensual isdiction over non-Indians on their reserva agreement" test for in Montana provided tions" and the two limited situa (the exception). fact, first Montana In Mon jurisdiction may tions in which that arise. specifically creating tana cited Williams in Id. at 101 S.Ct. at 1258 add exceptions juris the two that allow for civil ed). Thus, explicitly Montana addressed the diction over non-Indians. 450 U.S. at 544- jurisdic of tribes to exercise civil 45, 101S.Ct. at 1247-48. tion on the as well as on non- Similarly, appellees plurality the read too Indian fee lands. The Brendale language Me'rriom, regulation much into from where the noted that Montana involved Court stated in a footnote: "Because the lands, specifically fee but it did not limit the Tribe retains all inherent attributes of sover disputes. Montana rationale to fee land Brendale, See eignty that have not been divested the 492 U.S. at 109 S.Ct. at Government, proper Brendale, Supreme Federal the inference 3005-06. Since the sovereign power Court likewisehas not seen fit to limit either from silence ... is that the spoken above, have those cases have noted ap- the the fashion in or Brendale Montana unquali in and broad Instead, about civil the suggested. have pellees of the dis any limitation without terms observa fied and their these cases discussed jurisdic civil aspects of particular cussion to in broad about tions the other Likewise, Mutual Bourland, Iowa 508 tion. See language. unqualified sug never rely on have 2319; County appellees cases the at S.Ct. at fact, in Iowa 692-93; a distinction. gested such 267, 112 at Yakima, without Mutual, cites Montana the Court 2060-61. S.Ct. at Duro, be limit should that Montana any indication analyzing of cases Moreover, number Mutual, Iowa regulatory toed land dis- in non-fee issues jurisdictional civil 18, 107 at 977-78. cited Montana. upon or have relied putеs F.2d Taylor, 964 Corp. v. Stock West See Moreover, any attempt to create or banc) Cir.1992) (en (quoting (9th 918-19 apply regulatory juris a distinction between jurisdictional land in non-fee test Montana adjudicatory jurisdiction diction and in this (citing FMC, at 1314 F.2d dispute); illusory. case would be If the tribal court leading as “the case land in non-fee Montana suit, essentially acting tried this it would be non-Indi- civil on tribal case adjudicatory capacity regu in both an latory capacity. and a Partners, Ltd. v. ans”); Tamiami also see argument, At oral all of the Florida, 999 Indians Tribe Miccosukee parties agreed that if the tribal court tried Cir.1993) (citing (11th n. 11 F.2d case, power this it would have the to decide recognizing Montana applies. Essentially, what substantive law exercise power to have legal the tribal court would define the rela Indians affecting the interests conflicts tionship respective par and the duties of the lands). Thus, conclude we highways. ties on reservation roads and of Montana the rationale attempt to limit Thus, adjudicating dispute, while jurisdictional issues to fee land Brendale regulating tribal court also would be by the unsupported uncompelling and is both legal conduct of drivers on the roads and highways that traverse the reservation. Ac two cases. language of those should argue that we next appellees cordingly, we see no basis in this case for addressing of cases line read applying regulatory-adjudicatory distinс power over regulatory appellees proposed. tion the Mutu- Iowa represented line of cases Furthermore, applied regula- even if we adjudicatory power addressing tribal al as tory-adjudicatory distinction, it would not Iowa They contend non-Indians. change cases, our conclusion. None of the control would and related cases Mutual including appellees argue those that the are dispute about tribal case, is a "adjudicatory jurisdiction" cases, have ever assert appellees power. The adjudicatory presented addressed the issue here-a tribal be would a distinction drawing such court's civil over an accident in- they see as what way to resolve best volving parties. non-Indian As we have dem- language between apparent contradiction above, appellees' pro- onstrated all of the differing of cases. lines those posed "adjudicatory" cases are consistent dis- disagree. While must Again, we with the Montana case. Even if we were to appears propose appellees tinction "regulatory" authority treat Montana as a Dussias, see, 55 commentaries, e.g., some case, apply princi- we see no reason not to 43-78, does distinction at U.Pitt.L.Rev. ples open question to this of inherent author- any- implicitly, or even explicitly, appear not ity adjudicatory jurisdiction to exercise civil and the law. Montana the ease where dispute. Thus, over this we see no valid with have dealt following Montana cases Montana, distinguishing limiting basis for jurisdic- regulatory civil tribal questions of appellees suggest. as the suggested tion, have never cases but those regu- solely to reasoning is limited Arguably, language their that some of the Williams, contrary, as we Quite latory matters. from Iowa Mutua4 and Merrion can be viewed in isolation to create tension interpretation broad jurisdiction civil tribal is, with Montana. A reading believe, careful we inconsistent with Montana. particular language cases, however, of those authority quite is clear that they indicates that can and should be read the kind the American Indian together with Montana to establish one tribes retain is a limited sovereignty, and comprehensive integrated and rule: a valid thus the authority exercise of over nonmem tribal interest must be at issue before a bers of the tribe “is necessarily inconsistent may jurisdiction exercise civil with a dependent tribe’s Brendale, status.” nonmember, over a non-Indian or but once 492 U.S. at 109 S.Ct. at (citing established, interest is pre- Wheeler, United States v. 313, 326, sumption arises that jur- tribal courts have S.Ct. 55 L.Ed.2d 303 isdiction over the non-Indian or nonmember (1978)). Stated way, another “the inherent jurisdiction unless affirmatively is limit- sovereign powers do not extend to the activi ed federal law. supported This rule is ties of nonmembers Montana, of the tribe.” by the authority аbove and leading 450 U.S. at at quoted law, treatise American Indian spe- Reina, Duro v. 110 S.Ct. at cifically states: “Tribal probably lack such, 2060-66. As we cannot endorse the jurisdiction over civil involving eases only appellees’ concept of plenary tribal territorial situations, in most it since (or geographical) civil Such a would be difficult to establish direct im- concept presents an overly interpreta broad pact on property.” Indians or their Felix tion of the tribe’s sovereignty which is incon S. Cohen’s Handbook Federal sistent with dependent the tribe’s status and (1982 Law, ed.). 342-43 well-accepted This contrary Thus, to Montana for the tribe rule controls this case. jurisdiction exercise over nonmem bers, the exceptions Montana must be satis Finally, appellees urge us to follow a fied because “inherent of sov attributes recent decision in factually a case very simi- ereignty” do extend to nonmembers. case, lar to this where the Ninth Circuit held the tribal court had over the While the tribe’s Mahler, lawsuit. See Hinshaw v. F.3d to assert civil over a nonmember (9th Cir.1994). Hinshaw, depends Christian on the existence of a tribal interest injuries Mahler died from he Montana, when a received defined that does not mean car by Lynette driven Hinshaw geography collided with plays no role the sovereignty motorcycle Mahler riding jurisdictional was on a U.S. inquiry. “The Court has highway within the boundaries of the Flat- repeatedly emphasized that signifi there is a head Indian Reservation. Both Mahler and geographical cant component to tribal sover Hinshaw were residents of the eignty.” Apache White Mountain Tribe v. they but were not Bracker, members of the tribe. Id. 136, 151, (an at 1180. Mahler’s mother mem- (1980). enrolled 65 L.Ed.2d 665 In Mon tribe) (a ber of the tana, Mahler’s father non- the Court accounted for geographi member) brought wrongful death surviv- component cal jurisdictional analysis orship actions in the tribal court. Hinshaw when it stated that “Indian tribes retain in challenged the tribal personal court’s herent sovereign power to exercise some in federal district forms of civil over non-Indians on court. The Ninth Circuit affirmed reservations, the dis- their even on non-Indian fee trict court’s conclusion that the tribal court lands.” 450 U.S. at had added). over those claims. Id. implicitly rec 1180-81. To the extent sup- ognizes Hinshaw that without the geographic connec ports appellees’ arguments tion to Indian country, the would tribes courts have over a plausible tort claim grounds no asserting jurisdic for arising between two high- non-Indians on a tion Thus, over the parties. non-Indian way running through reservation, an Indian properly understood, geographical com we respectfully decline to follow ‍​​‌‌​​​​​​‌​​​​‌‌​‌​‌‌‌‌‌​‌‌​‌‌‌‌​​‌​‌​​​‌‌​‌​‌​‍it. Such a ponent jurisdictional of impor- analysis is therefore, dispute dispositive. generally and the conduct in here tant but not Bracker, See necessarily politicalintegri- affects the tribe's 448 U.S. at 100 S.Ct. at 2587- ty, security, (gеographical component economic or health or welfare. of tribal sover- appellees dispute eignty important-though dlispositive The contend that the af- weigh determthing political integrity factor for courts to fects the tribe's because it abifity deals with the tribe's to function as a whether a state's to tax non-Indi- fully sovereign government. disagree. aus for activities on reservation has been We view, nothing pre-empted). In our this case has to do with ability govern the Indian tribe's its own affairs under tribal laws and customs. It IlL only deals with the conduct of non-Indians Applying case, Montana to this ability and the tribe's asserted plenary judicial authority to exercise (as there must be a tribal interest at issue decidedly over a exceptions) defined in the Montana before only governmental non-tribal matter. The the tribal court can exercise alleges right interest the tribe is the to act as parties. the non-Indian We concludethat no sovereign sovereign a full authority to exercise full such tribal interest exists in this case. This happen over events that within its dispute arose between two non-Indians in geographical above, boundaries. As noted ordinary

volved in an run-of-the-millautomo sovereigns pos- tribes are limited and do not bile accident that occurred on a North Dako sovereign powers. Thus, sess full this desire highway traversing ta state the reservation. protect excessively to assеrt and claimed sov- facts, case, Those which stand alone in this ereignty satisfactory is not a tribal interest dispute distinctively make this non-tribal in meaning within the of the second Montana nature. exception. appeilees argue The that the "con appellees argue also that even relationship" (the sensual test first Montana though Mrs. Fredericks is a non-Indian and exception)is satisfied because A-i voluntari tribe, long-time nonmeniber of the she is a ly entered into a subcontract with the tribe resident of the reservation and hence is an Lyle employee Stockert was an A-i who community imbedded member of the with a allegedly pursuant was on the reservation to recognizable social and economicvalue to the that subcontract when he was involvedin the community. Thus, they argue that it is accident with Gisela Fredericks. In our provide critical to disputes. her a tribal forum for her view, reasoning dispute is flawed. The simple fact that Mrs. Freder- simple personal injury in this case is a tort reservation, however, icks is a resident of the accident, claim from an automobile satisfy excep does not the second Montana dispute arising of, not a under the terms out political tion. It is not essential to the tribe's of, or within the ambit of the "consensual agreement," i.e., the subcontract between the integrity, security, economic or health or wel provide her, fare to a non-Indian and non tribеs and A-i. Gisela Fredericks was not a member, judicial with a forum for resolution party subcontract, to the and the tribes were disputes. of her A forum is available to Mrs. strangers to the accident.5 courts, Fredericks in the North Dakota state appe]lees argue and there is no indication that she would be also that the exception prevented asserting claims, full, second Montana is satisfied be her dispute in that forum.6 cause the arose on the 5. A-i and Stockert have noted that under the 6. There has been some discussion of the effect of case, § terms of the subcontract involved in this all 28 U.S.C. 1360 on of the North section, by very disputes arising Dakota state courts. That out of the subcontract would be terms, applies only jurisdic- determined under Utah law and would be heard to the state court's parties. tion over actions to which Indians are appellees in the Utah courts. The have not ar- (similar jurisdictional § See also 25 U.S.C. provision gued contrary. However, give to the we will not Rights Act). of Indian Civil Because any controlling weight this fact because the sub- we have found that this case does not involve part contract is not of this record. ap- n parties, simply those sections do not Likewise, the fact that Mrs. Fredericks to exercise jurisdiction bring wants to her suit in the tribal dispute this through its tribal court. Accord- does not control. very clearly ingly, we reverse judgment of the district states that giving the conduct rise to the сase court. must threaten or a have “direct on the effect political integrity, security, economic or BEAM, Circuit Judge, with whom FLOYD tribe,” health or welfare not the non- GIBSON, of R. McMILLIAN, MURPHY, member, before the tribe can assert civil Judges, join, Circuit concurring and jurisdiction over nonmembers. 450 U.S. dissenting. 566, added). 101 S.Ct. at I concur in the court’s “comprehensive and persuasive Nor is it to us that Mrs. Freder- integrated” rule that “a valid tribal interest icks may be as being close to a member of must be at issue before a tribal may the tribe as she be actually could without jurisdiction exercise civil over a non-Indian being a very member. Montana is clear that nonmember, or but once the tribal interest is tribal membership is of importance. critical established, presumption arises that tribal Mrs. Fredericks is neither an Indian nor a jurisdiction courts have over the non-Indian member of the tribe. The fact that Mrs. or jurisdiction nonmember unless that is af- Fredericks has not been to admitted mem- firmatively limited federal law.” Supra at bership in places the tribe her outside the dissent, 938-939. I however, from the reach of the tribe’s authority, ab- application court’s of the rule in this case and separate sent some showing of a direct effect from the implication that a tribal court has ease, tribe. this appellees have jurisdiction no in a civil case unless the dis- completely failed to show that the tribe’s pute involves an Indian aor member ability govern protеct to its own members tribe. would directly damaged be if the tribe cannot The concept assert of “tribal Thus, over this interest” ad lawsuit. vanced appears the court exception second to to be a free- Montana does not floating theory apply. wholly geo detached from

graphic reality except in a most attenuated way. I IV. dissent this ideation of tribal it contrary because is to Bren stated, Simply this case is not about a dale v. & Tribes Bands Confederated consensual relationship with a tribe or the Nation, Yakima Indian 408, ability tribe’s govern itself; to it all about 2994, (1989); L.Ed.2d 343 Iowa the tribe’s claimed power govern to non- LaPlante, Mut. Ins. 9, Co. Indians and nonmembers of just the tribe (1987); 94 L.Ed.2d 10 National they because enter territory. By tribe’s Farmers Union Ins. Co. v. Crow Tribe of remaining within the principled approach of Indians, Montana, the tribe ability retains the (1985) cases, and other earlier govern itself because tribal court will say nothing States, of Montana v. United whenever a “tribal interest” 67 L.Ed.2d 493 dispute in a is established. Under Iowa (1981), the heavily case most upon by relied Mutual, where such exists, interest the court. is broad requires affirmative change in federal law limit it in A legitimate judicial system arises as an any way. Because we have concluded that of sovereignty. Indeed, attribute “the exis no tribal interest as defined Montana tence and jurisdic extent a tribal court’s ease, exists in we conclude that the tribe require[s] tion ... a careful examination does not retain the inherent sovereign power tribal sovereignty.” National Un Farmers ply to this case. We applicable, note that even if U.S. (North (1986) 106 S.Ct 90 L.Ed.2d 881 those sections would tend to indicate that the attempt Dakota’s to disclaim uncondition- North Dakota state courts have al state court over civil aris- claims this case. See Three Tribes the Fort Affiliated ing invalid). country in Indian held

Berthold Engineering, Reservation Wold

942 some or has direct ‘threatens that all conduct Ac- 865, at 2453. S.Ct. 105 ion, at 471 U.S. economic integrity, the political on the effect tribal court of any determination cordingly, or welfare health security, the or parts the of requires examination the circum- depends tribe,' on instead but they how sovereignty and tribal pieces of and 429, 109 Brendale, at 492 U.S. stances.” equation. jurisdictional fit within the that suggests Thus, Brendale at 3007. S.Ct. to of Indians Historically, the connection exception second Montana’s of meaning the law. of Indian course shaped the has land the factors. on depends various but static is not v. of Geor- Worcester case landmark In the suggest further cases All of these 557, Pet.) 515, 483 (6 8 L.Ed. 31 U.S. gia, politi- in a tribe’s role a vital plays geography recognized as were (1832), nations Indian and security, health integrity, economic cal communities, having terri- political “distinct strongly con- welfare, must be therefore and their authori- boundaries, which within torial sec- of any application Montana’s sidered right to all having a еxclusive, and ty trib- Indian or not exception, whether ond not boundaries, which is those within lands dispute. parties to are al members by the guaranteed acknowledged, but only Lee, 358 U.S. v. In Williams geo- States.” support United to the lends Even Montana (1959), the 269, 251 L.Ed.2d 217, 3 jurisdic- 79 S.Ct. tribal court of component graphic of Indian importance recognized Court stated: Supreme Court The tion. jurisdic- of question decided the when it land retain inherent sure, Tribes Indian be [t]o by a court brought in state a case over tion forms of some exercise power sovereign to custom- against Indian merchant non-Indian their jurisdiction over civil been case should Holding that the ers. reservations, fee lands. non-Indian even on court, “[i]t stated the Court brought in tribal 565, (emphasis at 1258 101 S.Ct. at U.S. 450 an Indi- not respondent is is immaterial its added). cited in Montana The Court and Reservation on the He was an. Wheeler, States holding in United earlier place there.” took an Indian with transaction 1079, 313, 55 98 S.Ct. 272. Id. at are Tribes (1978) noted that Indian the Court recent cases in more possessing Even attributes ‘“unique aggregations to geography of significance recognized the their members both of ” Mazurie, 419 sovereignty. In U.S. tribal territory.’ their added). its (1975), noted that the Court L.Ed.2d here, court finding no recognized that consistently had cases to membership as “critical” tribal describes sovereign “attributes retain tribes Indian Supra at holding in Montana. the Court’s their territo members and ty their over both oversimplifies characterizatiоn Such 941. added.) v. Jicaril Merrion (Emphasis ry.” member- Montana, role tribal overstates Tribe, Apache la of tribal in a determination plays ship his (1982), a tribe’s explores L.Ed.2d terri- role of understates others to exclude power toric product of was integrity. Montana torial lands. nature factors, including the several application and the question regulation al- would a rule supports Brendale fully recog- It land. regulation to fee territory in that consider to a court

low of a and nonmembers that non-Indians in a nized given interest determining the tribe’s integrity, eco- political can tribe affect suggests in Brendale plurality case. a tribe welfare of security, health deciding nomic whether approach case-by-case The Mon- circumstances. the proper under confers tribal exception second Montana’s jur- two tribal establishment Court’s wording the sec- tana precise to whol- and its refusal “exceptions” writes, isdiction indicates plurality exception, the ond Oliphant1 holding ly extend extend authority need not tribe’s “a Suquamish Indian Oliphant v. non-Indians. held courts Oliphant, the 1. In jurisdiction over validly criminal assert could jurisdiction demonstrates the cogni- Court’s state may exercise zance of the influence of non-Indians and some civil causes of action on reserva- tribal real estate on self-government. tion lands. scope jurisdic- of state court tion by is limited the Williams v. Lee “in- strongest One of the interests that fringement” test: “whether the state action tribe advances in this case is its interest infringe[s] right on the of reservation Indians providing a forum plaintiff. And, for this to make their own laws and be by ruled question of North Dakota juris- state court 220, them.” 358 U.S. at 79 S.Ct. at 270-71. diction is not as clear-cut sug- as the court jurisdiction State court disclaimed, cannot be fact, gests. jurisdiction In such is doubtful. at least where there is no other forum in important points Two are relevant this bring which to an action. Three Affiliated First, 280, issue. Public Law 28 U.S.C. Tribes the Fort Berthold Reservation v. of 1360, not, § does for reasons other than II, Eng’g Wold 877, 2305, those court, advanced bear (1986). 90 L.Ed.2d 881 ing on this issue. 6, supra In footnote Thus, question 940, of whether a North explains the court § that 28 U.S.C. 1360 Dakota state court provide can a applies forum only for to which actions Indians are Mrs. depends Fredericks upon parties. whether original state 280, Public Law how jurisdiction in this ever, instance infringe would applied to all “civil causes of action.” upon the right tribe’s government. to self 15, 1953, See Act Aug. 280, of 505, Pub.L. ch. agree Commentators seem to (codified 67 Stat. state 588 as amended 18 courts have jurisdiction 1162, § U.S.C. §§ 25 U.S.C. 28 suits against non-Indians, 1360); § U.S.C. see Cohen, also Felix S. even when the claim arises in Indian Coun- Handbook Federal Indian Law 362-63 of try, long so (1982 as Indian ed.). interests are not affect- original Act, Under the assump See, Cohen, (“The ed. e.g., scope 352 jurisdiction tion of of was mandatory for some preemption of state laws country Indian оptional states and others, for including generally does not extend to having matters North Dakota. 1968, It was not until when no Indians, direct on tribes, effect their prop- amendments to Public Law 280 were enact- erty, or federal ed, activities. these situations assumption jurisdiction state of was state courts have their jurisdiction normal limited to actions to which par- Indians were over non-Indians and ties, property, their both in subject to tribal consent. North Dakota cases.”); criminal Hansen, ‍​​‌‌​​​​​​‌​​​​‌‌​‌​‌‌‌‌‌​‌‌​‌‌‌‌​​‌​‌​​​‌‌​‌​‌​‍Sandra had chosen to jurisdiction assume civil before Survey Civil Jurisdiction in Indian adopted,2 amendments were of but had vol- 1990, Country 16 Am.Indian L.Rev. 346 untarily conditioned upon con- (1991). sent of the tribes. § N.D.Cent.Code 27-19- (1991). 01 The tribes of the Fort Berthold have, however, Three Affiliated Tribes did not reservation consent. Three Affiliated adopted a tribal code which outlines civil Tribes the Fort Berthold Reservation v. court within the exterior bound- I, Wold Eng’g 467 aries which, of the reservation and in the (1984). Thus, North Dakota absence of federal law contrary, to the im- has no over the Fort Berthold poses custom, tribal law and not North Da- § reservation under 28 U.S.C. 1360. kota law, statute or common controlling My point second is more relevant to precedent occurring for torts within the res- question of a state court to ervation. See Tribal Code of the Affil- Three assume a cause of action iated Tribes of the Fort Berthold Reserva- on Indian reservation. Even (1980); ab- tion § Ch. see аlso Cohen 334- sent statute, conferred federal 35. Tribe, jurisdiction, 55 L.Ed.2d Public Law preserved jur- it all (1978). previously acquired isdiction under the Co- Act. hen, 363 n. 126. 2. As explains, Cohen although Felix the amend- any prospective ments altered assumption of securing the execution itself, the means case, state Thus, in this dangers than other against laws its own of self right tribe’s infringe upon the

would day. every Courts occur provide right to those including the government usually em- most the means forum, are justice available only forum, indeed expect, is reasonable to it ployed; acci the reservation. resident its own repose on should government over which land occurred dent in on others. courts, than sovereignty and rather territorial asserts tribe brought driver truck a non-Indian volved Wheat.) (6 Virginia, 19 U.S. Cohens con by a commercial reservation onto (1821). case does This 5 L.Ed. employer. his and tribe the between tract As extraordinary occurrence. an present non- awas Fredericks though Mrs. Even notes, case involves this majority opinion the the reserva on long Indian, resided had she acci- automobile run-of-the-mill ordinary “an (now de spouse a tribal member tion with opinion majority at 940. Ante dent.” children of adult ceased) the mother and is ability adjudi- to the tribe today the denies Had tribe. of the members are enrolled who that occur disputes of type the basic cate Indian, an been participant accident either these tеrritory unless daily within reservation the on accident of the situs the re- Such a members. tribal involve disputes juris court clearly tribal dictated would ability to tribe’s the with striction interferes Brendale, Mu Iowa in as established diction its compromising abili- by affairs manage its and Mon tual, Union Farmers National hap- who members non-tribe ty to deal with tribal tana. land. tribal havoc on pen to wreak the I dissent claim. Fredericks’ Mrs. underlying analysis and the that I believe contrary. ruling to the court’s have no rele in Montana forth set rationale a tribe’s of the narrow context GIBSON, Judge, with vance outside Circuit R. FLOYD by non- lands owned regulate fee BEAM, ability E. to McMILLIAN, and DIANA whom 557-67, 101 S.Ct. dissenting. U.S. at join, Judges, Indians. MURPHY, Circuit rule of such, the I limit would As 1254-59. Judge McMillian’s Judge with agree I the rely on instead its facts case to that to ex- separately I write dissents. Beam’s sovereignty inherent scope of broad unduly nar- dismay at Court’s my this press Mutual. as Iowa in such eases outlined type sovereignty.” “limited of view row 18, 107 977-78.1 S.Ct. at atU.S. by this sovereignty” allotted “limited of fact, no real sover- is, in the tribe to Court of the reach that if I were convinced Even at all. eignty majority this of as the broad is as Montana be, I believe it to believes in terms of inherent framed Whether and, such, as interests implicates Insurance Mutual case Iowa sovereignty under two of the Mon- either 9, 18, 107 under LaPlante, squarely falls v.Co. this case (1987), I believe that exceptions. tribal inter 977-78, or tana 94 L.Ed.2d un- States, relationship” test the “consensual meets v. United Montanа ests under it 1258-59, because exception the first der A-l’s consensual of adjudicate result (1981), as a direct power arose See the tribe. nation’s a contacts with occurring within commercial everyday disputes Had at 1258-59. basic among the most territory is own Corpora- LCM sovereign with A-l not subcontracted manifestations indispensable tribe, by the wholly owned tion, corporation observed: Marshall a Justice As Chief power. a tribal on work construction perform in to so defective to be ought government No boundaries community building within within contain not to organization, attributes all inherent retains cause the Tribe of non- activities over the Tribal 1. divested not been that have important lands is reservation Indians on Government, proper inference Federal sovereignty. Civil part of tribal power sovereign re- that the from silence lies presumptively in activities over such intact. mains affirmatively limited unless tribal courts quotation omitted. Citations and Be- treaty provision statute. specific or federal reasons, the accident would never For the aforementioned I would majority claims that have occurred. The affirm the order of the district court. (as proof opposed allegations) there is “no finding support ... the district court’s McMILLIAN, Judge, Circuit with whom performance A-l was in

fact GIBSON, BEAM, FLOYD R. and DIANA contract at the time of the accident.” Ante MURPHY, join, E. Judges, Circuit I, however, fail note 1. to see dissenting. why grav- plausible explanation other as to A-l, el truck owned a non-Indian-owned join Judge I opinion concurring Beam’s company, was on tribal land at the time of part dissenting part, particularly collision. Because I believe emphasis importance geogra- clearly accident arose as the result of A-l’s phy territory analyzing issues of tribal relationship consensual with the tribe and its sovereignty. separately I write to set forth members, I retains the believe the tribe why the reasons I would hold that the federal sovereign power to exercise civil court, courts, district correctly and the tribal jurisdiction over A-l under first Mon- decided that the tribal court has mat- exception. tana ter over this reservation-based I also believe that the tribe retains the tort action between non-tribal members. power inherent to exercise civil excep- disputed A-l There are no issues of under the second Montana fact rele- A-l’s conduct vant to the tion because on tribal land issue. None of the parties “threatens or has some direct effect on the are tribal members. Gisela Freder- political integrity, security, reservation; the economic or icks is a resident of the the health or of the tribe.” 450 U.S. driver, Stockert, welfare Lyle truck employ- and his 566, majority at 1258-59. S.Ct. The er, Contractors, residents, A-l are not but dismisses the tribal interests at stake here as performing A-l was work on the reservation protect excessively a “desire assert and agreement under a subcontract with LCM sovereignty.” pre- claimed Ante at 940. As Corp., corporation wholly a owned observed, however, viously ability of a tribe, in connection with the construction of a sovereign, sovereign, adju- even a limited community building. tribal Because the acci- everyday dicate the affairs and accidents oc- dent occurred within the exterior boundaries curring provide within its borders and a fo- highway right- of the on a state rum for its citizens is one of the most basic of-way,1 the cause of action arose on the indispensable aspects sovereignty. per- reservation. The tribal code establishes political Aside the threat the tribe’s subject ap- sonal and majority integrity, opinion unfairly also plies tribal law and custom. discounts the effect of A-l’s conduct on the legal presented, issue tribal court civil health and welfare of the tribe. Ante at 940- jurisdiction, question is a law federal sub 941. While the immediate victim of the colli- See, ject e.g., to de novo review. v. sion, Fredericks, FMC Gisela is not a member of Tribes, 1311, tribe, F.2d Shoshone-Bannock longtime she is nonetheless resi- (9th Cir.1990), denied, 1313-14 cert. 499 U.S. dent the reservation whose husband and (1991). 943, 1404, 111 S.Ct. 113 L.Ed.2d 459 adult children are enrolled tribal members. properly presented issue To claim that A-l’s conduct on tribal land had no effect on the health or of the for determination on the merits. Tribal rem welfare exhausted, simply tribе is unrealistic and not in accor- edies have been and we have the appellate dance with the facts. of the trial and benefit concerned, face, Rights-of-way part only country” § 1. [18 U.S.C.] are of “Indian as 1151 is on its (“Indi- § defined an federal law. 18 U.S.C. 1151 jurisdiction, [Supreme] with criminal country” includes "all land within limits recognized generally applies that it well to of United reservation under the of the the questions jurisdiction.” of civil DeCoteau v. Dis- government, notwithstanding States Court, 425, 2, County trict 427 n. and, any patent, including rights-of- issuance of 2, (1975). 1085 n. 43 L.Ed.2d 300 reservation”). way running through the “While (1993). Thus, Vision, “In 55 U.Pitt.L.Rev. as that of the federal opinions as well courts’ sovereignty ‘attributes of dian tribes retain court. district ’ territory their members and their over both court has civil the tribal I would hold sovereignty has not been to the extent presumption jurisdiction because treaty.” by federal statute or withdrawn sovereignty, Mon- favor of inherent Mutual, Iowa involving only fee to issues applies tana Mazurie, citing United States lands, more than a establishes Iowa Mutual remedies, rule of exhaustion added). (1975) (emphasis In Law does not of Federal Indian Handbook only sovereignty “exists at the herent tribal issue, definitively and state resolve Congress and is to com sufferance of preclude tribal court jurisdiction does not acts, Congress But until plete defeasance. Finally, I would hold that even sovereign existing tribes retain their forum for applies, providing if Montana sum, possess powers. Indian tribes still actions, where tort even reservation-based sovereignty aspects of not withdrawn those non-Indian, falls within both parties are statute, treaty by implication as a or exceptions. dependent status.” necessary result of their TRIBAL SOVEREIGNTY INHERENT Wheeler, 435 U.S. at United States majority opinion in would extend added). Implicit di at 1086 sovereignty activities over the herent tribal sovereignty has been vestiture of non-members, di consent or some absent necessary only found the tribe. I remain convinced rect effect on of tribal where the exercise applies, that opposite presumption that the overriding inconsistent with the would be “[cjivil is, jurisdiction over such activities Government, as interests of the National in the tribal courts unless presumptively lies foreign engage to when the tribes seek by specific treaty pro affirmatively limited relations, alienate their lands to non-Indi- Iowa Mutual In vision or federal statute.” consent, prosecute or ans without federal 9, LaPlante, 18, 107 v. 480 U.S. surance Co. in tribal courts which do not (1987) (Iowa 971, 977-78, 94 L.Ed.2d 10 S.Ct. protections Bill of accord the full of the Mutual). Mahler, v. 42 F.3d See Hinshaw Rights. (9th Cir.) (tribal 1178, jurisdic 1180-81 Washington v. Tribes Col by brought tribal member on tion over action Confederated 134, 153-54, Reservation, 447 100 ville U.S. against member child behalf of non-tribal (1980) (foot 2069, 2081, L.Ed.2d 10 65 S.Ct. arising car accident out of non-tribal member omitted). — note denied, U.S.-, reservation), on cert. (1994). 485, policy favoring self-gov- 130 L.Ed.2d 398 115 S.Ct. The federal “ operates even in areas ernment where powers оf possess Indian tribes ‘inherent affirmatively state control has not been sovereignty which has never been a limited “[Ajbsent pre-empted by federal statute. Wheeler, extinguished.’” United States v. governing Congress, question Acts of 1085-86, 313, 322, 1079, 55 435 98 S.Ct. U.S. always been whether the state action (1978) omitted), (emphasis citing L.Ed.2d 303 infringed rights on the of reservation Indi- Cohen, of Federal Indian Felix S. Handbook and ruled ans to make their own laws be ed.). (1942 Supreme 122 Court has Law by them.” signif- repeatedly emphasized that “there is a Mutual, 14, at 107 at component to sover- Iowa 480 U.S. S.Ct. geographical icant Lee, 217, 975, citing v. 358 U.S. eignty.” Apache Mountain Tribe v. Williams White 269, 270-71, Bracker, 136, 151, 2578, 220, 79 3 L.Ed.2d 251 100 S.Ct. S.Ct. 448 U.S. (1959). (1980) all inher- (pre-emption “Because the Tribe retains 65 L.Ed.2d 665 sovereignty have not acting attributes of authority over non-Indians on ent of state Government, reservations). by generally been divested the Federal See Allison Dussias, proper inference from silence ... Geographically-Based M. sovereign power ... intact.” remains Membership-Based Views Indian Tribal Tribe, Apache Changing Merrion v. Jicarilla Sovereignty: Supreme Court’s 14, 894, 14, 130, competing regulatory 102 S.Ct. 907 n. authorities were 148 n. (1982). state, L.Ed.2d 21 tribe and the each of which asserted regulate hunting fishing ground for divestiture of inher- There is no by non-members within the reservation. The present case. ent tribal framed Court the issue terms of “the treaty provision or statute specific No federal scope power sources and of an Indian affirmatively limit the has been shown regulate hunting fishing by tribe to non- Affili- tribal courts of the Three power of the Indians on lands within its reservation over civil actions that arise on ated Tribes ” simple by owned in non-Indians. and the exercise of tribal fee at (emphasis over a tort action on U.S. S.Ct. at 1249 added), the reservation between non-members does at 101 S.Ct. at 1254. The Su- relations, foreign implicate preme alienation held prohib- that the tribe could land, prosecution criminal of non-Indi- hunting fishing or the it non-members from or land, ans. land owned tribe trust id. at 1254, and, if per- S.Ct. the tribe AT ISSUE STATUS OF LANDS mitted non-members to fish or hunt on such States, First, Montana v. United lands, entry by charging could condition their (1981), 101 S.Ct. establishing bag a fee or and creel limits. Tribes & Bands Brendale Confederated However, Id. the Court held inherent tribal Nation, 408, ‍​​‌‌​​​​​​‌​​​​‌‌​‌​‌‌‌‌‌​‌‌​‌‌‌‌​​‌​‌​​​‌‌​‌​‌​‍109 the Yakima Indian sovereignty over the reservation did not ex- (1989) (Bren 2994, 106 L.Ed.2d 343 regulation fishing tend to tribal of non-Indian dale), Bourland, and South Dakota hunting on reservation land owned in fee 2309, 124 L.Ed.2d 606 by non-members. Id. at (1993) (Bourland), controlling. are not 1257-58. The Court admitted that “Indian attempts by involved Montana and Brendale sovereign power tribes retain inherent regulate the tribes to the activities of non- exercise some forms of civil land, is, on fee land owned members reservations, their non-Indians on even on reservation; within the Bour- non-members non-Indian lands.” Id. fee land involved lands taken the federal added). at 1258 The first Mon- government for the construction of a dam exception recognizes regulatory tana tribal The distinction land reservoir. between authority over non-members who enter con- conveyed pursuant in fee to non-Indians to relationships sensual with the tribe the Indian General Allotment Act of excep- members. Id. The second Montana Stat. which was intended to eliminate expressly recognizes tion a tribe’s “inherent the reservations and assimilate the Indian power to exercise over the conduct non- Bourland, or, peoples, by in land taken the Indians on lands within its reservation fee by government, and land the federal owned that conduct threatens or when has some by gov- tribe or trust land the held federal integrity, political direct effect on the the in for individual ernment trust the tribe or security, economic or the health or welfare of tribe, members of the is fundamental to the added). (emphasis the tribe.” Id. If inher- Montana, analysis in Brendale and Bour- juris- sovereignty civil ent tribal can include present land. The does not involve fee ease diction over non-Indians on fee lands within by government land or land taken the federal reservation, juris- it include civil the should reason, public for use. For that I would diction over non-Indians on tribal land or Montana, apply exceptions, only and its to trust land within the This is reservation. by fee lands owned non-tribal members. more re- because tribal reading opin- A close Justice Stewart’s stricted on fee land than on tribal or trust ion for the Court in Montana demonstrates land. importance geographical the or territorial sovereign- status of the land at issue to tribal Brendale also involved fee lands within the reservation; ty analysis. analysis competing regulatory au- The Court’s differenti- the by again the and the ated between fee lands and lands owned thorities were once tribe (or, county). precisely, in one The the tribe or held trust for the tribe. The state more Cir.1994) (Montana (9th exceptions scope of the second was the presented issue is, “whether, only and to after the court concludes are “relevant exception, extent, proteetible inter- general has a divestiture of the tribe that there has been what taking place by are authority in activities over non-Indians alien- est what fee and, if it has the reservation land”). land within Blackmun would ation of the Justice interest, may protected.” how it be such to upheld the tribe’s exclusive at 3008 at 109 S.Ct. land, lands, including fee zone reservation added). zoning applied ordinance The tribal in part in and dissented and thus concurred reservation, within the all lands located 448-68, at Id. part. at County. in Yakima located part of which was 3017-27. all zoning applied to county ordinance The regulatory In Bourland competing the au- county, except for the lands located within again once the tribe and the thorities were of the reservation lands. Most tribal trust lands, however, At issue were not fee state. land, to as the referred was tribal trust that had former trust and feе lands been but area”; located rest was fee land “closed by for construction taken the United States in a checker- through out the reservation control. of a dam and reservoir for flood mostly part in one pattern but board “opened” taking authorization also The “open area.” to as the referred use, including taken land for recreational de- county approved proposed two had large. hunting fishing, public at in open area and one velopments, one Montana, sought regulate the tribe As area, lands owned non- closed on fee hunting fishing by non-members on the tribe, that conflicted with members of the reservation, including the land taken for zoning The tribe sued ordinance. project. The state filed suit to flood control development and chal- stop proposed excluding enjoin tribe from county’s zoning authority over the lenged the hunting fishing on the taken lands reservation. Court, in an within the reservation. The was divided. judgment of the Court Thomas, opinion by held that Con- Justice White, Court, opinion in an Justice legisla- gress, enacting the flood control county zoning application of the ordi upheld tion, abrogated right had the tribe’s under open nance to the fee land located within treaty to exclude non-Indians the relevant treaty language, id. at area, under both the 687-89, from the taken lands. 3003-05, and the Mon at 2316. The Court also held that analysis. tana sovereignty inherent tribal did enablе the Id. Howev 109 S.Ct. at 3005-09. hunting regulate non-Indian and fish- tribe to Court, er, opinion by in an Justice Ste ing in the taken area the absence of vens, zoning upheld application of the tribal in or statutes evidence the relevant treaties land located within the ordinance to the fee Congress to allow the tribe to that intended 433-47, 109 closed area. Id. at at 3009- S.Ct. Id. at regulatory assert such (differentiating charac between “essential Court, 693-97, 113 S.Ct. at 2319-20. noting open of closed and areas and ter” however, the case for further con- remanded by non open area was at least half-owned the tribe retained the sideration whether members, had lost its character as an exclu regulate to non-Indian matter, resource, and, practical sive tribal fishing in hunting and the taken area under integrated part county that is had become exceptions. Id. at the two culturally by economically or delimited at 2320. Justice Blackmun dissent- boundaries). Although opin reservation would have held that the tribe had ed and decisions for different ions reach different authority regulate hunting to non-Indian reasons, important it is to note fishing in area because the the taken authority regulatory dispute involved the affirmatively statutes did not abro- relevant development of fee lands and not land control gate treaty rights or inher- either the tribe’s in trust for the owned the tribe or held Morongo ent tribal Id. sovereignty. at ex rel. United States tribe. Cf. Rose, Band Mission Indians v. F.3d at 2323-24. S.Ct. OF TRIBAL REMEDIES EXHAUSTION HANDBOOK OF FEDERAL INDIAN LAW Next, National Farmers Union Insurance The landmark treatise definitively does not Tribe, Cos. Crow resolve this issue. majority As noted (National (1985) 2447, 85 L.Ed.2d 818 Farm- opinion, Felix S. Cohen’s Handbook of Fed- Union), ers and Iowa Mutual do not estab- (1982 ed.) eral Indian 342-43 Law does state only requiring of exhaustion lish rule “[tjribal probably jurisdiction lack jurisdiction in courts to determine their over civil involving only eases non-Indians in of exhaustion first instance. The rule estab- situations, most since it would be difficult to prem- lished in National Farmers Union establish impact direct on Indians or upon ised decision that tribal civil the Court’s However, property.” their another section jurisdiction over non-Indians is not automati- supports jurisdic- the Handbook tribal civil cally by Oliphant Suquamish foreclosed tion over non-Indians: Tribe, Indian S.Ct. Indian regulatory tribes retain civil (1978) (holding legisla- federal judicial jurisdiction over non-Indians. The jurisdiction conferring tion on federal courts jurisdiction extent of tribal civil over non- try non-Indians for offenses committed in Indians, however, fully is not determined. country implicitly pre-empted Indian had Analysis of the actions of each of the non-Indians). jurisdiction tribal criminal over three federal branches demonstrates that recognized National Farmers Union that an jurisdiction civil over non-Indians has not requirement exhaustion would have been su- been withdrawn and that the exercise of perfluous possibility if there were no of tribal jurisdiction such is consistent with the civil over non-Indians. 471 U.S. depеndent tribes’ under status federal (because at 2452-53 if Oli- [contrary law.... the civil field to the phant applied, always federal courts would matters], Congress rule criminal only against be the forums for actions civil general legislation never sup- enacted non-Indians). National Farmers Union ply a disputes federal state forum for thus did not foreclose tribal court between Indians and non-Indians in Indi- dispute involving over a civil a non-Indian Furthermore, country. although trea- defendant. Id. government ties between the federal (school defendant). district Iowa Mutual not Indian required tribes sometimes tribes to only reaffirmed the rule of exhaustion estab- surrender non-Indian criminal offenders lished National Farmers Union but also authorities, to state or federal Indian “[tjribal expressly stated provision treaties did not contain for trib- the activities of non-Indians on reservation relinquishment al of civil important part lands is an of tribal sover Congress’ regulate non-Indians. failure to “[cjivil eignty” and that over such country sug- presumptively activities lies in the tribal gests jurisdictional both there no was affirmatively spe courts unless limited Congress vacuum to fill and that was less treaty provision cific or federal statute.” 480 civil, jur- non-penal concerned with tribal Brendale, 18, 107 977-78; atU.S. S.Ct. at see isdiction over non-Indians with than 492 U.S. at 454-55 n. 109 S.Ct. at 3020-21 liberty personal over the (Blackmun, J., concurring part n. 5 non-Indians. dissenting in part). This is an affirmative recognition jurisdiction gov- that tribal court civil branch of the federal executive against long assumption over reservation-based tort actions ernment has acted on the part may subject non-Indians is of inherent tribal sover that Indian tribes Otherwise, eignty. point jurisdiction. Although there would be no to civil the Attor- requiring ney in exhaustion of tribal remedies to General and the Solicitor of the De- permit partment opined the tribal courts evaluate the factu of the Interior have since legal juris- challenges al and bases of to their 1834 that Indian tribes lack criminal jurisdiction non-Indians, opinions because the tribal courts would diction over several jurisdiction. upheld jurisdiction. never have tribal civil 950 jur- attempt of a state’s to assert its civil terms

Attorney sustained tribal General authority on over the conduct of non-Indians comprehensive A 1934 in 1855. isdiction denied, see, reservation, usually which is Department of the Opinion of the Solicitor Lee, 217, e.g., Williams all the that “over Interior concluded of the 269, attempt opposed to a tribe’s to assert reservation, by owned whether lands of the authority the conduct of non- its civil over thereof, tribe, by out- members usually which is Indians on the siders, sovereign power has the the tribe See, e.g., City Timber Lake v. upheld. upon determining the conditions Tribe, 554, Cheyenne 10 F.3d River Sioux permitted to its be enter persons shall Cir.1993) (8th (reserving inherent tribal therein, domain, and to do busi- to reside — issue), denied, cert. U.S. ... ness.” (1994). 2741, -, 129 L.Ed.2d 861 example, in the landmark case For [the tribes’] retained The breadth v. Leе the Court held that state Williams in civil matters power over non-Indians jurisdiction an action court did not have over finally resolved.... has not been operated brought by a non-Indian who general on a reservation to recover store presumptively has an interest A tribe “the money goods for sold to Indians because belonging on lands to the tribe or activities jurisdiction cir [under exercise of state members, tribal control over Indian so cumstances] would undermine can be the basis for extensive trust land over affairs of the tribal courts Reservation infringe right over non-Indians in civil and hence would ownership, govern Regardless of land Indians to themselves.” matters. 223, 272; can 79 S.Ct. at Cowan v. Rosebud within reservations cf. (D.S.D. Tribe, F.Supp. Sioux based on transactions between non- also be 1975) (upholding tribal court over Indians and Indians or tribes or on non- against of tribal tribe’s suit non-Indian lessee directly activities that affect Indi- land). property. ans or their TRIBAL SELF-GOVERNMENT omitted). (footnotes Id. at 253-57 Neither excerpt definitively resolves the issue of trib- Finally, assuming purposes of even for brought a civil suit al court analysis that limited to dis- Montana is not against lands, a non-Indian from a tort oc- putes involving a “consensual rela- fee curring tionship” on the reservation. A-l and existed between Stockert and the tribe virtue of the subcontract STATE COURT JURISDICTION meaning of within the the first Montana possibility of state court addition, allegedly exception. In tortious preclude does not tribal court conduct of A-l and occurred on a Stockert Mahler, 42 F.3d at 1180 See Hinshaw v. highway right-of-way on the reserva- state (concurrent and tribal state tion. This conduct non-Indians within the occurring civil matters on Flathead certain threatened the interest reservation tribe’s Reservation, including operation of motor ve operation the safe of motor vehicles on the roads), public citing hicles on Larrivee highways roads and on the reservation. See Morigeau, 184 Mont. 602 P.2d 566- Mahler, 1180; Hinshaw v. F.3d cf. (1979) denied, (same), cert. Lodge Sage v. School District No. Grass (1980). (Crow 64 L.Ed.2d 240 How Ct.App. L.Rep. 13 Indian ever, jurisdiction may preclude 1986) (remand tribal court following Farmers National jurisdiction, particularly Union; state court where by motorcycle student hit on school ‍​​‌‌​​​​​​‌​​​​‌‌​‌​‌‌‌‌‌​‌‌​‌‌‌‌​​‌​‌​​​‌‌​‌​‌​‍lot; the tribe has established parking legitimate interest tribe has adopted provides per a tribal code which for safety protecting health and of school chil- reservation). non-Indians, subject jurisdiction over attending sonal dren school within affording matter over torts on the The tribe also has an interest application injured of tribal law. those who have been on the reserva- judicial particularly This is true if one views the tion with a forum. This interest issue admittedly compared to the safe abstract However, disre-

operation of motor vehicles. courts, jurisdiction of tribal

garding the self-govern- play a vital role

ment, undermines their over reser- imperils and to that extent

vation affairs integrity of the tribe.

political reasons, I would affirm the or-

For these holding of the district court the tribal

der

court has tort action

this reservation-based between

non-tribal members. MAHERS, Plaintiff/Appellee A.

Ronald

v.

Sally HALFORD, Chandler

Defendant/Appellant.

Gary SNOW, Plaintiff/Appellee, Dean

v. HUNDLEY; Sally

Thomas Chandler

Halford; McVeigh, Ruth

Defendants/Appellants.

Roger HOFF, Gene VAN

Plaintiff/Appellee, HUNDLEY, Defendant/Appellant.

Thomas Ray MABRIER, Ralph Meyer, Jody

Scott Stokes, Johnson, Jimmey

L. Kannis Lee

Cook, Clark; A. Mid William E. James

dleswart, Reed, Plaintiffs/Ap Nathan D.

pellees, DEPARTMENT

IOWA OF CORREC

TIONS, Sally Halford, Chandler Charles

Lee, Thalacker, Burns, John Mona Ste Wolmutt, Defendants/Appellants.

ven

No. 95-1516. Appeals,

United States Court of

Eighth Circuit.

Submitted Oct. 1995.

Decided Feb. 1996.

Case Details

Case Name: A-1 Contractors etal v. William Strate

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Feb 16, 1996

Citation: 76 F.3d 930

Docket Number: 92-3359

Court Abbreviation: 8th Cir.