Native American sovereignty meets a bend in the road: Difficulties in Nevada v. Hicks

Brigham Young University Law Review, 2002 by Reed, Melanie

The path the Supreme Court has forged with regard to tribal sovereignty has meandered through a variety of landscapes with little predictability. The Court finally established a guiding light for determining tribal jurisdiction in the 1980s through the seminal case, Montana v. United States,1 but since that time has taken several turns in the road. Most recently, in Nevada v. Hicks,2 the Court ventured away from the security of known paths by redefining and limiting the scope of tribal sovereignty in two ways. First, the Court's recharacterization of the traditional approach for determining tribal authority over nonmembers outlined in Montana resulted in a constriction of the Court's precedent regarding the role of land ownership and Montana's exceptions. Second, the Court's limit of tribal authority to try federal 1983 claims suggests that tribes may be limited in adjudicating certain federal claims in their own courts.

This Note begins with a discussion of Native American judicial authority, addressing both tribal jurisdiction over nonmembers and tribal jurisdiction over federal claims. Part II briefly explains the factual and procedural background of the Nevada v. Hicks decision. Part III analyzes the Court's application of the Montana test and the exhaustion doctrine to determine the tribe's jurisdiction in Nevada v. Hicks. Part IV critiques this analysis, while Part V suggests possible routes that the Court may take in the future, especially with respect to the importance of land status under Montana. Part VI concludes that the Court's constriction of these tests leaves tribes with little recourse against nonmember civil offenders. I. THE FEDERAL LAW FRAMEWORK OF TRIBAL JURISDICTION

lishes a foundation for understanding tribal jurisdiction over nonmembers by first discussing tribal jurisdiction over acts of nonmembers and then evaluating general tribal jurisdiction over federal claims.

A. Tribal Authority over Nonmembers

the Court has nonetheless emphasized that tribes retain many rights of internal self-government, including "the power to punish tribal offenders,. . . to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members."7

Despite the fact that Indian tribes retain authority over internal aspects of tribal government because of their inherent sovereignty, Congress and the Court have abrogated the tribes' authority over nonmembers.8 This section will focus on tribal jurisdiction over civil acts by nonmembers. It will first analyze tribal regulatory authority over nonmembers under the test established in Montana v. United States,9 highlighting two exceptions to this test. It will next look at tribal adjudicatory jurisdiction.

1. Tribal regulatory authority over nonmembers

Court has not created a bright-line rule for tribal jurisdiction over nonmember defendants in civil actions. Instead, the Court has created a general common law framework for evaluating tribal jurisdiction in civil proceedings. Montana v. United States12 serves as the baseline.

extend to the activities of nonmembers of the tribe."14 Because the tribe's regulation of nonmembers on their fee lands "bore no clear relationship to tribal self-government or internal relations, the general principles of retained inherent sovereignty did not authorize the Crow Tribe to regulate the non-Indian fishing."15 Thus, the Court set forth a general rule that tribes have limited power to regulate nonmember conduct on non-Indian fee land within a reservation.

First, a tribe might retain civil authority over a nonmember on an Indian reservation when that nonmember enters into a consensual relationship with the tribe.19 Second, a tribe might retain civil authority over a nonmember when that nonmember's "conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."20

a. Montana's consensual relations exception. The Montana Court relied on Williams v. Lcc21 as authority for its first exception. In Williams, a non-Indian who operated a store on the Navajo Indian Reservation brought suit against tribal members in state court to recover the cost of goods sold.22 The Court found that the state court had no jurisdiction to adjudicate the suit because the transaction took place on the reservation. Recognizing its history of "guard[ing] the authority of Indian governments over their reservations,"23 the Court emphasized that state adjudicatory authority would "infring[e] on the right of reservation Indians to make their own laws and be ruled by them."24

quently hold that a relationship must involve commercial dealings in order to be viewed as a consensual relationship under this exception."

b. Montana's political integrity exception. Although the Montana Court's language suggests the second exception could be quite broad, "the Supreme Court has limited the general holding to activities that the United States considers critical to tribal self government, and to internal relations."27 A tribe might be able to assert authority in order to protect its political integrity in only a few situations-the punishment of tribal offenders, the determination of tribal membership, the regulation of domestic relations, the prescription of rules of inheritance.28