NATIONAL FARMERS UNION INSURANCE COMPANIES, ET AL., PETITIONERS V.
CROW TRIBE OF INDIANS, ET AL.

   No. 84-320

   In the Supreme Court of the United States

   October Term, 1984

   On Writ of Certiorari To The United States Court of Appeals For The
Ninth Circuit

   Brief For The United States As Amicus Curiae Supporting Respondents

            TABLE OF CONTENTS
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      I. The federal court may exercise its injunctive
           powers to keep the tribal court within its proper
           bounds
      II. The tribal court has jurisdiction to entertain
           the underlying controversy
   Conclusion

                          QUESTIONS PRESENTED

   1. Whether a federal court may enjoin Indian tribal court
proceedings against a non-Indian on the ground that the tribal court
has exceeded its jurisdiction.

   2. Whether an Indian tribal court may exercise civil jurisdiction
over non-Indians to redress personal injuries to a tribal member
allegedly caused by the negligent maintenance of a dangerous condition
on State-owned land within the Reservation where a large number of
Indian children attend school.

                     INTEREST OF THE UNITED STATES

   The United States has long been committed to furthering the goal of
self-government and self-determination for Indian Tribes.  See, e.g.,
White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143-144 & n.10
(1980);  President's Statement on Indian Policy, 19 Weekly Comp. Pres.
Doc. 98 (Jan. 24, 1983).  One aspect of that responsibility is to
encourage respect for tribal institutions, including the tribal
courts.  Hence, participation of the United States in cases of this
kind at least since Williams v. Lee, 358 U.S. 217 (1959).  So here:
we deem it appropriate to present our views on the question of tribal
jurisdiction over activities within a Reservation that significantly
affect the welfare of tribal members.

                               STATEMENT

   In May 1982, a Crow Indian child, Leroy Sage, was struck by a
motorcycle on the grounds of the Lodge Grass Elementary School within
the Crow Reservation in Montana.  The school is situated on
State-owned Reservation land and its student body is 85% Crow Indian.
Sage, through his guardian, filed suit against Lodge Grass School
District No. 27 in Crow Tribal Court alleging that his injuries were
caused by the negligent conduct of the school, specifically, the
unsafe condition of the school parking lot and inadequate supervision
during school hours.  Process was served on the school board chairman,
who failed to notify anyone else of the summons.  The school district
did not answer or appear and, in due course, on October 19, 1982, the
tribal court entered a default judgment for $153,000 against the
school district.  Pet. App. 2a-3a, 15a-16a.

   On November 2, 1982, having received notice of this judgment, the
school district and its insurance company filed suit in federal
district court alleging that the tribal court lacked subject matter
jurisdiction over the controversy.  Accepting that argument, the
district court permanently enjoined enforcement of the tribal court
order.  Pet. App. 14a-27a.  The Court of Appeals for the Ninth Circuit
reversed, holding that a federal court could not enjoin the tribal
court proceeding.  Pet. App. 1a-7a.  Judge Wright concurred in the
result on the ground that the district court should not have
intervened before requiring the plaintiffs to exhaust their tribal
court remedies.  Pet. App. 8a-13a.

   Shortly after the court of appeals' decision, on August 1, 1984,
the Crow Tribal Court issued a writ of execution pursuant to which
certain property of the school district was seized.  Sale of the
property was scheduled for August 23.  On August 22, the school
district appeared in the tribal court, seeking to enjoin the sale and
to set aside the default judgment.  The court, in orders dated August
22 and August 23, postponed the sale, and set a hearing to consider
the school district's motion to set aside the default judgment.  Br.
in Opp. App. 1a-9a.

   The school district also applied to Justice Rehnquist for a stay of
the Ninth Circuit's mandate.  Justice Rehnquist issued a temporary
stay on August 21 and continued the stay on September 10.  Reply Br.
App. 1a-8a.  On September 19, the tribal court entered an order
postponing a ruling upon the motion to set aside the default judgment
until after final review of the federal court proceedings by this
Court.  Br. in Opp. App. 10a-15a.

                          SUMMARY OF ARGUMENT

   The District Court in this case held, first, that it could
entertain a complaint against the exercise of power by the Crow Tribal
Court allegedly outside its jurisdiction, and, second, that the latter
court wholly lacked subject matter jurisdiction to entertain a
personal injury claim by a Crow child against a State school district
with respect to conduct occurring on State-owned land within the
Indian Reservation.  We believe the first ruling was correct, but the
second erroneous.

                                   I

   Undeniably, the sovereign powers of Indian Tribes over non-Indians
have been circumscribed by the reality of their "dependent status,"
even when no specific provision of treaty or statute expressly so
stipulates.  Such limitations on tribal sovereignty are necessarily
the consequence of federal law and it follows that anyone claiming
immunity from tribal jurisdiction on this basis is asserting a federal
right within the competence of the federal courts to adjudicate.
Unlike an allegation of violation of the Indian Civil Rights Act, for
which an apparently exclusive remedy has been provided, there is no
reason to deny the availability of injunctive relief to a non-Indian
whose complaint is that the tribal court is acting wholly beyond its
jurisdiction.

   Of course, federal courts should not always exercise their
equitable jurisdiction at the earliest opportunity, especially when an
adequate remedy may be available in another tribunal.  Thus, here,
even if intervention otherwise had been justified, it might have been
appropriate for the district court to require petitioners first to
seek relief in the tribal court system.  But, in our view, that
question is mooted because the facts presented to the federal court
disclosed a case properly within tribal jurisdiction.  In the present
context, there is no occasion to decide under what circumstances, if
any, a federal court may collaterally review tribal court judgments on
grounds other than the subject matter jurisdiction of the tribal
court.

                                  II

   Our submission in support of tribal court jurisdiction is limited
to circumstances like those alleged here.  This Court repeatedly has
stressed the residual sovereignty of Indian Tribes and the
governmental authority they enjoy over their diminished territory,
including, in some cases, the activities of non-Indians on "fee"
parcels within the Reservation.  When such activities significantly
affect tribal members, they are subject to regulation and taxation by
the Tribe.  There is no reason to view differently the exercise of
civil jurisdiction by the tribal judiciary in like circumstances.
Montana has apparently waived any sovereign immunity it might possess
and the hazardous situation described in the present complaint,
potentially endangering a significant portion of the Tribe's younger
membership, justified the tribal court's acceptance of the case.
Accordingly, those proceedings ought to be permitted to go forward
without federal court interference, at least at this stage.

                               ARGUMENT

 I. THE FEDERAL COURT MAY EXERCISE ITS INJUNCTIVE POWERS TO KEEP THE
TRIBAL COURT WITHIN ITS PROPER BOUNDS

   We are unable to endorse the holding of the majority of the court
of appeals that federal courts lack power to intervene when a tribal
court acts beyond its jurisdiction.  On the contrary, we share the
objections to such a rule stated by Judge Wright in his concurring
opinion below (Pet. App. 8a-13a), by Justice Rehnquist in his opinion
accompanying the stay orders (Pet. Reply Br. App. 1a-8a), and by
petitioners here.  In our view, because the boundaries of tribal
jurisdiction are defined by federal law, a non-Indian claiming injury
from tribal "jurisdictional excesses" states a "federal question" case
under Section 1331 of the Judicial Code, and the appropriate United
States District Court may entertain the complaint, and, if the facts
warrant it, enjoin further proceedings in the tribal court.  We now
urge affirmance of the judgment vacating the federal court injunction
because we believe the circumstances alleged show, on balance, that
the tribal court did not exceed its jurisdiction.  But we have no
doubt that the district court was correct in entertaining the
question, albeit we submit it reached the wrong conclusion on the
merits.

   1. It is clear enough that Indian Tribes lost some of their
aboriginal sovereignty when they were brought under the dominion of
the United States and assumed a "dependent status." Oliphant v.
Suquamish Indian Tribe, 435 U.S. 191, 206 209-210 (1978);  United
States v. Wheeler, 435 U.S. 313, 323, 326 (1978).  At least in the eye
of the law, that consequence resulted from federal action, since the
national sovereign alone has power to diminish tribal independence.
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 147 (1982);
Washington v. Confederated Tribes of the Colville Indian Reservation
447 U.S. 134, 153-154 (1980);  United States v. Wheeler, 435 U.S. at
323.  Accordingly, all limitations on tribal powers necessarily derive
from federal law -- whether in the form of constitutional principles,
treaties and statutes, or "rudimentary propositions" of "Indian law."
See Oliphant, 435 U.S. at 206;  Oneida Indian Nation v. County of
Oneida, 414 U.S. 661, 670 (1974).  And those who invoke these
limitations as affording immunity from tribal jurisdiction are
claiming a federal right and stating a "federal question" case under
Section 1331 of the Judicial Code.  Cf. Oneida, 414 U.S. at 667-678;
Lawrence Co. V. Lead-Deadwood School Dist., No. 83-240 (Jan. 9, 1985),
slip op. 3-4 n.6.

   2. In this context, we see no obstacle to conceding a private right
of action in the non-Indian who alleges that he is improperly
subjected to tribal court jurisdiction.  Unlike the situation under
the Indian Civil Rights Act, here Congress has not implicitly
restricted the remedy.  Compare Santa Clara Pueblo v. Martinez, 436
U.S. 49 (1978).  In a case like this one, where the allegation is that
the Tribe is acting wholly outside its jurisdiction, there is no
reason to deny the availability of injunctive relief in a federal
court at the instance of a suitor claiming injury from tribal
"jurisdictional excess."

   As the court of appeals recognized, this has been the prevailing
view when an Indian Tribe is alleged to have overstepped applicable
boundaries through legislation or regulation.  Pet. App. 5a-6a.  Like
petitioner, we cannot appreciate why the same rule should not govern
when the claim is that a tribal court, instead of a tribal council,
has exceeded its jurisdiction.  The federal court's power is no less
because the Tribe is acting judicially rather than through
legislation.

   3. Of course, a federal court's exercise of its injunctive power is
circumscribed by traditional equitable limitations.  For instance,
injunctive relief may be withheld if the plaintiff has an "adequate
remedy at law." In the present case, the petitioners could have
contested tribal court jurisdiction, at the outset, in the tribal
court.  The availability of a tribal court remedy perhaps should have
cautioned the district court to withhold federal injunctive relief.
So, also, this Court may wish to defer decision as to the scope of the
tribal court's jurisdiction, since that issue was not passed upon by
the court of appeals and is pending before the tribal court.  On the
other hand, we believe the facts presented to the district court
indicate a case within tribal court jurisdiction, and, of course, if
that is correct, the federal court had no ground for intervening, at
least at this stage.  /1/

 II. THE TRIBAL COURT HAS JURISDICTION TO ENTERTAIN THE UNDERLYING
CONTROVERSY

   In our view, the ultimate question -- whether the tribal court
permissibly exercised jurisdiction over the tort claim alleged -- is
not without difficulty, particularly in light of the limited record
before this Court.  Nevertheless, if the issue is deemed ripe for
decision, we suggest an affirmative answer.  In reaching that
conclusion, we eschew both extreme positions.  We cannot endorse the
proposition that every incident occurring within an Indian Reservation
is, for that reason alone, subject to tribal jurisdiction.  At the
same time, we think it clear that tribal courts may adjudicate some
Reservation-based claims asserted against non-Indians.  Our submission
is simply that the present case falls within this relatively narrow
category.

   1. It is useful, at the outset, to lay to rest any invitation to
re-open the venerable debate whether the surviving Indian Tribes,
within their diminished Reservations, are merely "private, voluntary
organizations," or, rather, should be recognized as "unique
aggregations possessing attributes of sovereignty over both their
members and their territory." E.g., United States v. Mazurie, 419 U.S.
544, 557 (1975).  Of course, everyone concedes the authority of Tribes
to determine their membership, to regulate, assess and discipline
members, and to control the use of tribal land.  But those are the
prerogatives of every private association.  To read this Court's
decisions as saying nothing more is to trivialize them.  From
Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832), through New
Mexico v. Mescalero Apache Tribe, No. 82-331 (June 13, 1983), slip.
op. 8-9, 11-12, the Court has emphasized that Indian Tribes constitute
"political communities," enjoying substantial "sovereign" powers over
both members and nonmembers when within Reservation boundaries.
Looking only to the last 25 years, that point has been made no less
than a dozen times.  See Williams v. Lee, 358 U.S. 217, 223 (1959);
Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685, 690-692
(1965);  Kennerly v. District Court, 400 U.S. 423, 426-427 (1971);
United States v. Mazurie, 419 U.S. at 557-558;  United States v.
Antelope, 430 U.S. 641, 645 (1977);  United States v. Wheeler, 435
U.S. at 323;  Santa Clara Pueblo v. Martinez, 436 U.S. at 55-56;
Washington v. Confederated Tribes of the Colville Indian Reservation,
447 U.S. at 152-154;  White Mountain Apache Tribe v. Bracker, 448 U.S.
136, 142, 151 (1980);  Montana v. United States, 450 U.S. 544, 565-566
(1981);  Merrion v. Jicarilla Apache Tribe, 455 U.S. at 140, 146-148;
Ramah Navajo School Board, Inc. v. Bureau of Revenue, 458 U.S. 832,
837-838 (1982);  New Mexico v. Mescalero Apache Tribe, slip op. 8-12.

   Accordingly, we take it as settled that some non-Indians, in some
circumstances, are subject to some kinds of tribal jurisdiction.
Recognition of that reality, it is true, does not immediately resolve
the case before us.  There are limits to the power of Indian Tribes
over non-Indians, and the question is whether the Crow Tribal Court's
exercise of jurisdiction here transgresses any such bounds.  To find
the answer, we must examine several potential objections peculiar to
the circumstances of this case.

   2. Because the underlying tort claim is directed against Lodge
Grass School District No. 27, a "political subdivision" of Montana
(see Mont. Code Ann. Section 2-9-101(5) (1983)), troubling questions
concerning state sovereign immunity are implicated.  In the
circumstances of this case, however, we believe no insurmountable
barrier exists.

   It is not clear whether a state would in any event retain its
sovereign immunity from suit in tribal courts.  But, in our view, that
question need not be reached in this case because Montana has waived
its immunity from tribal court suits.  In 1972, the State amended its
constitution to provide that "(t)he state * * * and all * * * local
governmental entities shall have no immunity from suit for injury to a
person or property * * * ." Mont. Const. Art. II, Section 18.  This
broad and unqualified waiver is remarkable.  Shortly after its
passage, one commentator noted,

      This bold constitutional step places Montana in a situation
      which is unique amont the fifty states.  Only this jurisdiction
      has moved to abolish the doctrine of sovereign immunity, without
      limitation, by constitutional fiat.

Comment, the Passing of Sovereign Immunity in Montana:  The King is
Dead, 34 Mont. L. Rev. 283 (1973) (emphasis in original).  Two years
later, the State constitution was amended to permit exceptions to the
waiver of sovereign immunity, but only "as may be specifically
provided by a 2/3 vote of each house of the legislature." Mont. Const.
Art. II, Section 18 (1974) (emphasis added).  No such law addressed to
tribal court suits having been enacted, it is reasonable to take
Montana at its word and construe its constitutional and statutory
waiver of immunity (Mont. Code Ann. Section 2-9-102 (1983)) as
encompassing actions filed in tribal court.  /2/

   Our conclusion is the more easily justified because a local school
district is involved.  Unlike arms of the central state government,
school districts, defined by state law as "political subdivisions,"
are not entitled to sovereign immunity under the Eleventh Amendment.
See Mt. Healthy City School District v. Doyle, 429 U.S. 274, 280
(1977).  /3/ Indeed, even before the constitutional waiver of
sovereign immunity in 1972, the Montana Supreme Court concluded that
school districts were amenable to suit to the limits of their
liability insurance.  See Longpre v. Joint School Dist. No. 2, 151
Mont. 345, 443 P.2d 1 (1968).  Accordingly, it is not surprising that
sovereign immunity from suit was not a ground relied upon by the
district court and is only mentioned in a halfhearted way both by the
petitioners (Pet. Br. 20-22) and by the State of Montana itself
(Eleven Amicus Curiae States Br. 35-36 & n.8).

   For much the same reason, the claim of exemption likewise fails if
stated more expansively as an assertion that the State and its
instrumentalities are altogether beyond tribal jurisdiction, whether
exercised through courts or other organs of government.  The Lodge
Grass Elementary School is in no sense an involuntary hostage on the
Reservation.  So far as we are aware, Montana's taking up the grant of
Sections 16 and 36 within the Crow Reservation carried with it no
obligation to establish schools there, and, in any event, nothing
compelled the State to seek or accept the offer.  /4/ In these
circumstances, it seems appropriate to hold that State agents
relinquish their special status when they enter an Indian Reservation
and their conduct there directly affects the welfare of the Tribe.
Cf. United States v. Mission Golf Course, Inc., 548 F. Supp. 1177
(D.S.D. 1982), aff'd, 716 F.2d 907 (8th Cir. 1983), cert. denied, No.
83-606 (Jan. 9, 1984).

   3. Plainly, the situs of the tort on non-Indian land cannot be
dispositive.  As the Court has stressed, Indian Tribes are not mere
landowners:  they wield governmental powers.  Merrion, 455 U.S. at
137-141, 145-149.  There is, to be sure, a geographic limitation on
tribal jurisdiction -- at least when asserted over nonmembers.  But
that boundary is the perimeter of the Reservation, not the plot line
of each "fee" parcel within it.  That is one reason why it matters
whether alienated tracts or portions of a Reservation opened up to
entry by homesteaders remain "Indian country." See Seymour v.
Superintendent, 368 U.S. 351 (1962);  Mattz v. Arnett, 412 U.S. 481
(1973);  DeCoteau v. District County Court, 420 U.S. 425 (1975);
Solem v. Bartlett, No. 82-1253 (Feb. 22, 1984), slip op. 2 nn.1&2, 4.
It is, moreover, what the Court expressly said in Montana v. United
States, 450 U.S. at 565 (citations omitted):

      * * * Indian tribes retain inherent sovereign power to exercise
      some forms of civil jurisdiction over non-Indians on their
      reservations, even on non-Indian fee lands.  A tribe may
      regulate, through taxation, licensing, or other means, the
      activities of nonmembers who enter consensual relationships with
      the tribe or its members, through commercial dealing, contracts,
      leases, or other arrangements.  * * * A tribe may also retain
      inherent power to exercise civil authority over the conduct of
      non-Indians on fee lands within its reservation when that
      conduct threatens or has some direct effect on the political
      integrity, the economic security, or the health or welfare of
      the tribe.  * * *

   4. Nor do non-Indians enjoy a unique immunity from the Tribe's
judicial arm.  Just as petitioners insist (correctly, we think) that
federal jurisdiction to correct tribal "jurisdictional excesses" does
not depend upon whether the Tribe is acting judicially or
legislatively, so we assert that tribal jurisdiction is no less when
exercised judicially instead of legislatively.  It is no answer that
Indian Tribes cannot criminally prosecute non-Indians for offenses
committed on the Reservation, even crimes against members occurring on
tribal lands.  Oliphant v. Suquamish Indian Tribe, supra.  A
sufficient reason for that rule is not peculiar to the Indian
tribunal:  The non-Indian is simply not subject to substantive tribal
criminal law.  See Colville, 447 U.S. at 153.

   Our history of Indian affairs indicates that the absence of tribal
criminal jurisdiction over non-Indians is no basis for disabling
Indian Tribes from exercising civil jurisdiction over non-Indians.
Indeed, as Oliphant itself stresses, national policy, evidenced in
federal legislation from the Trade and Intercourse Act of 1790 to the
Major Crimes Act of 1885 and a long line of treaty provisions, has
subjected non-Indians committing offenses against tribal members to
federal criminal law, administered by the federal courts.  435 U.S. at
198-203.  And this, the Court concluded, reflected the "commonly
shared presumption of Congress, the Executive Branch, and lower
federal courts that tribal courts do not have the power to try
non-Indians." Id. at 206.  But there is nothing comparable on the
civil side.  Except for a brief and unusual transitional period in the
Indian Territory (note 6, infra), no treaty nor statute has ever
provided for federal adjudication of Reservation-based civil cases
involving non-Indians.  /5/ On the contrary, the different rule
applicable in respect of tribal assertions of civil jurisdiction was
expressly noted as early in 1855 in an Opinion of the Attorney General
cited by this Court in Oliphant.  7 Op. Att'y Gen. 174, cited, 435
U.S. at 199.

   Thus, once it is recognized that Tribes "retain inherent sovereign
power to exercise some forms of civil jurisdiction over non-Indians on
their reservations," Montana, 450 U.S. at 565, there is no reason to
exclude the jurisdiction of the tribal courts in cases where
substantive tribal law governs non-Indians.  As Felix Cohen has
summarized the matter, "the judicial powers of the tribe are
coextensive with its legislative or executive powers." Cohen, Handbook
of Federal Indian Law 145 (1942).  Accord, Powers of Indian Tribes, 55
Interior Dec. 14, 56 (1934).  It would be strange, indeed, if, in a
given instance, a non-Indian were subject to tribal taxation or
regulation, but could not be made answerable in tribal court to assure
compliance with the relevant ordinance.  /6/

   5. We must not be misled because there is little record, until
recently, of Indian tribunals exercising civil jurisdiction over
non-Indian defendants.  Except for the Five Civilized Tribes whose
institutions were soon severely curtailed, the fact is that judicial
tribunals, in the white man's sense, were largely unknown in the
traditional Indian world.  They were first introduced into Indian
country as "courts of Indian offenses," effectively agencies of
federal police administration with limited jurisdiction.  United
States v. Clapox, 35 F. 575 (D. Or. 1888).  See D. Getches, et al.,
Cases and Materials on Federal Indian Law 313-317 (1979);  R.
Strickland, et al., Felix S. Cohen's Handbook of Federal Indian Law
333-334 (1982).  And where genuine tribal courts ultimately developed,
they suffered other set-backs.  As one recent study concludes
(National American Indian Court Judges Association, Indian Courts and
the Future 13 (1978)):

         Overall, Indian courts have been retarded by their history.
      They originally were vehicles of an outside force.  Later, their
      intended growth as integral parts of an Indian government was
      stunted by a lack of effective programs or funding, as well as
      policy vacillations.  * * *

   Today, however, the situation is very different.  One survey
indicated that no less than 66 Tribes expressly assert civil court
jurisdiction over non-Indians in some circumstances.  NAICJA Report,
Native American Tribal Court Profiles, 1984, at 4, 5, 6, 7, 10, 11,
14, 15, 19, 21, 22, 23, 25, 30, 32, 40, 42, 44, 51, 53, 54, 56, 57,
62, 66, 70, 73, 76, 78, 80, 81, 82, 85, 86, 87, 88, 89, 90, 91, 92,
96, 97, 98, 100, 101, 104, 105, 106, 107, 110, 112, 113, 114, 115,
118, 119, 121, 124, 125, 126, 127, 128, 134, 136, 137, 143.  The
Department of the Interior has approved such provisions /7/ and, at
least in some contexts, so have the courts.  E.g., Cowan v. Rosebud
Sioux Tribe, 404 F. Supp. 1338 (D.S.D. 1875);  Cardin v. De La Cruz,
671 F.2d 363 (9th Cir. 1982), cert. denied, 459 U.S. 967;  Babbitt
Ford, Inc. v. Navajo Indian Tribe, 710 F.2d 587 (9th Circ. 1983),
cert. denied, No. 83-610 (Apr. 2, 1984).  Indeed, this Court's ruling
in Williams v. Lee, supra, and its progeny strongly indicates that a
non-Indian whose conduct directly affects tribal members may be
required to answer in tribal court in respect of a Reservation-based
civil claim.  After all, it would be anomalous to excuse non-members
from appearing in tribal court when the same persons, as plaintiffs,
are compelled to invoke that tribunal to seek judicial redress.  /8/
That appears to be the Court's teaching in stating, without
distinction between plaintiff and defendant, that "(t)ribal courts
have repeatedly been recognized as appropriate forums for the
exclusive adjudication of disputes affecting important personal and
property interests of both Indians and non-Indians." Santa Clara
Pueblo v. Martinez, 436 U.S. at 65 (footnote omitted).  /9/

   6. We find particularly strained the suggestion that the dictum
from the Montana case just quoted permits tribal exercise of
jurisdiction over non-Indians on the Reservation when the conduct in
question directly affects the "health or welfare" of the Tribe itself,
but denies jurisdiction when the members are adversely affected.  One
need only posit a case of tortious damage to tribal property --
instead of personal injury to a member -- and ask whether the
non-Indian tortfeasor would then be answerable in tribal court.
Surely, a rampant public nuisance located on the Reservation is not
less subject to tribal jurisdiction because the resulting harm is to
the tribal population rather than the tribal land.  Cf. McClanahan v.
Arizona State Tax Comm'n, 411 U.S. 164, 179, 180-181 (1973).

   It may be debatable whether tribal courts can compel a non-Indian
motorist travelling through the Reservation to answer for an isolated
tort affecting only a single individual who happens to be an Indian.
But there is no basis for denying the Tribe and its institutions power
to deal with a situation like that alleged here -- maintaining a
dangerous condition that potentially threatens the entire student body
of a Reservation school, 85% of whom are tribal members.  The
standard, we submit, is whether the conduct underlying the lawsuit
significantly affects the tribal community.  On the face of the
complaint here, this is such a case.

                              CONCLUSION

   The judgment of the court of appeals vacating the injunction
entered by the district court should be affirmed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   F. HENRY HABICHT II

      Assistant Attorney General

   LOUIS F. CLAIBORNE

      Deputy Solicitor General

   FEBRUARY 1985

   /1/ We believe it is premature to discuss the circumstances, if
any, that would justify a federal court in reviewing tribal court
proceedings for procedural regularity or the legality of particular
means of executing a tribal court judgment.  We merely suggest that
principles or comity may well counsel a tribal court to follow state
law with respect to the immunity of governmental property from
seizure.  E.g., Mont. Code Ann. Section 2-9-318 (1983).  Here, we have
every reason to anticipate that the ultimate judgment of the Crow
Tribal Court, if its jurisdiction is vindicated by the decision of
this Court, will be satisfied without putting that proposition to the
test.

   /2/ Petitioner's citation to Mont. Code Ann. Section 2-9-311 (1983)
as giving Montana's state courts "exclusive" jurisdiction of tort
actions against state agencies (Pet. 21) is misleading.  The provision
merely confers jurisdiction -- without any suggestion that the grant
is exclusive.

   /3/ This alone distinguishes the Ninth Circuit ruling in Montana v.
Peretti, 661 F.2d 756 (1981), that Montana's waiver of sovereign
immunity is not sufficiently explicit to overcome the barrier of the
Eleventh Amendment in federal courts.  See Pennhurst State School &
Hospital v. Halderman, No. 81-2101 (Jan. 23, 1984).

   /4/ We assume, without independent knowledge, that petitioners are
correct in asserting (Pet. Br. 3-4, 20) that the land in question was
acquired by the State pursuant to Section 16 of the Crow Allotment Act
of 1920, ch. 224, 41 Stat. 756, which tendered to the State the
traditional "school sections" within the Crow Reservation (see Pet.
App. 19a n.2) -- albeit the Reservation had been established by treaty
in 1868, long before Montana achieved statehood.  See Montana v.
United States, 450 U.S. at 548, 553-554, 558-559.  In return, Montana
promised to permit Crow Indian children "to attend the public schools
of said state on the same conditions as the children of white citizens
of said state." Ibid.  Nothing in this proviso directly required the
State to maintain a school on each -- or any -- Section 16 and 36
within the Crow Reservation.  On its face, the undertaking is no more
than what the Equal Protection Clause of the Fourteenth Amendment in
any event mandated, at least after the Crow became State citizens in
1924.  See 8 U.S.C. (1976 ed.) 1401(a)(2).  But, however that may be,
it is perfectly clear that federal law did not compel Montana to enter
the Crow Reservation by taking up the option to acquire one or more
Sections 16 and 36.

   /5/ We do not accept the contrary implication sought to be drawn
from Article 1 of the Second Treaty of Fort Laramie, May 7, 1868, 15
Stat. 649, by the State of Washington as amicus curiae (Br. 8-10).
The cited provision deals only with criminal offenses and,
incidentally, obligates the United States to make whole the Indian
victim of a non-Indian crime.  Obviously, this does not remotely speak
to the jurisdiction of the Tribe to exercise civil jurisdiction over
non-Indians in a non-criminal context.  Indeed, Washington's argument
is foreclosed by this Court's ruling in Williams v. Lee, supra, which
sustained tribal court jurisdiction over a non-Indian doing business
on the Reservation in the face of an identical provision in the Treaty
with the Navajos, June 1, 1868, Art. 1, 15 Stat. 667.

   /6/ That awkward circumstance did prevail, for a short time, in the
Indian Territory after Congress first restricted the exclusive
jurisdiction of the tribal courts of the Five Civilized Tribes to
cases in which members were "the sole parties" (Act of May 2, 1890,
ch. 182, Sections 30, 31, 26 Stat. 94), and, eight years later,
abolished those tribunals altogether (Act of June 28, 1898, ch. 517,
Section 28, 30 Stat. 504).  See Cohen, supra, at 363 n.29, 430.
Enforcement of tribal taxes due by non-Indians thereafter depended on
the Interior Department for the brief period until taxing power was
itself terminated in 1906 (Act of Apr. 26, 1906, ch. 1876, Section 1,
34 Stat. 137).  See, e.g., Morris v. Hitchcock, 194 U.S. 384 (1904).
But this exceptional situation, created by special legislation aimed
at particular Tribes, indicates what otherwise would be the rule:
civil judicial power reaching non-Indians to the same extent as the
Tribe's legislation may.  Before the Act of May 2, 1890, the civil
jurisdiction of the Cherokee courts expressly covered not only cases
in which members were the only parties, but also "where the cause of
action shall arise in the Cherokee nation." Treaty of July 19, 1866,
art. 13, 14 Stat. 803.  See In re Mayfield, 141 U.S. 107, 113-115
(1891);  Alberty v. United States, 162 U.S. 499, 502-503 (1896).

   /7/ Among tribal laws approved in the last decade by the Department
which assert tribal court civil jurisdiction over non-Indians are
constitutions, codes or ordinances of the Pueblo of Laguna, the
Yerington Paiute Tribe, the Ute Tribe, the White Mountain Apache
Tribe, the Gila River Indian Community, the Keweenaw Bay Indian
Community, the Bay Mills Chippewa Tribe, the Confederated Tribes of
the Warm Springs Reservation, the Makah Tribe, the Port Gamble Klallam
Tribe, the Quileute Tribe, the Nez Perce Tribe, the Mescalero Apache
Tribe, the Rosebud Sioux Tribe, the Crow Creek Tribe, the Fort Peck
Assiniboine and Sioux Tribes, the Fort Belnap Gros Ventre and
Assiniboine Tribe, the Salt River Pima and Maricopa Tribes and the
Devils Lake Sioux Tribe.

   /8/ Of course, this summetry cannot be extended to in personam
jurisdiction.  A defendant can object, on Due Process grounds, to a
plaintiff's choice of a state forum if requisite "minimum contacts"
are lacking, notwithstanding the forum's power, in the abstract, to
adjudicate the claim.  E.g., Helicopteros Nacionales de Colombia v.
Hall, No. 82-1127 (Apr. 24, 1984);  World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286 (1980).  We assume that similar limitations
apply to tribal forums.  But there is no assertion in this case that
the relationship between the defendant, the forum, and the litigation
is so tenuous that tribal court jurisdiction would offend "traditional
notions of fair play and substantial justice." International Shoe Co.
v. Washington, 326 U.S. 310, 316 (1945).

   /9/ Indeed, the district court below recognized the contradiction
and sought to avoid it by suggesting that Williams v. Lee effectively
has been overruled by Montana v. United States.  Pet. App. 23a-24a.
As this Court well knows, that is hardly the case.  See, e.g., Three
Affiliated Tribes v. Wold Engineering, No. 82-629 (May 29, 1984), slip
op. 8-9.  If anything, it is the Montana decision that has been
narrowed.  See, e.g., New Mexico v. Mescalero Apache Tribe, slip op. 7
n.12.