FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WATER WHEEL CAMP RECREATIONAL 

AREA, INC. and ROBERT JOHNSON,

Plaintiffs-Appellees,

v. No. 09-17349

GARY D.C. No. LARANCE, The Honorable 

2:08-CV-00474- Judge in his capacity as the Chief

and Presiding Judge of the DGC

Colorado River Indian Tribes

Tribal Court, JOLENE MARSHALL,

Defendants-Appellants. 

WATER WHEEL CAMP RECREATIONAL 

AREA, INC. and ROBERT JOHNSON,

Plaintiffs-Appellants, No. 09-17357

v. D.C. No.

GARY LARANCE, The Honorable  2:08-CV-00474-

Judge in his capacity as the Chief DGC

and Presiding Judge of the OPINION Colorado River Indian Tribes

Tribal Court, JOLENE MARSHALL,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted

February 17, 2011—San Francisco, California

Filed June 10, 2011

8021
Before: Richard C. Tallman and Consuelo M. Callahan,

Circuit Judges, and Suzanne B. Conlon,* District Judge.

Per Curiam Opinion

*The Honorable Suzanne B. Conlon, United States District Judge for

the Northern District of Illinois, sitting by designation. 

8022 WATER WHEEL CAMP v. LARANCE
COUNSEL

Tim Vollmann and Gwenellen P. Janov (argued), Albuquerque, New Mexico, for defendants-appellants The Honorable

Gary LaRance and Jolene Marshall.

Dennis J. Whittlesey (argued), Dickinson Wright PLLC,

Washington D.C., for plaintiff-cross-appellant Water Wheel

Camp Recreational Area, Inc., and plaintiff-appellee Robert

Johnson.

Ellison Folk and Winter King, Shute, Mihaly & Weinberger

LLP, San Francisco, California; Eric Shepard, Office of the

Attorney General, Parker, Arizona, for amicus curiae Colorado River Indian Tribes.

Carl Bryant Rogers, VanAmberg, Rogers, Yepa, Abeita &

Gomez, LLP, Santa Fe, New Mexico; Melody L. McCoy,

Native American Rights Fund, Boulder, Colorado, for amicus

curiae The National American Indian Court Judges Association.

John L. Smeltzer (argued), Environment & Natural Resources

Division, United States Department of Justice, Washington

D.C., for amicus curiae United States.

WATER WHEEL CAMP v. LARANCE 8025
Rob Roy Smith, Ater Wynne LLP, Seattle, Washington, for

amicus curiae Nez Perce Tribe, Stillaguamish Tribe of Indians, Confederated Salish and Kootenai Tribes of the Flathead

Reservation, Confederated Tribes of the Siletz Indians of Oregon, Duckwater Shoshone Tribe, and the National Congress

of American Indians.

Timothy Ward Woolsey, Nespelem, Washington, for amicus

curiae Confederated Tribes of the Colville Indian Reservation.

OPINION

PER CURIAM:

A tribal court system exercised jurisdiction over a nonIndian closely held corporation and its non-Indian owner in an

unlawful detainer action for breach of a lease of tribal lands

and trespass. It entered judgment in favor of the tribe. We

examine the extent of an Indian tribe’s civil authority over

non-Indians acting on tribal land within the reservation. We

hold that under the circumstances presented here, where there

are no sufficient competing state interests at play, Nevada v.

Hicks, 533 U.S. 353, 359-60 (2001), the tribe has regulatory

jurisdiction through its inherent authority to exclude, independent from the power recognized in Montana v. United States,

450 U.S. 544 (1981). Because regulatory jurisdiction exists,

we also consider whether adjudicative jurisdiction exists. In

light of Supreme Court precedent recognizing tribes’ inherent

civil authority over non-Indian conduct on tribal land and

congressional interest in promoting tribal self-government, we

conclude that it does. Finally, applying traditional personal

jurisdiction principles, we hold that in this instance, the tribal

court has personal jurisdiction over a non-Indian agent acting

on tribal land.

8026 WATER WHEEL CAMP v. LARANCE
I

In 1975, the Colorado River Indian Tribes (“CRIT”) and

Water Wheel Camp Recreational Area, Inc. (“Water Wheel”)

entered into a thirty-two-year business lease of twenty-six

acres of CRIT tribal land located within the reservation along

the California side of the Colorado River. The land is held in

trust by the United States and the local Superintendent of the

Bureau of Indian Affairs (“BIA”) approved the lease under

the authority delegated by the Secretary of the Department of

the Interior, as required by law.1See 25 U.S.C. § 415(a)

(2006). Throughout the term of the lease, Water Wheel operated a recreational resort on the leased tribal land that

included a marina, convenience store, bar, trailer and camping

spaces, and related facilities.

Robert Johnson, a non-Indian, purchased from non-Indian

owners half of Water Wheel’s stock in 1981 and the remaining stock in 1985, at which point he became president of the

corporation. He controlled and operated the Water Wheel

resort on CRIT land for more than twenty-two years while living at the site. Under the lease agreement, he collected rents

from the resort’s subtenants and paid that rent to the tribe. The

lease called for renegotiation of the minimum base rental

value after twenty-five years to more accurately reflect the

current market value, but in 2000, when it was time to renegotiate, the CRIT and Johnson (acting on behalf of Water

Wheel) failed to reach an agreement. After that, Water Wheel

stopped making payments as required by the lease. Beginning

in 2001, the corporation stopped paying the required percentage of gross business receipts. It paid only nominal rent in

2003 and 2004, and failed to pay any rent at all beginning in

2005.

1Water Wheel contested the status of the land before the tribal court, but

waived the argument before the district court. Water Wheel and Robert

Johnson concede that outside of the lease, they have no right to occupy or

use the land. 

WATER WHEEL CAMP v. LARANCE 8027
When the lease expired on July 6, 2007, Water Wheel and

Johnson failed to vacate the property “peaceably and without

legal process” as the lease required. Instead, Johnson continued to operate Water Wheel and collect funds from resort

patrons, but paid nothing to the tribe. When he refused to

vacate, the CRIT filed suit against Water Wheel and Johnson

in tribal court for eviction, unpaid rent, damages from the

tribe’s loss of use of their property, and attorney’s fees. Johnson and Water Wheel challenged both the tribe’s right to evict

them and the jurisdiction of the CRIT tribal courts. They

moved to dismiss, arguing in relevant part that the tribal court

lacked subject matter jurisdiction under Montana, 450 U.S.

544, and lacked personal jurisdiction over Johnson.

The tribal court denied the motions to dismiss and, following a three-day trial on the merits, ruled in favor of the CRIT

on all claims. The tribal court found that because Water

Wheel had entered into a consensual relationship with the

tribe through commercial dealings, the court had subject matter jurisdiction over Water Wheel under Montana’s first exception.2

 Regarding Johnson himself, the tribal court reasoned

that it had subject matter jurisdiction over the breach of lease

under Montana’s first exception and that it had personal jurisdiction over him because Johnson had “sufficient minimum

contacts” with the CRIT to support the exercise of jurisdiction. Specifically, the court determined that Johnson’s business dealings and his continuing trespass after the lease

expired provided sufficient contacts necessary to establish

personal jurisdiction. The court further reasoned that it had

subject matter jurisdiction over Water Wheel and Johnson

2Montana, discussed in greater detail below, held that a tribe may not

regulate the activities of non-Indians on non-Indian fee land within the

reservation unless one of two exceptions applies. The first exception exists

where non-Indians “enter consensual relationships with the tribe or its

members,” and the second exception exists where the conduct of a nonIndian “threatens or has some direct effect on the political integrity, the

economic security, or the health or welfare of the tribe.” 450 U.S. at 566.

8028 WATER WHEEL CAMP v. LARANCE
through its own laws and ordinances for purposes of eviction

and assessing damages. 

Finally, the tribal court noted that Water Wheel and Johnson had repeatedly and willfully disobeyed pretrial orders

compelling discovery of financial and corporate records. As

a sanction, the court found as true the tribe’s contention that

Water Wheel and Johnson were “alter egos” and, pursuant to

tribal rules of civil procedure that mirror the Federal Rules of

Civil Procedure, that the facts embraced in the discovery

requests were established as the tribe had claimed. Specifically, the tribal court found that Water Wheel was inadequately capitalized; that the corporation and Johnson had

made gifts to each other since 1999 in fraud of creditors; and

that Johnson borrowed funds for his own personal use, failed

to maintain separate financial records, failed to keep formal

corporate board meeting minutes, failed to elect directors, and

had commingled corporate money with his own personal

assets instead of paying the rent. In light of these factual findings, the tribal court pierced the corporate veil to hold Johnson personally and jointly liable for all damages related to

breach of the lease agreement. 

The tribal court of appeals affirmed.3 In a fifty-eight-page

opinion, the appellate court held that the CRIT had subject

matter jurisdiction both through its inherent sovereign authority and through the first and second Montana exceptions. The

court noted the importance the Supreme Court has placed on

land ownership in determining questions of civil jurisdiction.

It also observed that in light of the long-recognized power of

Indian tribes to exclude non-Indians from Indian-owned land,

the Court has, with one narrow exception, “consistently

upheld the exercise of tribal authority over non-member activ3The court reversed the award for trespass damages and remanded for

recalculation based on the fair rental value of the formerly leased property.

That issue is not before us. 

WATER WHEEL CAMP v. LARANCE 8029
ity on tribal or other Indian owned land within an Indian reservation” (emphasis in original).

The appellate court further determined that Montana’s first

exception was satisfied because the possessory claims of

Water Wheel and Johnson flowed solely from a federally

approved surface lease of lands owned by the tribe within its

reservation and thus clearly constituted a consensual relationship. Additionally, the court found that Montana’s second

exception was satisfied because substantial tribal revenues

were at stake and because, “[f]or the Tribe, as for most Indian

tribes, its land constitutes its single most valuable economic

asset,” and the activities of Johnson and Water Wheel interfered with the tribe’s ability to manage and use its own land.

Regarding personal jurisdiction over Johnson, the court

found that in agreeing to and benefitting from the lease, Johnson had consented to the tribal court’s exercise of jurisdiction.

For purposes of the trespass claim, the court found that the

damages were properly directed at Johnson as an individual

because he had overstayed the lease. The court also noted that

both Water Wheel and Johnson had been properly served

while on the Water Wheel site within the reservation. 

While the case was pending before the tribal court, Water

Wheel and Johnson filed a complaint in the District of Arizona seeking declaratory and injunctive relief against the

tribal court’s exercise of jurisdiction. After the tribal court of

appeals issued its decision, the district court reviewed the

jurisdictional questions. The district court declined to reach

the question whether the tribe’s inherent authority to exclude

non-Indians from tribal land provided jurisdiction over Water

Wheel. Relying on the facts surrounding the lease between the

CRIT and Water Wheel, the district court found a consensual

relationship existed and that the tribal court had subject matter

jurisdiction over Water Wheel under Montana’s first exception.4

4The court reasoned that it did not need to reach the question regarding

the tribe’s inherent authority given its decision that Montana’s first excep8030 WATER WHEEL CAMP v. LARANCE
The court further determined that the tribe had not waived its

sovereign powers through the lease and that BIA regulations

did not preempt tribal court jurisdiction.

The district court rejected the tribe’s argument that its

inherent power to exclude provides a basis for jurisdiction

over Johnson independent of Montana, reasoning that Montana applied to determine whether a tribe could exercise its

inherent authority to exclude. In a footnote, the court

attempted to clarify that its decision addressed only whether

the tribe’s authority to exclude provided a jurisdictional basis

for Johnson, not that Montana would prevent the tribe from

excluding Johnson from tribal land. The court did not consider the connection between the tribe’s authority to exclude

and its regulatory jurisdiction, nor did it consider whether the

tribe’s status as landowner made any difference to the analysis. 

Considering tribal court’s jurisdiction over Johnson, the

district court first determined whether Johnson’s relationship

with the CRIT was consensual. Johnson argued that he had

protested the CRIT’s involvement and had not understood that

he, personally, would be dealing with the tribe, so the relationship was not voluntary. The district court agreed, noting

that the tribal court made no factual findings regarding voluntariness to which the clearly erroneous standard of review

could be applied. The district court reasoned that the evidence

regarding Johnson’s personal understanding could not “fairly

be characterized as his personal consent to the tribe’s jurisdiction,” so Johnson could not have entered into a consensual

relationship with the tribe. 

tion provided a basis for jurisdiction. Apparently, the court failed to recognize that in applying Montana unnecessarily, it improperly expanded

limitations on tribal sovereignty that, with only one narrow exception,

have been applied exclusively to non-Indian land. 

WATER WHEEL CAMP v. LARANCE 8031
Finally, the district court rejected the argument that the

tribal court had jurisdiction over Johnson through a provision

in the lease specifying that Water Wheel, its agents, and its

employees would abide by tribal laws and regulations. Nothing in the provision, the court reasoned, suggested that Water

Wheel had agreed that its agents would be subject to tribal

court jurisdiction. The district court declined to consider the

second Montana exception, reasoning that the defendants had

not made that argument.

Both parties appealed.

II

We have jurisdiction under 28 U.S.C. § 1291. A decision

regarding tribal court jurisdiction is reviewed de novo, and

factual findings are reviewed for clear error. Smith v. Salish

Kootenai College, 434 F.3d 1127, 1130 (9th Cir. 2006); FMC

v. Shoshone-Bannock Tribes, 905 F.2d 1311, 1313-14 (9th

Cir. 1990). We have also recognized that because tribal courts

are competent law-applying bodies, the tribal court’s determination of its own jurisdiction is entitled to “some deference.”

Id. at 1313 (citing Santa Clara Pueblo v. Martinez, 436 U.S.

49, 65-66 (1978)). 

As we consider questions of tribal jurisdiction, we are

mindful of “the federal policy of deference to tribal courts”

and that “[t]he federal policy of promoting tribal selfgovernment encompasses the development of the entire tribal

court system, including appellate courts.” Iowa Mut. Ins. Co.

v. LaPlante, 480 U.S. 9, 16-17 (1987); see also United States

v. Wheeler, 435 U.S. 313, 332 (1978) (recognizing that “tribal

courts are important mechanisms for protecting significant

tribal interests”).

III

In considering the extent of a tribe’s civil authority over

non-Indians on tribal land, we first acknowledge the long8032 WATER WHEEL CAMP v. LARANCE
standing rule that Indian tribes possess inherent sovereign

powers, including the authority to exclude, New Mexico v.

Mescalero Apache Tribe, 462 U.S. 324, 333 (1983) (“A

tribe’s power to exclude nonmembers entirely or to condition

their presence on the reservation is . . . well established.”),

unless Congress clearly and unambiguously says otherwise.

United States v. Lara, 541 U.S. 193, 200 (2004) (recognizing

that “the Constitution grants Congress broad general powers

to legislate in respect to Indian tribes, powers that we have

consistently described as ‘plenary and exclusive’ ” (citations

omitted)); Santa Clara Pueblo, 436 U.S. at 58, 60 (recognizing Congress’s “superior and plenary control” over matters of

tribal sovereignty and noting that “a proper respect both for

tribal sovereignty itself and for the plenary authority of Congress in this area cautions that we tread lightly in the absence

of clear indications of legislative intent”); see also William C.

Canby, Jr., American Indian Law in a Nutshell 101 (5th ed.

2009) (“Although the doctrine of plenary power of Congress

over tribal sovereignty has its critics, it remains in full

strength in the courts, so long as Congress makes its intent to

limit sovereignty clear.” (internal citation omitted)). 

From a tribe’s inherent sovereign powers flow lesser powers, including the power to regulate non-Indians on tribal

land. South Dakota v. Bourland, 508 U.S. 679, 689 (1993)

(recognizing that a tribe’s power to exclude includes the incidental power to regulate). We also adhere to the Supreme

Court’s instruction that a tribe’s adjudicative authority may

not exceed its regulatory authority. Strate v. A-1 Contractors,

520 U.S. 438, 453 (1997). To exercise its inherent civil

authority over a defendant, a tribal court must have both subject matter jurisdiction—consisting of regulatory and adjudicative jurisdiction—and personal jurisdiction. The question

we consider is whether and to what extent Montana limits

these powers. We turn first to the question of subject matter

jurisdiction.

WATER WHEEL CAMP v. LARANCE 8033
A

Montana is “the pathmarking case concerning tribal civil

authority over nonmembers.” Strate, 520 U.S. at 445. In Montana, the Supreme Court stated that the “exercise of tribal

power beyond what is necessary to protect tribal selfgovernment or to control internal relations is inconsistent with

the dependent status of the tribes, and so cannot survive without express congressional delegation.” Montana, 450 U.S. at

564. The narrow question the Court considered in light of this

test concerned the tribe’s exercise of regulatory jurisdiction

over non-Indians on non-Indian land within the reservation.5

Id. at 557 (“Though the parties in this case have raised broad

questions about the power of the Tribe to regulate hunting and

fishing by non-Indians on the reservation, the regulatory issue

before us is a narrow one . . . the question of the power of the

Tribe to regulate non-Indian fishing and hunting on reservation land owned in fee by nonmembers of the Tribe.”).

[1] The Court noted two exceptions to this limitation on

tribal powers. First, the Court stated that

[t]o be sure, Indian tribes retain inherent sovereign

power to exercise some forms of civil jurisdiction

over non-Indians on their reservations, even on nonIndian 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.

Id. at 565. Second, the Court stated that, “[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 politi5A reservation may contain both Indian and non-Indian land, and Indian

land may also exist outside of a reservation. See 18 U.S.C. § 1151 (2006).

8034 WATER WHEEL CAMP v. LARANCE
cal integrity, the economic security, or the health or welfare

of the tribe. Id. at 566. These exceptions have come to be

known as the two Montana exceptions.

Since deciding Montana, the Supreme Court has applied

those exceptions almost exclusively to questions of jurisdiction arising on non-Indian land or its equivalent. See analysis

infra. The exception is Hicks, discussed in greater detail

below, where the Court noted that while land ownership may

sometimes be a “dispositive factor” in determining whether a

tribe has jurisdiction over a non-Indian, it was not dispositive

when weighed against the state’s considerable interest in executing a search warrant for an off-reservation crime. Hicks,

533 U.S. at 358-60, 363. 

Despite the explicitly narrow nature of the question considered in Hicks, the district court applied Montana to determine

whether the CRIT has subject matter jurisdiction over nonIndians Water Wheel and Johnson related to their activities on

tribal land within the CRIT reservation. The CRIT and the

United States, through its amicus brief, argue that Montana

does not apply to this case. Their position is that the CRIT’s

inherent authority to exclude provides regulatory jurisdiction

over Water Wheel and Johnson and that there are no competing state interests at play that might otherwise trigger Montana’s application. They further suggest that because

regulatory jurisdiction exists and neither Congress nor the

Supreme Court have said otherwise, the tribal court may also

exercise adjudicative jurisdiction. We agree.

As a preliminary matter, we consider the relationship

between the tribe’s inherent authority to exclude and its

authority to exercise jurisdiction. The district court stated, and

arguably held despite its footnote indicating otherwise, that a

tribe’s inherent authority to exclude a non-Indian from tribal

land is subject to Montana. But the Supreme Court has recognized that a tribe’s power to exclude exists independently of

its general jurisdictional authority. See Duro v. Reina, 495

WATER WHEEL CAMP v. LARANCE 8035
U.S. 676, 696-97 (1990) (noting that even where tribes lack

criminal jurisdiction over a non-Indian defendant, they “possess their traditional and undisputed power to exclude persons

whom they deem to be undesirable from tribal lands. . . .

Tribal law enforcement authorities have the power to restrain

those who disturb public order on the reservation, and if necessary, to eject them. Where jurisdiction to try and punish an

offender rests outside the tribe, tribal officers may exercise

their power to detain the offender and transport him to the

proper authorities”), superseded on other grounds by congressional statute, 25 U.S.C. § 1301.

[2] Montana limited the tribe’s ability to exercise its power

to exclude only as applied to the regulation of non-Indians on

non-Indian land, not on tribal land. See Merrion v. Jicarilla

Apache Tribe, 455 U.S. 130, 144-45 (1982) (recognizing a

tribe’s inherent authority to exclude non-Indians from tribal

land, without applying Montana); see also Atkinson Trading

Co. v. Shirley, 532 U.S. 645, 654 (2001) (holding that the

Navajo Nation’s power to tax, derived in part from its power

to exclude, should be considered under Montana because,

unlike in Merrion, the incidence of the tax fell “upon nonmembers on non-Indian fee land”); Bourland, 508 U.S. at 689

(noting that Montana established that “when an Indian tribe

conveys ownership of its tribal lands to non-Indians, it loses

any former right of absolute and exclusive use and occupation

of the conveyed lands”); Merrion, 455 U.S. at 144-45

(“Nonmembers who lawfully enter tribal lands remain subject

to the tribe’s power to exclude them. . . . When a tribe grants

a non-Indian the right to be on Indian land, the tribe agrees

not to exercise its ultimate power to oust the non-Indian as

long as the non-Indian complies with the initial conditions of

entry.” (emphasis in original)); Montana, 450 U.S. at 557

(recognizing a tribe’s inherent authority to condition the entry

of non-Indians on tribal land as a separate matter from

whether a tribe may condition the entry of non-Indians on

non-Indian land); Cohen’s Handbook of Federal Indian Law

§ 4.01[2][e], 220 (Nell Jessup Newton et al. eds., 2005) [here8036 WATER WHEEL CAMP v. LARANCE
inafter Cohen] (explaining that “[b]ecause the exclusionary

power is a fundamental sovereign attribute intimately tied to

a tribe’s ability to protect the integrity and order of its territory and the welfare of its members, it is an internal matter

over which the tribes retain sovereignty”); cf. Atkinson Trading Co., 532 U.S. 645 (holding that the Navajo Nation’s

power to exclude did not allow it to tax non-Indians on nonIndian fee land (emphasis added)).6

6To support its conclusion that Montana applies to a tribe’s inherent

authority to exclude persons from tribal land, the district court cited Plains

Commerce Bank v. Long Family Land and Cattle Co., Inc., 554 U.S. 316

(2008), and Hardin v. White Mountain Apache Tribe, 779 F.2d 476 (9th

Cir. 1985). Plains Commerce Bank considered a tribe’s authority to regulate the alienation of non-Indian land, not the tribe’s power to exclude

non-Indians from tribal lands or its sovereign interest in managing tribal

land. The district court misinterpreted passages from that opinion discussing Montana’s treatment of regulations that flow from a tribe’s inherent

tribal government powers on non-Indian lands to stand for the proposition

that a tribe’s power to exclude is subject to Montana. The case the relevant

passage in Plains Commerce Bank relies upon demonstrates the error in

the district court’s analysis. See 554 U.S. at 335 (citing Bourland, 508

U.S. at 691 n.11). In Bourland, the Court recognized that a tribe loses the

regulatory authority that implicitly exists through its power to exclude

when the land in question ceases to be tribal land, and cited Montana as

supporting that rule. In other words, loss of the power to exclude implies

the loss of the incidental power to regulate non-Indians unless a Montana

exception applies. Thus, Plains Commerce Bank does not support the district court’s conclusion that a tribe’s right to exclude may be exercised on

tribal land only if Montana is satisfied. 

Likewise, Hardin stated that the tribe’s exclusion of a criminal from the

reservation “falls within the Tribe’s civil powers” and, citing Montana,

reasoned that the ordinance was necessary for the health and safety of

tribal members. Hardin, 779 F.2d at 478. The court then cited Merrion,

455 U.S. at 144-45 (recognizing a tribe’s authority to exert its inherent

power of exclusion over a non-Indian on tribal land without applying

Montana), for the rule that tribes have the power to place conditions on

entry and that a non-Indian on tribal land remains subject to the risk that

the tribe will exercise its sovereign power of exclusion. Hardin, 779 F.2d

at 479. 

Reading Hardin to stand for the proposition that a tribe’s inherent

power of exclusion is subject to Montana would conflict with Supreme

WATER WHEEL CAMP v. LARANCE 8037
[3] Here, through its sovereign authority over tribal land,

the CRIT had power to exclude Water Wheel and Johnson,

who were trespassers on the tribe’s land and had violated the

conditions of their entry. Having established that the tribe had

the power to exclude, we next consider whether it had the

power to regulate. The authority to exclude non-Indians from

tribal land necessarily includes the lesser authority to set conditions on their entry through regulations. Merrion, 455 U.S.

at 144 (noting that the power to exclude “necessarily includes

the lesser power to place conditions on entry, on continued

presence, or on reservation conduct”); Bourland, 508 U.S. at

689 (noting that in opening up the Cheyenne Sioux Tribe’s

tribal lands for public use, Congress “eliminated the Tribe’s

power to exclude non-Indians from these lands, and with that

the incidental regulatory jurisdiction formerly enjoyed by the

Tribe”); id. at 691 n.11 (“Regulatory authority goes hand in

hand with the power to exclude.”); see also Montana, 450

U.S. at 557 (recognizing a tribe’s inherent authority to condition the entry of non-Indians on tribal land through regulations). 

As a general rule, both the Supreme Court and the Ninth

Circuit have recognized that Montana does not affect this fundamental principle as it relates to regulatory jurisdiction over

non-Indians on Indian land. See Bourland, 508 U.S. at 688-89

(describing Montana as establishing that when tribal land is

Court precedent, including the very case Hardin cites for support. Hardin

is best distinguished as considering the narrow question of whether the

tribe’s ordinance was an impermissible punishment against a non-Indian

for a criminal act. The court held the ordinance did not conflict with Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), reasoning that,

despite Oliphant’s prohibition against tribes asserting criminal jurisdiction

over non-Indians, civil jurisdiction remains. See Hardin, 779 F.2d at

478-79. Hardin referenced Montana’s second exception without considering whether it needed to do so, and appears to have cited the case primarily to support its conclusion that despite a lack of criminal jurisdiction,

tribes retain some forms of civil jurisdiction over non-Indians. See id. at

478. 

8038 WATER WHEEL CAMP v. LARANCE
converted to non-Indian land, a tribe loses its inherent power

to exclude non-Indians from that land and thereby also loses

“the incidental regulatory jurisdiction formerly enjoyed by the

Tribe”); see also Merrion, 455 U.S. at 144-45 (upholding a

tribal tax on non-Indians operating a business on tribal land

as a condition of entry derived from the tribe’s inherent power

to exclude, without applying Montana); Strate, 520 U.S. at

456 (noting that the land in question was equivalent to nonIndian land and that “Montana, accordingly, governs this

case”); Mescalero Apache Tribe, 462 U.S. at 330-31 (determining that Montana did not apply to the question of a tribe’s

regulatory authority over nonmembers on reservation trust

land because “Montana concerned lands located within the

reservation but not owned by the Tribe or its members”);

McDonald v. Means, 309 F.3d 530, 540 n.9 (9th Cir. 2002)

(as amended) (rejecting the argument that Montana applies to

tribal land because Montana limited its holding to non-Indian

lands and Strate confirmed that limitation); Burlington N. R.

Co. v. Red Wolf, 196 F.3d 1059, 1062-63 (9th Cir. 1999)

(“The threshold question in this appeal is whether Montana’s

main rule applies, that is, whether the property rights at issue

are such that the land may be deemed ‘alienated’ to nonIndians.”). 

[4] We must therefore conclude that the CRIT’s right to

exclude non-Indians from tribal land includes the power to

regulate them7 unless Congress has said otherwise, or unless

7Further bolstering our conclusion that the tribe has regulatory jurisdiction is the fact that this is an action to evict non-Indians who have violated

their conditions of entry and trespassed on tribal land, directly implicating

the tribe’s sovereign interest in managing its own lands. See Plains Commerce Bank, 554 U.S. at 334-35 (“By virtue of their incorporation into the

United States, the tribe’s sovereign interests are now confined to managing tribal land . . . protecting tribal self-government, and controlling internal relations.” (internal citations and quotation marks omitted)); United

States. v. Mazurie, 419 U.S. 544, 557 (1975) (“Thus it is an important

aspect of this case that Indian tribes are unique aggregations possessing

attributes of sovereignty over both their members and their territory.”); see

also Merrion, 455 U.S. at 145 n.12 (recognizing that a tribe’s sovereign

power over tribal lands is distinguishable from its power over reservation

land generally). 

WATER WHEEL CAMP v. LARANCE 8039
the Supreme Court has recognized that such power conflicts

with federal interests promoting tribal self government. Iowa

Mut. Ins. Co., 480 U.S. at 18 (“Tribal authority over activities

of non-Indians on reservation lands is an important part of

tribal sovereignty. Civil jurisdiction over such activities presumptively lies in the tribal courts unless affirmatively limited

by a specific treaty provision or federal statute.” (internal citations omitted)); Merrion, 455 U.S. at 146 (noting the “established views that Indian tribes retain those fundamental

attributes of sovereignty . . . which have not been divested by

Congress or by necessary implication of the tribe’s dependent

status”); Santa Clara Pueblo, 436 U.S. at 56 (“Congress has

plenary authority to limit, modify or eliminate the powers of

local self-government which the tribes otherwise possess.”).

[5] We see no evidence of congressional intent to limit the

CRIT’s regulatory jurisdiction in this instance, and the

Supreme Court has on only one occasion established an

exception to the general rule that Montana does not apply to

jurisdictional questions arising from the tribe’s authority to

exclude non-Indians from tribal land. See Hicks, 533 U.S.

353. In Hicks, the Court held that where a state has a competing interest in executing a warrant for an off-reservation

crime, the tribe’s power of exclusion is not enough on its own

to assert regulatory jurisdiction over state officers and Montana thus applies. Id. at 359-60 (rejecting the tribe’s argument

that it could exercise its regulatory authority over state officers as a condition of entry for purposes of executing a search

warrant). 

Even though in its analysis the Court interpreted Montana

broadly as applying to both Indian and non-Indian land, the

Court explicitly recognized that in some cases, land ownership “may sometimes be a dispositive factor” in establishing

a tribal court’s regulatory jurisdiction over non-Indians. Id. at

360. Hicks expressly limited its holding to “the question of

tribal-court jurisdiction over state officers enforcing state

law” and left open the question of tribal court jurisdiction

8040 WATER WHEEL CAMP v. LARANCE
over nonmember defendants generally. Id. at 358 n.2; id. at

371 (noting that the issue being considered concerned “a narrow category of outsiders”). Furthermore, the Court did not

overrule its own precedent specifying that Montana ordinarily

applies only to non-Indian land. 

We have recognized the limited applicability of Hicks. See

McDonald, 309 F.3d at 540 n.9 (rejecting the argument that

Montana should be extended to bar tribal jurisdiction over the

conduct of non-Indians on tribal land because doing so would

be inconsistent with Montana’s narrow holding and “[e]ven if

Hicks could be interpreted as suggesting that the Montana

rule is more generally applicable than either Montana or

Strate have allowed, Hicks makes no claim that it modifies or

overrules Montana”); see also Elliott v. White Mtn. Apache

Tribal Court, 566 F.3d 842, 850 (9th Cir. 2009) (acknowledging “the Supreme Court’s instruction that ownership of the

land may be dispositive in some cases” concerning the extent

of a tribe’s regulatory jurisdiction over a non-Indian and

explicitly rejecting the argument that Hicks forecloses tribal

court jurisdiction over non-Indians on tribal land). 

[6] To summarize, Supreme Court and Ninth Circuit precedent, as well as the principle that only Congress may limit a

tribe’s sovereign authority, suggest that Hicks is best understood as the narrow decision it explicitly claims to be. See

Hicks, 533 U.S. at 358 n.2. Its application of Montana to a

jurisdictional question arising on tribal land should apply only

when the specific concerns at issue in that case exist. Because

none of those circumstances exist here, we must follow precedent that limits Montana to cases arising on non-Indian land.

Doing otherwise would impermissibly broaden Montana’s

scope beyond what any precedent requires and restrain tribal

sovereign authority despite Congress’s clearly stated federal

interest in promoting tribal self-government. See Mescalero

Apache Tribe, 462 U.S. at 335-36 (recognizing that as a “necessary implication” of Congress’s broad commitment to further tribal self-government, “tribes have the power to manage

WATER WHEEL CAMP v. LARANCE 8041
the use of [their] territory and resources by both members and

nonmembers, to undertake and regulate economic activity

within the reservation, and to defray the cost of governmental

services by levying taxes” (internal citations omitted)). We

therefore hold that the CRIT has regulatory jurisdiction over

Water Wheel and Johnson for claims arising from their activities on tribal land, independent of Montana. 

[7] In this instance, where the non-Indian activity in question occurred on tribal land, the activity interfered directly

with the tribe’s inherent powers to exclude and manage its

own lands, and there are no competing state interests at play,

the tribe’s status as landowner is enough to support regulatory

jurisdiction without considering Montana. Finding otherwise

would contradict Supreme Court precedent establishing that

land ownership may sometimes be dispositve and would

improperly limit tribal sovereignty without clear direction

from Congress. 

B

[8] Since deciding Montana, the Supreme Court has specified limits to the extent of a tribe’s adjudicative jurisdiction

over non-Indians three times: first in Strate, then in Hicks, and

most recently in Plains Commerce Bank. In all three cases,

the Court articulated the general rule that a tribe’s adjudicative jurisdiction may not exceed its regulatory jurisdiction,

and in all three cases the Court found the tribe lacked regulatory, and therefore adjudicative, authority. The Supreme

Court has not yet considered the question of adjudicative

authority where regulatory jurisdiction exists. However, it is

clear that the general rule announced in Strate, and confirmed

in Hicks and Plains Commerce Bank, that adjudicative jurisdiction is confined by the bounds of a tribe’s regulatory jurisdiction, applies. Beyond that, because the Supreme Court has

repeatedly recognized that only Congress may restrict a

tribe’s inherent sovereignty, we must consider the question of

the CRIT’s adjudicative jurisdiction without contradicting the

8042 WATER WHEEL CAMP v. LARANCE
rules that have long governed tribes’ civil authority over nonIndians on tribal land. 

Because the CRIT has regulatory jurisdiction, there is no

danger that recognizing adjudicative jurisdiction would conflict with Strate, Hicks, or Plains Commerce Bank. Water

Wheel, Johnson, and the district court erroneously point to

Philip Morris USA, Inc. v. King Mountain Tobacco Co., Inc.,

569 F.3d 932 (9th Cir. 2009), for the proposition that Montana applies to questions of a tribe’s adjudicative authority. In

Philip Morris we determined that the Yakama Tribe lacked

regulatory, and therefore adjudicative, jurisdiction over nonIndian corporation Philip Morris regarding federal trademark

registration. 569 F.3d at 945 (Fletcher, W., J., concurring); see

also id. at 942.

[9] In reaching its conclusion, the panel articulated its

understanding of the rules for determining both regulatory and

adjudicative jurisdiction. It cited Hicks, Montana, and Strate

for the proposition that a tribe’s adjudicative authority does

not exceed its regulatory authority. Id. at 939. It then stated

that “[t]he Montana framework is applicable to tribal adjudicative jurisdiction, which extends no further than the Montana

exceptions,” id, and that “in this circuit, the Montana analysis

is controlling in tribal jurisdiction cases.” Id. at 941. But

Water Wheel’s and Johnsons’s suggestion that these statements require us to apply Montana to the question of adjudicative jurisdiction is unconvincing when considered against

context and controlling precedent.

The majority’s statement in Phillip Morris that Montana

applies to questions of adjudicative jurisdiction only aligns

with Supreme Court precedent if interpreted as saying that to

determine whether adjudicative jurisdiction exists, a court

must first determine whether regulatory jurisdiction exists.

See Hicks, 533 U.S. at 357, 374 (analyzing regulatory jurisdiction first, then determining that because the tribe lacked

regulatory jurisdiction it necessarily lacked adjudicative jurisWATER WHEEL CAMP v. LARANCE 8043
diction); see also Plains Commerce Bank, 554 U.S. at 330

(holding that “the Tribal Court lacks jurisdiction to hear the

Longs’ discrimination claim because the Tribe lacks the civil

authority to regulate the Bank’s sale of its fee land.” (emphasis added)). 

[10] Thus, if Montana applies to the question of regulatory

jurisdiction, it necessarily limits the court’s inquiry into adjudicative jurisdiction because the Supreme Court has held that

a tribe’s adjudicative jurisdiction may not exceed its regulatory jurisdiction. Philip Morris did not and could not overrule

McDonald, where the Ninth Circuit expressly rejected the

argument that Hicks applies to tribal land outside the specific

circumstances that existed in that case, and it could not overrule Supreme Court precedent establishing and confirming the

rule that Montana’s analysis applies specifically to non-Indian

land. For those reasons, Philip Morris’s comments regarding

jurisdiction are best understood as a reiteration of the

Supreme Court’s rule that a tribe’s adjudicative jurisdiction

may not exceed its regulatory jurisdiction. 

Furthermore, Philip Morris did not involve a question

related to the tribe’s authority to exclude or its interest in

managing its own land. To the contrary, the activity in question occurred off reservation. The tribal court clearly lacked

jurisdiction and, arguably, Montana did not even apply

because there the Court considered a tribe’s regulatory jurisdiction over activities on non-Indian fee land within the reservation, not beyond the reservation’s borders where the tribe

lacked authority to regulate a non-Indian. Atkinson Trading

Co., 532 U.S. at 657 n.12 (observing that except in limited

circumstances, “there can be no assertion of civil authority

beyond tribal lands”); see Philip Morris, 569 F.3d at 945-46

(Fletcher, W., J., concurring) (noting that the panel majority’s

opinion answers a simple and straightforward question with

“an extended opinion containing a great deal of dicta”). 

Because recognizing adjudicative jurisdiction would not

conflict with the rule articulated in Strate, Hicks, and Plains

8044 WATER WHEEL CAMP v. LARANCE
Commerce Bank, we consider whether recognizing adjudicative jurisdiction would conflict with earlier precedent. Prior to

Hicks, the general rule for adjudicative authority over the conduct of non-Indians on tribal land was that tribes had jurisdiction. See Iowa Mut. Ins. Co., 480 U.S. at 18 (observing that

a tribe’s inherent civil jurisdiction over non-Indian activities

on the reservation should be presumed unless Congress has

said otherwise); Santa Clara Pueblo, 436 U.S. at 65 (“Tribal

courts have repeatedly been recognized as appropriate forums

for the exclusive adjudication of disputes affecting important

personal and property interests of both Indians and nonIndians.”); Williams v. Lee, 358 U.S. 217, 220 (1959) (recognizing the traditional rule that if a crime occurs within a reservation “by or against an Indian, tribal jurisdiction or that

expressly conferred on other courts by Congress has remained

exclusive,” and accordingly upholding exclusive tribal court

jurisdiction over an action brought by a non-Indian against an

Indian for an on-reservation debt).

The Supreme Court recently reaffirmed those long-standing

principles when it recognized the general rule that a tribe has

plenary jurisdiction over tribal land until or unless that land

is converted to non-Indian land. See Plains Commerce Bank,

554 U.S. at 328 (“Our cases have made clear that once tribal

land is converted into fee simple, the tribe loses plenary jurisdiction over it.”); see also Bourland, 508 U.S. at 689 (recognizing that the change in land status from Indian to non-Indian

abrogates the tribe’s power to exclude and “implies the loss

of regulatory jurisdiction over the use of the land by others”).

[11] Here, the land is tribal land and the tribe has regulatory jurisdiction over Water Wheel and Johnson. While it is

an open question as to whether a tribe’s adjudicative jurisdiction is equal to its regulatory jurisdiction, the important sovereign interests at stake, the existence of regulatory jurisdiction,

and long-standing Indian law principles recognizing tribal

sovereignty all support finding adjudicative jurisdiction here.

Any other conclusion would impermissibly interfere with the

WATER WHEEL CAMP v. LARANCE 8045
tribe’s inherent sovereignty, contradict long-standing principles the Supreme Court has repeatedly recognized, and conflict with Congress’s interest in promoting tribal selfgovernment. Accordingly, we hold that in addition to regulatory jurisdiction, the CRIT has adjudicative jurisdiction over

both Water Wheel and Johnson.8

C

Montana does not apply to this case. However, because we

disagree not only with the district court’s application of the

case in the first place, but also with its interpretation of the

case as it applies to Johnson, we briefly explain why, even if

Montana applied, the tribe would have subject matter jurisdiction. 

Water Wheel and Johnson propose that Montana’s first

exception requires a consensual relationship and that the relationship between the defendants and the tribe was not consen8The district court correctly rejected Water Wheel’s argument that the

CRIT waived tribal jurisdiction. Water Wheel’s rights under the lease terminated when it expired in 2007. Nevertheless, the corporation relies on

a parsed reading of the lease concerning the Secretary of the Interior’s

powers to enforce its provisions. The cited language does not constitute a

clear and unmistakable waiver of the CRIT’s sovereign power. See Merrion, 455 U.S. at 148; Ariz. Public Serv. Co. v. ASPAAS, 77 F.3d 1128,

1135 (9th Cir. 1995). 

Water Wheel also fails in arguing that (1) BIA regulations preclude

tribal court jurisdiction and (2) its notice to the BIA of tribal harassment

triggered the equivalent of a dispute resolution process that negates the

tribe’s authority to evict. Nothing in the BIA regulations limits what the

tribe can do and the regulations specifically recognize that tribes may

invoke remedies available to them under a lease. 25 C.F.R.

§ 162.619(a)(3). Furthermore, the “extent of the BIA’s policing of Indian

leases is to ensure that the lessees, whether Indian or non-Indian, fulfill

their contractual obligations . . . it has no statutory or regulatory authority

to take action against an Indian lessor. Such actions must be brought in

tribal or federal court.” Hawley Lake Homeowners’ Ass’n v. Deputy Assistant Sec’y, 13 IBIA 276, 289 (1985). 

8046 WATER WHEEL CAMP v. LARANCE
sual. They also suggest that we may not consider the second

Montana exception because the tribe failed to argue that

exception before the district court. As an initial matter, we

disagree that the tribal parties waived their arguments regarding the second Montana exception. They sufficiently preserved both jurisdictional grounds, on which the tribal courts

expressly relied in reaching their decisions and which the

tribal parties raised in their district court brief. See O’Rourke

v. Seaboard Surety Co., 887 F.2d 955, 957 (9th Cir. 1989)

(“There is no bright-line rule to determine whether a matter

has been properly raised. A workable standard, however, is

that the argument must be raised sufficiently for the trial court

to rule on it.” (internal citations omitted)). 

Regarding claims related to Water Wheel, the district court

correctly found that the corporation’s long-term business

lease with the CRIT for the use of prime tribal riverfront

property established a consensual relationship and that the

tribe’s eviction action bears a close nexus to that relationship.

The corporation had full knowledge that the leased land was

tribal property and that under the lease’s terms, CRIT laws

and regulations applied to the land and Water Wheel’s operations. The tribe clearly had authority to regulate the corporation’s activities under Montana’s first exception and—

considering that the business also involved the use of tribal

land and that the business venture itself constituted a significant economic interest for the tribe—under the second exception as well. Montana, 450 U.S. at 565. 

The district court then considered whether Johnson’s personal twenty-two-year relationship with the CRIT was subjectively voluntary and consensual under Montana’s first

exception.9 The court erred in applying a subjective test to the

9To assess Johnson’s subjective understanding of his relationship with

the tribe, the district court improperly relied on the Second Declaration of

Robert Johnson, which was not before the tribal court. See Nat’l Farmers

Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985). Because

WATER WHEEL CAMP v. LARANCE 8047
question of subject matter jurisdiction, which is not required

under Montana or its federal common law progeny, and is

irrelevant to resolving subject matter jurisdiction over a tort

claim. The Supreme Court has indicated that tribal jurisdiction depends on what non-Indians “reasonably” should “anticipate” from their dealings with a tribe or tribal members on

a reservation. Plains Commerce Bank, 554 U.S. at 338. 

Regarding the tribe’s regulatory jurisdiction over the

breach of contract claim against Johnson personally, Johnson

argues the tribe lacks jurisdiction because any relationship he

entered into was on behalf of the corporation and not himself.

To support his position, Johnson cites Commodity Futures

Trading Commission v. Weintraub, 471 U.S. 343, 348 (1985)

(“As an inanimate entity, a corporation must act through

agents.”). Outside of the Indian law context, this argument is

often couched in terms of the “fiduciary shield rule” doctrine,

an equitable doctrine courts sometimes use to insulate corporate employees acting in their official capacities from personal jurisdiction in a distant forum. Robert A. Koenig,

Personal Jurisdiction and the Corporate Employee: Minimum

Contacts Meet the Fiduciary Shield, 38 Stan. L. Rev. 813,

813, 818 (1986). In that context, the Supreme Court has

rejected mechanical application of the rule and instructed that

courts should consider the circumstances to determine

whether a defendant should “reasonably anticipate being

haled into court” in the forum state. Calder v. Jones, 465 U.S.

783, 790 (1984) (quoting World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 297 (1980)). Specifically, courts

should consider “the relationship among the defendant, the

forum, and the litigation.” Keeton v. Hustler Magazine, Inc.,

the district court’s review is akin to appellate review of the tribal court

record, this was error. Cf. id. at 856 (“[T]he orderly administration of justice in the federal court will be served by allowing a full record to be

developed in the Tribal Court before either the merits or any question concerning appropriate relief is addressed.”). 

8048 WATER WHEEL CAMP v. LARANCE
465 U.S. 770, 775 (1984) (quoting Shaffer v. Heitner, 433

U.S. 186, 204 (1977)). 

Subject matter jurisdiction, on the other hand, concerns the

authority of a court to hear cases of a particular subject matter

and usually has nothing to do with the individual actions of

the parties. But under Montana’s first exception, a tribe’s

exercise of subject matter jurisdiction over a non-Indian

defendant depends on the existence of a “consensual relationship” between the non-Indian defendant and the tribe or its

members. Thus, the nature and extent of an individual defendant’s actions come into play. 

We have recognized that the “jurisprudential contours of

what reasons suffice for the court to disregard the corporate

form for jurisdictional purposes are somewhat indistinct.”

Davis v. Metro Prods., Inc., 885 F.2d 515, 520 (9th Cir.

1989). Nevertheless, we have held that “the corporate form

may be ignored” in cases where the corporation is the “alter

ego” of the defendant, or where there is an “identity of interests” between the corporation and the individual. Id. at

520-21. 

In this case, it is a matter of established fact that Johnson

was Water Wheel’s “alter ego” and, thus, “corporate separateness is illusory.” Katzir’s Floor and Home Design, Inc. v. MMLS.com, 394 F.3d 1143, 1149 (9th Cir. 2004). Any actions

Johnson took on behalf of Water Wheel, he also took on

behalf of himself. We therefore consider whether Johnson as

an individual entered into a consensual relationship with the

tribe, without regard to any protections the corporate form

might otherwise offer. 

For purposes of determining whether a consensual relationship exists under Montana’s first exception, consent may be

established “expressly or by [the nonmember’s] actions.”

Plains Commerce Bank, 554 U.S. at 337. There is no requirement that Johnson’s commercial dealings with the CRIT be a

WATER WHEEL CAMP v. LARANCE 8049
matter of written contract or lease actually signed by Johnson.

See Montana, 450 U.S. at 565 (tribes may regulate the activities of nomembers who enter into “commercial dealing, contracts, leases, or other arrangements” (emphasis added)). We

are to consider the circumstances and whether under those circumstances the non-Indian defendant should have reasonably

anticipated that his interactions might “trigger” tribal authority. Id. at 338.

Johnson owned and operated Water Wheel on tribal land

for more than twenty years and had extensive dealings with

the CRIT before the lease expired. Additionally, Johnson was

on notice through the leases’s explicit terms that Water

Wheel, its agents, and employees were subject to CRIT laws,

regulations, and ordinances. These facts adequately support

the tribal court’s conclusion that Johnson had entered into a

consensual relationship with the tribe and could reasonably

anticipate that the tribe would exercise its jurisdictional

authority. Johnson’s subjective beliefs regarding his relationship with the tribe do not change the consensual nature of that

relationship for purposes of regulatory jurisdiction. Moreover,

the tribe’s claims for unpaid rent and related damages arose

directly from this relationship. 

As noted above, the commercial dealings between the tribe

and Johnson involved the use of tribal land, one of the tribe’s

most valuable assets. Thus, if Montana applied to the breach

of contract claim, either exception would provide regulatory

jurisdiction over Johnson. 

As for the trespass claim, there is no legal or logical basis

to require a consensual relationship between a trespasser and

the offended landowner. This is particularly true when the

trespass is to tribal land, the offended owner is the tribe, and

the trespasser is not a tribal member. Merrion, 455 U.S. at

144. If tribes lacked authority to evict holdover tenants and

their agents, tribes would be discouraged from entering into

8050 WATER WHEEL CAMP v. LARANCE
financially beneficial leases with nonmembers for fear of losing control over tribal land. 

Evaluating the trespass claim under Montana’s second

exception, unpaid rent and percentages of the business’s gross

receipts here totaled $1,486,146.42 at the time of the tribal

court’s judgment. Johnson’s unlawful occupancy and use of

tribal land not only deprived the CRIT of its power to govern

and regulate its own land, but also of its right to manage and

control an asset capable of producing significant income.

Thus, in addition to the tribe’s undisputed authority to eject

trespassers from its own land, Montana’s second exception

would provide regulatory jurisdiction. 

[12] Our analysis of adjudicative jurisdiction, see supra

Part III.B, applies once regulatory jurisdiction is established

under Montana, and, accordingly, the tribe would have both

regulatory and adjudicative jurisdiction over Water Wheel

and Johnson even if Montana applied.

IV

[13] To exercise civil authority over a defendant, a tribal

court must have both personal jurisdiction and subject matter

jurisdiction. See 18 William Meade Fletcher, Fletcher Cyclopedia of the Law of Corporations § 8644.50 (rev. perm. ed.,

2006) (“Personal jurisdiction is, of course, distinguishable

from subject matter jurisdiction.”); see also Cohen § 7.02[2],

604 (“For a tribal court to hear a case, it must have not only

subject matter jurisdiction under both tribal and federal law,

but also personal jurisdiction over the defendant.”). One of

the most “firmly established principles of personal jurisdiction” is that personal jurisdiction exists over defendants physically present in the forum state. Burnham v. Superior Court,

495 U.S. 604, 610 (1990). In-state personal service also

serves as a basis for personal jurisdiction. Id. at 615-16. 

[14] Johnson lived on tribal land, which on its own serves

as a basis for personal jurisdiction. Additionally, he was

WATER WHEEL CAMP v. LARANCE 8051
served with tribal process at the Water Wheel location on

tribal land, and that service within the tribal court’s territorial

jurisdiction is also sufficient to confer personal jurisdiction.

We therefore hold that the tribal court has personal jurisdiction over Johnson. 

To the extent Johnson argues that the fiduciary shield rule

prevents the tribal court from exercising personal jurisdiction

over him, his argument fails. Assuming the fiduciary shield

rule applies to defendants present in the forum state, it would

not protect Johnson, an “alter ego” to Water Wheel. See Katzir’s Floor & Home Design, Inc., 394 F.3d at 1149; see also

Keeton, 465 U.S. at 781 n.13 (“[W]e today reject the suggestion that employees who act in their official capacity are

somehow shielded from suit in their individual capacity. . . .

Each defendant’s contacts with the forum State must be

assessed individually.”) (citing Calder, 465 U.S. at 790). Furthermore, courts have held that jurisdiction over a corporate

agent is proper where the agent was not faithfully pursuing

corporate interests. See Koenig, supra, at 824-25. 

Absent the fiduciary shield, a court may exercise personal

jurisdiction over a defendant where that defendant has sufficient minimum contacts with the forum state such that the suit

does not offend “traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316

(1945). In his role as president and owner of the corporation,

Johnson failed to pay rent and receipts owed to the tribe pursuant to the lease and failed to surrender the property peacefully. He also failed to adhere to corporate formalities in that

he had, among other things, commingled personal and business funds, failed to maintain separate financial records, and

borrowed and used Water Wheel funds for his personal use

and the use of third persons, instead of paying the CRIT.

Johnson had notice through the lease that, as an agent of

Water Wheel, he was subject to CRIT laws, regulations, and

ordinances. He lived and operated a business on the tribe’s

8052 WATER WHEEL CAMP v. LARANCE
land within its reservation for more than twenty years. Certainly it was reasonable to anticipate that he could be haled

into tribal court. The tribal court properly found personal

jurisdiction over Johnson for the claims related to unpaid rent

due under the lease and for attorney’s fees.

[15] As for damages related to his unlawful trespass, for

more than nineteen months after the lease expired Johnson

continued unauthorized operation of a business on tribal land,

collected rents, and paid absolutely nothing to the tribe. The

tribal court had personal jurisdiction over Johnson for purposes of the trespass claim and damages arising from that violation. See Calder, 465 U.S. at 790. 

[16] Johnson clearly had sufficient minimum contacts with

the CRIT and its tribal land to satisfy considerations of fairness and justice. Int’l Shoe Co., 326 U.S. at 316; see also

Davis, 885 F.2d 515, 520 (9th Cir. 1989). That he acted

unlawfully and wrongfully on behalf of a corporation is no

defense. Calder, 465 U.S. at 790. 

V

The judgment of the district court is AFFIRMED as to

Water Wheel Camp Recreational Area, Inc., and REVERSED

with respect to Robert Johnson. The district court’s order

directing the tribal court to vacate its judgment against Robert

Johnson and to cease any litigation concerning Robert Johnson personally is VACATED.10 The case is REMANDED for

entry of judgment upholding the tribal court’s jurisdiction.

Costs are awarded to the tribal parties.

10The CRIT’s motion for judicial notice also includes documents outside the tribal court record and is therefore denied. See supra note 9. 

WATER WHEEL CAMP v. LARANCE 8053