The Montana Exceptions and Civil Authority Over Non-Members
The Supreme Court holds that a tribe's inherent sovereign powers do not reach the conduct of non-members. Two exceptions survive that presumption, and both have been read narrowly enough that the exception is now the harder argument to make.
The rule in short
Under Montana v. United States, the inherent sovereign powers of a tribe do not extend to the activities of non-members. A tribe may regulate non-members who enter consensual relationships with the tribe or its members through commercial dealing, contracts, leases or other arrangements, and may regulate conduct that threatens or directly affects the political integrity, economic security, or health or welfare of the tribe. Both exceptions require a nexus to the regulation asserted.
Montana v. United States began as a dispute about hunting and fishing on the bed of the Big Horn River and ended as the organizing principle of tribal civil authority. The Court held that the Crow Tribe could not regulate non-member hunting and fishing on fee land within the reservation, and stated a rule broad enough to reach far beyond river beds.
The presumption the case created
The rule as stated is that the inherent sovereign powers of an Indian tribe do not extend to the activities of non-members of the tribe. That is a presumption rather than a prohibition, but it starts the analysis in a position that any assertion of authority must overcome, and the burden of overcoming it falls on the party claiming jurisdiction.
The reasoning proceeds from the idea that tribes retain those aspects of sovereignty not withdrawn by treaty, by statute, or by implication as a necessary result of their dependent status. Authority over internal relations — membership, domestic relations among members, the conduct of tribal government — survives untouched. Authority over outsiders is what the Court treats as inconsistent with dependent status unless something specific supports it.
Consensual relationships and the nexus requirement
The first exception permits a tribe to regulate, through taxation, licensing or other means, the activities of non-members who enter consensual relationships with the tribe or its members through commercial dealing, contracts, leases or other arrangements. The list is illustrative, and employment relationships, service agreements and supply contracts all qualify in principle.
What defeats most invocations of the exception is not the absence of a relationship but the absence of a connection between the relationship and the regulation. In Atkinson Trading Company v. Shirley the Court struck down a hotel occupancy tax imposed on guests of a business on non-Indian fee land, holding that the tribe's provision of services to the area did not create the required consensual arrangement with the guests themselves. In Strate v. A-1 Contractors the contractor had a subcontract with a tribal entity, but the traffic accident that produced the suit had nothing to do with it. The regulation must arise out of the arrangement.
The jurisdictional question is one of federal law, and a federal court decides it independently once the exhaustion of tribal remedies is complete. Litigants sometimes treat a favorable tribal appellate ruling as settling the matter. It settles the tribal law questions; the Montana analysis is reviewed afresh.
The second exception and how narrow it is
The second exception permits a tribe to exercise civil authority over conduct that threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Read literally it could absorb the rule, and the Court has said so, describing the exception as reserved for conduct that imperils the subsistence of the tribal community rather than merely injuring a member.
Plains Commerce Bank v. Long Family Land and Cattle Company is the sharpest illustration. A bank that had dealt extensively with a member-owned ranch sold reservation fee land it had acquired, and the tribal court entered judgment on discrimination claims. The Court held that neither exception supported jurisdiction over the sale of fee land, distinguishing the tribe's authority over the parties' dealings from any authority over the alienation of land the tribe no longer owned.
Where land status enters the analysis
Montana arose on fee land, and for a period the framework was understood as a fee land rule. Nevada v. Hicks disposed of that reading, applying the analysis to conduct on tribal trust land and holding that a tribal court lacked jurisdiction over state officers executing a search warrant for an off-reservation offense. The opinion was careful to say that the holding was limited to that setting, and lower courts have divided over how far it travels.
What survives is a framework in which ownership matters as evidence rather than as a rule. On tribal trust land a tribe has the power to exclude, and several circuits treat that power as an independent source of regulatory authority over those who enter by permission. On fee land inside the reservation, and on state rights-of-way that the Court has treated as equivalent to fee land, the presumption operates at full strength.
| Setting | Land status | Exception argued | Result in the leading case |
|---|---|---|---|
| Non-member hunting and fishing | Fee land within the reservation | Both | No tribal authority |
| Traffic collision involving a contractor | State highway right-of-way | Consensual relationship | No nexus, no jurisdiction |
| Hotel occupancy tax on guests | Non-Indian fee land | Consensual relationship | Tax invalid |
| State officers serving process | Tribal trust land | Direct effects | No tribal court jurisdiction |
| Bank's sale of acquired reservation land | Fee land | Both | No jurisdiction over the sale |
Drafting and litigating around the rule
Because consent supplies what inherent sovereignty does not, the reliable route to tribal jurisdiction is a written one. Leases, construction contracts, financing agreements and employment terms routinely include a consent to tribal court jurisdiction and a choice of tribal law, and courts enforce those provisions on ordinary contract principles. The same instinct explains why a counterparty negotiating with a tribal enterprise pays attention to what counts as a waiver of sovereign immunity, since a forum clause without a waiver leaves a plaintiff with a court and no defendant.
On the regulatory side, the framework does not disturb the separate federal statutes that operate on their own terms. A state or county objecting to a proposed acquisition of land into trust is arguing about jurisdictional consequences that flow from land status rather than from Montana, and a challenge to the terms of a gaming compact is governed by the statute that authorizes it. Montana answers a narrower question, and answering it usually means identifying precisely which regulation is asserted against precisely which conduct.
Points to carry away
- The presumption is against tribal civil authority over a non-member, and the party asserting jurisdiction carries the burden.
- The first exception requires a consensual relationship with the tribe or its members and a regulation that arises from that relationship.
- The second exception requires conduct that imperils the tribe's political integrity, economic security, or health or welfare.
- The rule applies to adjudicatory jurisdiction in tribal court as well as to regulatory authority.
- Land status matters but does not settle the question, because the framework has been applied on tribal trust land as well as on fee land.
Questions readers ask
Does a non-member consent to tribal authority simply by entering the reservation?
No. Presence is not a consensual relationship in the sense the first exception uses. What the cases require is a private consensual arrangement — a contract, a lease, a commercial dealing, an employment relationship, membership in a tribal enterprise — with the tribe or its members. A traveler on a public road, a customer at a store, and a driver passing through have all been held outside the exception in one setting or another, because the arrangement asserted was either nonexistent or unrelated to the regulation the tribe wanted to impose.
How much of a threat does the second exception require?
More than an ordinary injury. The Supreme Court has described the exception as reaching conduct that imperils the subsistence of the tribal community, and has rejected attempts to satisfy it with generalized harms that any wrongful act produces. A tort committed against a member, standing alone, has not been enough. Conduct affecting tribal water supply, tribal government operations, or a resource the community depends on stands a better chance, and the argument is built on specific facts about dependence rather than on the seriousness of the wrong.
Who has the burden of establishing tribal jurisdiction?
The party asserting it, which in practice means the tribe or the plaintiff who filed in tribal court. Because the framework starts from a presumption against authority over non-members, a defendant challenging jurisdiction can succeed by showing that neither exception is established rather than by disproving a case. That allocation is why the pleading in tribal court matters so much: a complaint that identifies the contract, the lease or the specific communal harm is doing jurisdictional work as well as stating a claim.
Sources
- Cornell Legal Information Institute — 25 U.S.C. 1301, Definitions of the Indian Civil Rights ActThe statutory recognition of tribal powers of self-government and the persons subject to them.
- Cornell Legal Information Institute — 25 U.S.C. 5123, Organization of Indian TribesThe source of the constitutions and ordinances through which tribes assert regulatory authority.
- eCFR — 25 CFR Part 169, Rights-of-Way Over Indian LandThe consent and grant framework governing rights-of-way, the land status at issue in Strate.
- eCFR — 25 CFR Part 162, Leases and PermitsThe leasing regulations that create many of the consensual relationships the first exception depends on.
- eCFR — 25 CFR Part 11, Courts of Indian Offenses and Law and Order CodeThe civil jurisdiction provisions applied where a tribe has no court of its own.
- United States Department of Justice — Office of Tribal JusticeFederal material on tribal governmental authority and the federal relationship with tribal courts.
Justice Partners Journal is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
