_____________

No. 92-3359

_____________

A-1 Contractors; Lyle Stockert, *

*

Appellants, *

*

v. *

*

Honorable William Strate, * Appeal from the United States

Associate Tribal Judge of the * District Court for the

Tribal Court of the Three * District of North Dakota.

Affiliated Tribes of the Fort *

Berthold Indian Reservation; *

Three Affiliated Tribes of the *

Fort Berthold Indian *

Reservation, The Tribal Court; *

Lyndon Benedict Fredericks; *

Kenneth Lee Fredericks; Paul *

Jonas Fredericks; Hans *

Christian Fredericks; Jeb Pius *

Fredericks; Gisela Fredericks, *

*

Appellees. *

_____________

Submitted: May 23, 1995

 Filed: February 16, 1996

_____________

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, McMILLIAN,

FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD

ARNOLD, and MURPHY, Circuit Judges, en banc.

_____________

HANSEN, Circuit Judge.

In this case, we are asked to decide whether an American

Indian Tribal Court has subject matter jurisdiction over a tort

case which arose out of an automobile accident which occurred

between two non-Indian parties on an Indian reservation. A divided
 1

There is no proof (as opposed to allegations) that we can

find in the record to support the district court's finding of

fact that A-1 was in performance of the contract at the time of

the accident. The district court made its fact-findings based on

2

panel of this court previously concluded that the Indian tribe

retained the inherent sovereign power to allow the tribal court to

exercise subject matter jurisdiction over the dispute. After

granting the suggestion of A-1 Contractors and Lyle Stockert to

rehear this case en banc, we vacated the panel opinion. We now

hold that the tribal court does not have subject matter

jurisdiction over the dispute.

I.

On November 9, 1990, on a state highway on the Fort Berthold

Indian Reservation in west-central North Dakota, a gravel truck

owned by A-1 Contractors and driven by Lyle Stockert (an A-1

employee) and a small car driven by Gisela Fredericks collided.

Mrs. Fredericks suffered serious injuries and was hospitalized for

24 days. A-1 is a non-tribal company located in Dickinson, North

Dakota. Stockert is not a member of the tribe and resides in

Dickinson, North Dakota. Mrs. Fredericks is not a member of the

tribe; however, she resides on the reservation, she was married to

a tribal member (now deceased), and her adult children are enrolled

members of the tribe.

At the time of the accident, A-1 was working on the

reservation under a subcontract agreement with LCM Corporation, a

corporation wholly owned by the tribe. Under the subcontract, A-1

performed excavating, berming, and recompacting work in connection

with the construction of a tribal community building. A-1

performed all of the work under the subcontract within the

boundaries of the reservation. The record is not clear whether

Stockert was engaged in work under the contract at the time of the

accident.1
the pleadings in this case, not upon the evidence.

 2The Three Affiliated Tribes -- Mandan, Hidatsa, and Arikara

-- are federally recognized Indian tribes which exercise their

sovereignty under a federally approved constitution adopted

pursuant to the Indian Reorganization Act of 1934, 25 U.S.C.

§§ 461-479.

3

In May 1991, Mrs. Fredericks sued A-1, Stockert, and

Continental Western Insurance Company (A-1's insurer), in the

Tribal Court for the Three Affiliated Tribes2 of the Fort Berthold

Indian Reservation. Mrs. Fredericks' adult children also filed

loss of consortium claims as part of the suit. Mrs. Fredericks and

her adult children sought damages in excess of $13 million for

personal injury, loss of consortium, and medical expenses.

A-1, Stockert, and Continental Western made a special

appearance in tribal court and moved to dismiss the Frederickses'

suit, contending that the tribal court lacked personal and subject

matter jurisdiction. The tribal court denied the motion and found

that it had personal and subject matter jurisdiction over the suit

brought by Gisela Fredericks. Fredericks v. Continental Western

Ins. Co., No. 5-91-A04-150, slip op at 1.24(d) (Fort Berthold

Tribal Ct. Sept. 4, 1991). Specifically, the tribal court found

that it had personal jurisdiction over the parties based on Chapter

1, section 3 of the Tribal Code because Mrs. Fredericks is a

resident of the reservation and because A-1 had "entered and

transacted business within the territorial boundaries of the

Reservation." Id. at 1.24(c). The tribal court also concluded

that it had subject matter jurisdiction over the action because its

inherent tribal sovereignty had not been limited by treaty or

federal statute. See id. at 1.24(d). Given the tribal court's

conclusion that it had jurisdiction over the claims of Gisela

Fredericks, the tribal court did not reach the question of its

jurisdiction over the consortium claims brought by her children,

who were tribal members.
4

A-1, Stockert, and Continental Western appealed to the

Northern Plains Intertribal Court of Appeals. The Intertribal

Court of Appeals affirmed the tribal court and remanded the case to

the tribal court for further proceedings. Fredericks v.

Continental Western Ins. Co., Northern Plains Intertribal Ct. App.

(Jan. 8, 1992). The Intertribal Court of Appeals took a broad view

of the tribe's civil authority over the non-Indians involved in

this dispute:

Like any sovereign, Three Affiliated Tribes has [sic] an

interest in providing a forum for peacefully resolving

disputes that arise in their geographic jurisdiction and

protecting the rights of those who are injured within such

jurisdiction.

Slip op. at 7. Continental Western was dismissed from the case

without prejudice pursuant to an agreement of the parties.

Before proceedings resumed in the tribal trial court, A-1 and

Stockert filed this case in the United States District Court for

the District of North Dakota against Mrs. Fredericks and her

children (hereinafter "the Frederickses"), the Honorable William

Strate, Associate Tribal Judge for the Tribal Court of the Three

Affiliated Tribes of the Fort Berthold Indian Reservation, and the

tribal court itself. A-1 and Stockert sought injunctive and

declaratory relief. They asked the district court to declare that

the tribal court had no jurisdiction over this matter, to enjoin

the Frederickses from proceeding against them in the tribal court,

and to enjoin the tribal judge and the tribal court (hereinafter

the "tribal defendants") from asserting jurisdiction over them.

The tribal defendants initially raised the affirmative defense

of sovereign immunity, but subsequently consented to the suit for

the limited purpose of defending the federal law claims for

injunctive relief. Both sides filed motions for summary judgment

on the issue of tribal court jurisdiction. The district court
 3

The consortium claims of Mrs. Fredericks' adult children

are not a part of this appeal because neither the tribal courts

nor the federal district court addressed the tribal courts'

jurisdiction over those claims.

5

denied the summary judgment motion of A-1 and Stockert, and it

granted the summary judgment motions of the Frederickses and the

tribal defendants. A-1 Contractors v. Strate, Civil No. A1-92-94

(D.N.D. Sept. 17, 1992). The district court decided that the only

factual dispute was whether Mrs. Fredericks resided on or off the

reservation, which was irrelevant to the issue of tribal court

jurisdiction. Id. at 4-5. The district court then decided that

the tribal court had both personal and subject matter jurisdiction,

and concluded that Indian tribes have retained inherent sovereignty

to exercise jurisdiction over civil causes of action between nonIndians that arise on the reservation unless specifically limited

by treaty or federal statute. Id. at 9-10. The district court

found that there was no treaty or statute that limited the tribe's

jurisdiction in this case. Id. at 10. A-1 and Stockert appealed

on the issue of subject matter jurisdiction over the claims of Mrs.

Fredericks.3

A panel of this court affirmed the district court in a two-toone decision. A-1 Contractors v. Strate, No. 92-3359, 1994 WL

666051 (8th Cir. Nov. 29, 1994). A-1 and Stockert requested review

of the panel's decision en banc. We granted their request, vacated

the panel opinion, and set this case for rehearing en banc.

II.

We review de novo the district court's decision both granting

and denying summary judgment. Get Away Club, Inc. v. Coleman, 969

F.2d 664, 666 (8th Cir. 1992). We agree with the district court

that this case presents no relevant factual disputes for our

review. The only question presented, whether the tribal court has

jurisdiction over this dispute, is a question of law. FMC v.
6

Shoshone-Bannock Tribes, 905 F.2d 1311, 1313-14 (9th Cir. 1990),

cert. denied, 499 U.S. 943 (1991).

The specific question presented for our resolution is whether

the tribal court has civil jurisdiction over this dispute which

arose between two non-Indian parties on the Fort Berthold

Reservation. A-1 and Stockert argue that under Supreme Court case

law, the tribe does not have the inherent sovereign authority to

exercise civil jurisdiction over non-Indians unless the dispute

implicates an important tribal interest. See, e.g., Montana v.

United States, 450 U.S. 544 (1981); South Dakota v. Bourland, 113

S. Ct. 2309, 2320 (1993); Brendale v. Confederated Tribes and Bands

of the Yakima Indian Nation, 492 U.S. 408, 426-27 (1989)

(plurality). A-1 and Stockert argue that because this case

involves no such tribal interest, the district court erred in

holding that the tribal court had subject matter jurisdiction over

this dispute. The Frederickses and the tribal defendants

(collectively "the appellees") argue that a different line of

Supreme Court authority governs this issue. The appellees argue

that language from this line of cases indicates that the district

court correctly concluded that tribal courts have inherent civil

jurisdictional authority over all disputes arising on the

reservation, regardless of whether the parties involved are tribal

members. See, e.g., Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9

(1987); National Farmers Union Ins. Cos v. Crow Tribe of Indians,

471 U.S. 845 (1985); Merrion v. Jicarilla Apache Tribe, 455 U.S.

130, 137 (1982); Williams v. Lee, 358 U.S. 317 (1959). The

appellees contend that the district court correctly found that the

tribe had full geographical/territorial jurisdiction over this

dispute. The issue presented for our review is largely unresolved

and has generated a great deal of interest and commentary. See,

e.g., Allison S. Dussias, Geographically-Based and Membership-Based

Views of Indian Tribal Sovereignty: The Supreme Court's Changing

Vision, 55 U. Pitt. L. Rev. 1 (1993) (detailing and criticizing the
 4

Stated another way: "A tribe's inherent sovereignty . . .

is divested to the extent it is inconsistent with the tribe's

dependent status, that is, to the extent it involves the tribe's

`external relations.'" Brendale, 492 U.S. at 425-26 (plurality)

(citing United States v. Wheeler, 435 U.S. 313, 326 (1978)). The

tribe's external relations are generally those involving

nonmembers of the tribe. See id.

7

Supreme Court's increasing emphasis on membership-based

sovereignty).

In our view, the standards articulated in Montana v. United

States, 450 U.S. 544 (1981), and subsequent cases applying those

standards, control the resolution of this dispute. In Montana, the

Supreme Court specifically addressed the reach of tribal civil

jurisdiction over non-Indian parties and found that:

the Indian tribes retain their inherent power to

determine tribal membership, to regulate domestic

relations among members, and to prescribe rules of

inheritance for members. But 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. 

 Id. at 564 (citations omitted). The Court then announced the

general principle that "the inherent sovereign powers of an Indian

tribe do not extend to the activities of nonmembers of the tribe."

Id. at 565.4

Indian tribes, however, do "retain inherent sovereign

authority to exercise some forms of civil jurisdiction over nonIndians on their reservations." Id. (emphasis added). This

jurisdiction arises: (1) when nonmembers "enter consensual

relationships with the tribe or its members, through commercial

dealing, contracts, leases, or other arrangements" or (2) when a

nonmember's "conduct threatens or has some direct effect on the
8

political integrity, the economic security, or the health or

welfare of the tribe." Id. at 565-66 (citations omitted). These

two situations are the "two exceptions" to Montana's general rule

that an Indian tribe does not have inherent sovereign powers over

the activities of nonmembers. Bourland, 113 S. Ct. at 2320. In

our view, the tribal court in this case would not have subject

matter jurisdiction under Montana unless the appellees can

establish the existence of a tribal interest under either of the

two exceptions.

The Supreme Court has reiterated or reaffirmed the Montana

analysis of civil tribal jurisdiction over non-Indians a number of

times. Bourland, 113 S. Ct. at 2319 (reasserting the centrality of

the observation in Montana that "exercise of tribal power beyond

what is necessary to protect tribal self-government or to control

internal tribal relations is inconsistent with the dependent status

of the tribes, and so cannot survive without express congressional

delegation"); County of Yakima v. Confederated Tribes and Bands of

Yakima Indian Nation, 502 U.S. 251, 267 (1992) (citing Montana in

referring to the "long line of cases exploring the very narrow

powers reserved to tribes over the conduct of non-Indians within

their reservations"); Duro v. Reina, 495 U.S. 676, 687-88 (1990)

(criminal jurisdiction case reciting Montana's observation that

"the inherent sovereign powers of an Indian tribe do not extend to

the activities of nonmembers of the tribe" and that civil tribal

jurisdiction over non-Indians on the reservation typically involves

situations arising from property ownership within the reservation

or the "consensual relationships" outlined in Montana), overruled

by statute on other grounds, 25 U.S.C. § 1301(2) & (3); Brendale,

492 U.S. at 426-27 (plurality) (following Montana principles and

concluding there was no tribal interest which allowed the tribe to

exercise authority over nonmembers on fee lands within the

reservation). Perhaps the Court's most emphatic reiteration of

these standards is its recent statement that "after Montana, tribal
9

sovereignty over nonmembers `cannot survive without express

congressional delegation.'" Bourland, 113 S. Ct. at 2320 n.15.

The appellees argue that instead of applying the Montana

analysis, we should resolve this case under the Supreme Court's

decisions in Iowa Mutual, National Farmers Union, Williams v. Lee,

and Merrion. In our view, none of those cases supports the

appellees' contentions that the tribal court has the broad civil

subject matter jurisdiction the tribal courts and the district

court found in this case. In Iowa Mutual, the Court held only that

exhaustion of tribal remedies is required before a federal district

court can decide the issue of federal court jurisdiction. 480 U.S.

at 18-19; see also Brendale, 492 U.S. at 427 n.10 (the plurality

specifically observed that Iowa Mutual only established an

exhaustion rule and did not decide whether the tribe had

jurisdiction over the nonmembers involved). In reaching its

conclusion on the exhaustion requirement, the Court offered the

following observation upon which the appellees rely heavily:

Tribal authority over the activities of non-Indians on

reservation lands is an important part of tribal

sovereignty. See Montana v. United States, 450 U.S. 544,

565-66 (1981) [other citations omitted]. Civil

jurisdiction over such activities presumptively lies in

the tribal courts unless affirmatively limited by a

specific treaty provision or federal statute.

Iowa Mutual, 480 U.S. at 18. The appellees argue that this

language indicates that Indian tribes retain unrestricted

territorial civil jurisdiction unless that jurisdiction has been

affirmatively limited by treaty or federal statute. The appellees

contend that like a state, the tribe retains full sovereignty over

all matters arising on the reservation unless and until that

jurisdiction is divested by federal law. The appellees further

argue that consistent with Iowa Mutual, the tribal court may

exercise subject matter jurisdiction in this case because it
10

happened on the reservation and there has been no affirmative

divestment of the tribe's authority.

In our view, the appellees' reading of this isolated language

from Iowa Mutual is unnecessarily broad and conflicts with the

principles of Montana. This language from Iowa Mutual can and

should be read more narrowly and in harmony with the principles set

forth in Montana, which the Court cites in making those

observations. When the Court observes in Iowa Mutual that

"[t]ribal authority over the activities of non-Indians on

reservation lands is an important part of tribal sovereignty," 480

U.S. at 18, the Court cites Montana and thus is referring to the

types of activities, like consensual contractual relationships (the

first Montana exception), that give rise to tribal authority over

non-Indians under Montana. Likewise, when the Court goes on to say

"[c]ivil jurisdiction over such activities presumptively lies in

the tribal courts unless affirmatively limited by a specific treaty

provision or federal statute," id. (emphasis added), the Court

again is referring to a tribe's civil jurisdiction over tribalbased activities that exists under Montana. We recently

interpreted the Iowa Mutual case in just such a fashion, stating:

"Civil jurisdiction over tribal-related activities on reservations

presumptively lies in the tribal courts unless affirmatively

limited by a specific treaty provision or by federal statute."

Duncan Energy v. Three Affiliated Tribes, 27 F.3d 1294, 1299 (8th

Cir. 1994) (emphasis added) (citing Iowa Mutual, 480 U.S. at 18).

Hence, Iowa Mutual should not be read to expand the category of

activities which Montana described as giving rise to tribal

jurisdiction over non-Indians or nonmembers. Instead, we read it

within the parameters of Montana. 

National Farmers Union, like Iowa Mutual, was an exhaustion

case which did not decide whether tribes had jurisdiction over

nonmembers. Brendale, 492 U.S. at 427 n.10. Nonetheless, the

appellees contend that we should read National Farmers Union as a
11

limitation on the reach of Montana because National Farmers Union

limited the reach of Oliphant v. Suquamish Indian Tribe, 435 U.S.

191 (1978), a criminal tribal jurisdiction case upon which Montana

relied. In Oliphant, the Court had concluded that tribal courts

have no criminal jurisdiction over non-Indians because the tribe

did not retain the inherent authority to exercise that type of

jurisdiction. 435 U.S. at 208-10. The Court in National Farmers

Union stated that "the question whether a tribal court has the

power to exercise civil subject-matter jurisdiction over nonIndians in a case of this kind is not automatically foreclosed, as

an extension of Oliphant would require." 471 U.S. at 855. The

appellees argue that in National Farmers Union the Court refused to

extend Oliphant's limitation of inherent sovereign authority to

civil cases.

The appellees fail to recognize the fact that Montana

specifically extended the general principles underlying Oliphant to

civil jurisdiction. Montana, 450 U.S. at 565 ("Though Oliphant

only determined inherent tribal authority in criminal matters, the

principles on which it relied support the general proposition that

the inherent sovereign powers of an Indian tribe do not extend to

the activities of nonmembers of the tribe") (footnote omitted).

Montana did not extend the full Oliphant rationale to the civil

jurisdictional question -- which would have completely prohibited

civil jurisdiction over nonmembers. Instead, the Court found that

the tribe retained some civil jurisdiction over nonmembers, which

the Court went on to describe in the Montana exceptions. 450 U.S.

at 565-66. Thus, when National Farmers Union states that civil

tribal jurisdiction over nonmembers is not foreclosed by Oliphant,

that observation is perfectly consistent with Montana, which

provides for broader tribal jurisdiction over non-Indians than does

Oliphant. Under Montana, the tribe has the ability to exercise

civil jurisdiction over non-Indians when tribal interests (as

defined in the Montana exceptions) are involved.
12

We also read the other cases the appellees rely upon within

the limits of Montana. In Williams, the Court found that the

tribal courts had jurisdiction over a suit by a non-Indian store

owner on the reservation against two members of the tribe for

breach of contract based on a transaction that occurred on the

reservation. 358 U.S. at 218, 223. This factual situation fits

squarely under the "consensual agreement" test for jurisdiction in

Montana (the first Montana exception). In fact, Montana

specifically cited Williams in creating the two exceptions that

allow for civil jurisdiction over non-Indians. 450 U.S. at 544-45.

Similarly, the appellees read too much into language from

Merrion, where the Court stated in a footnote: "Because the Tribe

retains all inherent attributes of sovereignty that have not been

divested by the Federal Government, the proper inference from

silence . . . is that the sovereign power . . . remains intact."

455 U.S. at 149 n.14. The Court made the observation in isolation

in a case dealing with the tribe's authority to impose a severance

tax on non-Indians on the reservation. The Court found this

taxation power was derived either from the tribe's inherent power

of self-government or the power to exclude, id. at 149, both of

which are consistent with the inherent powers the tribe retains

over nonmembers described in Montana. Both Merrion and Iowa Mutual

say essentially the same thing: the inherent attributes of

sovereignty that an Indian tribe retains, which under Montana are

very limited when dealing with non-Indians, remain intact unless

affirmatively limited by the federal government.

The appellees argue that Montana and Brendale apply only to a

tribe's ability to exercise authority over non-Indians' activities

on non-Indian fee lands -- i.e., plots of land owned by non-Indians

in fee simple that happen to be located within the exterior

boundaries of the reservation. In our view, the appellees place an

artificial limitation on those cases. While Montana and Brendale

address questions of tribal authority over non-Indians on non-
13

Indian owned fee lands, neither case limits its discussion or

rationale to jurisdictional issues arising on fee lands. To the

contrary, the Montana Court found, without any qualification

whatsoever, that tribal power may not reach beyond what is

necessary to protect tribal self-government or to control internal

relations absent express congressional delegation. 450 U.S. at

564. Montana also specifically addressed the "forms of civil

jurisdiction over non-Indians on their reservations" and provided

the two limited situations in which that jurisdiction may arise.

Id. at 565 (emphasis added). Thus, Montana explicitly addressed

the authority of tribes to exercise civil jurisdiction on the

reservation, as well as on non-Indian fee lands. The Brendale

plurality noted that Montana involved regulation of fee lands, but

it did not specifically limit the Montana rationale to fee land

disputes. See Brendale, 492 U.S. at 426-27. Since Brendale, the

Supreme Court likewise has not seen fit to limit either Montana or

Brendale in the fashion the appellees have suggested. Instead, the

Court has discussed these cases and their observations about tribal

jurisdiction in broad and unqualified language. See Bourland, 113

S. Ct. at 2319; County of Yakima, 502 U.S. at 267; Duro, 495 U.S.

at 687.

Moreover, a number of cases analyzing civil jurisdictional

issues in non-fee land disputes have relied upon or cited Montana.

See Stock West Corp. v. Taylor, 964 F.2d 912, 918-19 (9th Cir.

1992) (en banc) (quoting Montana test in non-fee land

jurisdictional dispute); FMC, 905 F.2d at 1314 (citing Montana in

non-fee land case as "the leading case on tribal civil jurisdiction

over non-Indians"); see also Tamiami Partners Ltd. v. Miccosukee

Tribe of Indians of Florida, 999 F.2d 503, 508 n.11 (11th Cir.

1993) (citing Montana in recognizing that tribal courts have power

to exercise civil jurisdiction in conflicts affecting the interests

of Indians on Indian lands). Thus, we conclude that any attempt to

limit the rationale of Montana and Brendale to fee land
14

jurisdictional issues is both uncompelling and unsupported by the

language of those two cases.

The appellees next argue that we should read the Montana line

of cases as addressing tribal regulatory power over non-Indians and

the line of cases represented by Iowa Mutual as addressing tribal

adjudicatory power over non-Indians. They contend that Iowa Mutual

and related cases would control in this case, which is a dispute

about tribal adjudicatory power. The appellees assert that drawing

such a distinction would be the best way to resolve what they see

as the apparent contradiction between the language from those

differing lines of cases.

Again, we must disagree. While the distinction the appellees

propose appears in some commentaries, see, e.g., Dussias, 55 U.

Pitt. L. Rev. at 43-78, the distinction does not appear explicitly,

or even implicitly, anywhere in the case law. Montana and the

cases following Montana have dealt with questions of civil tribal

regulatory jurisdiction, but those cases have never suggested that

their reasoning is limited solely to regulatory matters. Quite the

contrary, as we have noted above, those cases have spoken about

civil jurisdiction in broad and unqualified terms without any

limitation of the discussion to particular aspects of civil

jurisdiction. Likewise, Iowa Mutual and the other cases the

appellees rely on have never suggested such a distinction. In

fact, in Iowa Mutual, the Court cites Montana without any

indication that Montana should be limited to regulatory

jurisdiction. Iowa Mutual, 480 U.S. at 18.

Moreover, any attempt to create or apply a distinction between

regulatory jurisdiction and adjudicatory jurisdiction in this case

would be illusory. If the tribal court tried this suit, it

essentially would be acting in both an adjudicatory capacity and a

regulatory capacity. At oral argument, all of the parties agreed

that if the tribal court tried this case, it would have the power
15

to decide what substantive law applies. Essentially, the tribal

court would define the legal relationship and the respective duties

of the parties on reservation roads and highways. Thus, while

adjudicating the dispute, the tribal court also would be regulating

the legal conduct of drivers on the roads and highways that

traverse the reservation. Accordingly, we see no basis in this

case for applying the regulatory-adjudicatory distinction the

appellees have proposed.

Furthermore, even if we applied a regulatory-adjudicatory

distinction, it would not change our conclusion. None of the

cases, including those that the appellees argue are "adjudicatory

jurisdiction" cases, have ever addressed the issue presented here

-- a tribal court's civil jurisdiction over an accident involving

non-Indian parties. As we have demonstrated above, all of the

appellees' proposed "adjudicatory" cases are consistent with the

Montana case. Even if we were to treat Montana as a "regulatory"

authority case, we see no reason not to apply its principles to

this open question of inherent authority to exercise civil

adjudicatory jurisdiction over this dispute. Thus, we see no valid

basis for distinguishing or limiting Montana, as the appellees

suggest.

Arguably, some of the language from Iowa Mutual, Williams, and

Merrion can be viewed in isolation to create tension with Montana.

A careful reading of the particular language of those cases,

however, indicates that they can and should be read together with

Montana to establish one comprehensive and integrated rule: a valid

tribal interest must be at issue before a tribal court may exercise

civil jurisdiction over a non-Indian or nonmember, but once the

tribal interest is established, a presumption arises that tribal

courts have jurisdiction over the non-Indian or nonmember unless

that jurisdiction is affirmatively limited by federal law. This

rule is supported by the above authority and by the leading

treatise on American Indian law, which specifically states: "Tribal
16

courts probably lack jurisdiction over civil cases involving only

non-Indians in most situations, since it would be difficult to

establish any direct impact on Indians or their property." Felix

S. Cohen's Handbook of Federal Indian Law, 342-43 (1982 ed.). This

well-accepted rule controls this case.

Finally, the appellees urge us to follow a recent decision in

a case factually very similar to this case, where the Ninth Circuit

held that the tribal court had jurisdiction over the lawsuit. See

Hinshaw v. Mahler, 42 F.3d 1178 (9th Cir. 1994). In Hinshaw,

Christian Mahler died from injuries he received when a car driven

by Lynette Hinshaw collided with the motorcycle Mahler was riding

on a U.S. highway within the boundaries of the Flathead Indian

Reservation. Both Mahler and Hinshaw were residents of the

reservation, but they were not members of the tribe. Id. at 1180.

Mahler's mother (an enrolled member of the tribe) and Mahler's

father (a nonmember) brought wrongful death and survivorship

actions in the tribal court. Hinshaw challenged the tribal court's

personal and subject matter jurisdiction in federal district court.

The Ninth Circuit affirmed the district court's conclusion that the

tribal court had jurisdiction over those claims. Id. at 1180-81.

To the extent that Hinshaw supports the appellees' arguments that

tribal courts have jurisdiction over a tort claim arising between

two non-Indians on a highway running through an Indian reservation,

we respectfully decline to follow it. Such a broad interpretation

of civil tribal jurisdiction is, we believe, inconsistent with

Montana.

The authority is quite clear that the kind of sovereignty the

American Indian tribes retain is a limited sovereignty, and thus

the exercise of authority over nonmembers of the tribe "is

necessarily inconsistent with a tribe's dependent status."

Brendale, 492 U.S. at 427 (citing United States v. Wheeler, 435

U.S. 313, 326 (1978)). Stated another way, "the inherent sovereign

powers do not extend to the activities of nonmembers of the tribe."
17

Montana, 450 U.S. at 565, quoted in Duro v. Reina, 495 U.S. at 687.

As such, we cannot endorse the appellees' concept of plenary tribal

territorial (or geographical) civil jurisdiction. Such a concept

presents an overly broad interpretation of the tribe's sovereignty

which is inconsistent with the tribe's dependent status and is

contrary to Montana. Thus, for the tribe to exercise civil

jurisdiction over nonmembers, the Montana exceptions must be

satisfied because the "inherent attributes of sovereignty" do not

extend to nonmembers.

While the tribe's inherent authority to assert civil

jurisdiction over a nonmember depends on the existence of a tribal

interest as defined in Montana, that does not mean geography plays

no role in the sovereignty and jurisdictional inquiry. "The Court

has repeatedly emphasized that there is a significant geographical

component to tribal sovereignty." White Mountain Apache Tribe v.

Bracker, 448 U.S. 136, 151 (1980). In Montana, the Court accounted

for this geographical component of the jurisdictional analysis when

it stated that "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." 450 U.S. at 565

(emphasis added). Montana implicitly recognizes that without the

geographic connection to Indian country, the tribes would have no

plausible grounds for asserting jurisdiction over the non-Indian

parties. Thus, properly understood, the geographical component of

the jurisdictional analysis is important but not dispositive. See

generally Bracker, 448 U.S. at 151 (geographical component of

tribal sovereignty is important -- though not dispositive factor

for courts to weigh in determining whether a state's authority to

tax non-Indians for activities on reservation has been pre-empted).
 5

A-1 and Stockert have noted that under the terms of the

subcontract involved in this case, all disputes arising out of

the subcontract would be determined under Utah law and would be

heard in the Utah courts. The appellees have not argued to the

contrary. However, we will not give this fact any controlling

weight because the subcontract is not part of this record.

18

III.

Applying Montana to this case, there must be a tribal interest

at issue (as defined in the Montana exceptions) before the tribal

court can exercise jurisdiction over the non-Indian parties. We

conclude that no such tribal interest exists in this case. This

dispute arose between two non-Indians involved in an ordinary runof-the-mill automobile accident that occurred on a North Dakota

state highway traversing the reservation. Those facts, which stand

alone in this case, make this dispute distinctively non-tribal in

nature.

The appellees argue that the "consensual relationship" test

(the first Montana exception) is satisfied because A-1 voluntarily

entered into a subcontract with the tribe and Lyle Stockert was an

A-1 employee who was allegedly on the reservation pursuant to that

subcontract when he was involved in the accident with Gisela

Fredericks. In our view, that reasoning is flawed. The dispute in

this case is a simple personal injury tort claim arising from an

automobile accident, not a dispute arising under the terms of, out

of, or within the ambit of the "consensual agreement," i.e., the

subcontract between the tribes and A-1. Gisela Fredericks was not

a party to the subcontract, and the tribes were strangers to the

accident.5

The appellees also argue that the second Montana exception is

satisfied because the dispute arose on the reservation, and

therefore, the conduct in dispute here necessarily affects the

tribe's political integrity, economic security, or health or
 6

There has been some discussion of the effect of 28 U.S.C.

§ 1360 on jurisdiction of the North Dakota state courts. That

section, by its very terms, applies only to the state court's

jurisdiction over actions to which Indians are parties. See also

25 U.S.C. § 1322 (similar jurisdictional provision of Indian

19

welfare. The appellees contend that the dispute affects the

tribe's political integrity because it deals with the tribe's

ability to function as a fully sovereign government. We disagree.

In our view, this case has nothing to do with the Indian tribe's

ability to govern its own affairs under tribal laws and customs.

It deals only with the conduct of non-Indians and the tribe's

asserted ability to exercise plenary judicial authority over a

decidedly non-tribal matter. The only governmental interest the

tribe alleges is the right to act as a full sovereign to exercise

full sovereign authority over events that happen within its

geographical boundaries. As noted above, tribes are limited

sovereigns and do not possess full sovereign powers. Thus, this

desire to assert and protect excessively claimed sovereignty is not

a satisfactory tribal interest within the meaning of the second

Montana exception. 

The appellees also argue that even though Mrs. Fredericks is

a non-Indian and nonmember of the tribe, she is a long-time

resident of the reservation and hence is an imbedded member of the

community with a recognizable social and economic value to the

tribal community. Thus, they argue that it is critical to provide

her a tribal forum for her disputes. The simple fact that Mrs.

Fredericks is a resident of the reservation, however, does not

satisfy the second Montana exception. It is not essential to the

tribe's political integrity, economic security, or health or

welfare to provide her, a non-Indian and nonmember, with a judicial

forum for resolution of her disputes. A forum is available to Mrs.

Fredericks in the North Dakota state courts, and there is no

indication that she would be prevented from asserting her claims,

in full, in that forum.6
Civil Rights Act). Because we have found that this case does not

involve any Indian parties, those sections simply do not apply to

this case. We note that even if applicable, those sections would

tend to indicate that the North Dakota state courts have

jurisdiction over this case. See Three Affiliated Tribes of the

Fort Berthold Reservation v. Wold Engineering, 476 U.S. 877

(1986) (North Dakota's attempt to disclaim unconditional state

court jurisdiction over civil claims arising in Indian country

held invalid).

20

Likewise, the fact that Mrs. Fredericks wants to bring her

suit in the tribal courts does not control. Montana very clearly

states that the conduct giving rise to the case must threaten or

have a "direct effect on the political integrity, economic

security, or health or welfare of the tribe," not the nonmember,

before the tribe can assert civil jurisdiction over nonmembers.

450 U.S. at 466 (emphasis added). Nor is it persuasive to us that

Mrs. Fredericks may be as close to being a member of the tribe as

she could be without actually being a member. Montana is very

clear that tribal membership is of critical importance. Mrs.

Fredericks is neither an Indian nor a member of the tribe. The

fact that Mrs. Fredericks has not been admitted to membership in

the tribe places her outside the reach of the tribe's inherent

authority, absent some separate showing of a direct effect on the

tribe. In this case, the appellees have completely failed to show

that the tribe's ability to govern or protect its own members would

be directly damaged if the tribe cannot assert jurisdiction over

this lawsuit. Thus, the second exception to Montana does not

apply.

IV.

 Simply stated, this case is not about a consensual

relationship with a tribe or the tribe's ability to govern itself;

it is all about the tribe's claimed power to govern non-Indians and

nonmembers of the tribe just because they enter the tribe's

territory. By remaining within the principled approach of Montana,
21

the tribe retains the ability to govern itself because the tribal

court will have jurisdiction whenever a "tribal interest" in a

dispute is established. Under Iowa Mutual, where such a tribal

interest exists, the jurisdiction is broad and requires an

affirmative change in federal law to limit it in any way. Because

we have concluded that no tribal interest as defined in Montana

exists in this case, we conclude that the tribe does not retain the

inherent sovereign power to exercise subject matter jurisdiction

over this dispute through its tribal court. Accordingly, we

reverse the judgment of the district court.

BEAM, Circuit Judge, with whom FLOYD R. GIBSON, McMILLIAN, and

MURPHY, Circuit Judges, join, concurring and dissenting.

I concur in the court's "comprehensive and integrated" rule

that "a valid tribal interest must be at issue before a tribal

court may exercise civil jurisdiction over a non-Indian or

nonmember, but once the tribal interest is established, a

presumption arises that tribal courts have jurisdiction over the

non-Indian or nonmember unless that jurisdiction is affirmatively

limited by federal law." Supra at 15-16. I dissent, however, from

the court's application of the rule in this case and from the

implication that a tribal court has no jurisdiction in a civil case

unless the dispute involves an Indian or a member of the tribe.

The concept of "tribal interest" as advanced by the court

appears to be a free-floating theory wholly detached from

geographic reality except in a most attenuated way. I dissent from

this ideation of tribal jurisdiction because it is contrary to

Brendale v. Confederated Tribes & Bands of the Yakima Indian

Nation, 492 U.S. 408 (1989); Iowa Mut. Ins. Co. v. LaPlante, 480

U.S. 9 (1987); National Farmers Union Ins. Co. v. Crow Tribe of

Indians, 471 U.S. 845 (1985) and other earlier cases, to say

nothing of Montana v. United States, 450 U.S. 544 (1981), the case

most heavily relied upon by the court.
22

A legitimate judicial system arises as an attribute of

sovereignty. Indeed, "the existence and extent of a tribal court's

jurisdiction . . . require[s] a careful examination of tribal

sovereignty." National Farmers Union, 471 U.S. at 855.

Accordingly, any determination of tribal court jurisdiction

requires examination of the parts and pieces of tribal sovereignty

and how they fit within the jurisdictional equation.

Historically, the connection of Indians to the land has shaped

the course of Indian law. In the landmark case of Worcester v.

Georgia, 31 U.S. (6 Pet.) 515, 557 (1832), Indian nations were

recognized as "distinct political communities, having territorial

boundaries, within which their authority is exclusive, and having

a right to all the lands within those boundaries, which is not only

acknowledged, but guaranteed by the United States." In Williams v.

Lee, 358 U.S. 217 (1959), the Court recognized the importance of

Indian land when it decided the question of jurisdiction over a

case brought in state court by a non-Indian merchant against Indian

customers. Holding that the case should have been brought in

tribal court, the Court stated "[i]t is immaterial that respondent

is not an Indian. He was on the Reservation and the transaction

with an Indian took place there." Id. at 223.

Even in more recent cases the Court has recognized the

significance of geography to tribal sovereignty. In U.S. v.

Mazurie, 419 U.S. 544, 557 (1975), the Court noted that its cases

had consistently recognized that the Indian tribes retain

"attributes of sovereignty over both their members and their

territory." (Emphasis added.) Merrion v. Jicarilla Apache Tribe,

455 U.S. 130 (1982), explores a tribe's historic power to exclude

others from tribal lands. 

Brendale supports a rule which would allow a court to consider

Indian territory in determining the tribe's interest in a given

case. The plurality in Brendale suggests a case-by-case approach
23

to deciding whether Montana's second exception confers tribal

jurisdiction. The precise wording of the second exception, the

plurality writes, indicates that "a tribe's authority need not

extend to all conduct that `threatens or has some direct effect on

the political integrity, the economic security, or the health or

welfare of the tribe,' but instead depends on the circumstances."

Brendale, 492 U.S. at 429. Thus, Brendale suggests that the

meaning of Montana's second exception is not static but depends on

various factors.

All of these cases further suggest that geography plays a

vital role in a tribe's political integrity, economic security,

health and welfare, and therefore must be strongly considered in

any application of Montana's second exception, whether or not

Indian or tribal members are parties to the dispute.

Even Montana lends support to the geographic component of

tribal court jurisdiction. The Supreme Court stated:

[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 non-Indian fee

lands.

450 U.S. at 565 (emphasis added). The Court in Montana cited its

earlier holding in United States v. Wheeler, 435 U.S. 313 (1978)

and noted that Indian Tribes are "`unique aggregations possessing

attributes of sovereignty over both their members and their

territory.'" 450 U.S. at 563 (emphasis added).

In finding no jurisdiction here, the court describes tribal

membership as "critical" to the Court's holding in Montana. Supra

at 20. Such a characterization oversimplifies Montana, overstates

the role tribal membership plays in a determination of tribal court

jurisdiction and understates the role of territorial integrity.

Montana was the product of several factors, including the nature of
 1

In Oliphant, the Court held that tribal courts could not

validly assert criminal jurisdiction over non-Indians. Oliphant

v. Suquamish Indian Tribe, 435 U.S. 191 (1978).

24

the regulation in question and the application of that regulation

to fee land. It fully recognized that non-Indians and nonmembers

of a tribe can affect the political integrity, economic security,

health and welfare of a tribe under the proper circumstances. The

Montana Court's establishment of two tribal jurisdiction

"exceptions" and its refusal to wholly extend its holding in

Oliphant1 to civil jurisdiction demonstrates the Court's cognizance

of the influence of non-Indians and tribal real estate on tribal

self-government.

One of the strongest interests that the tribe advances in this

case is its interest in providing a forum for this plaintiff. And,

the question of North Dakota state court jurisdiction is not as

clear-cut as the court suggests. In fact, such jurisdiction is

doubtful.

Two important points are relevant to this issue. First,

Public Law 280, 28 U.S.C. § 1360, does not, for reasons other than

those advanced by the court, have any bearing on this issue. In

footnote 6, supra at 19, the court explains that 28 U.S.C. § 1360

applies only to actions to which Indians are parties. The original

Public Law 280, however, applied to all "civil causes of action."

See Act of Aug. 15, 1953, Pub. L. 280, ch. 505, 67 Stat. 588

(codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321-1326,

28 U.S.C. § 1360); see also Felix S. Cohen, Handbook of Federal

Indian Law 362-63 (1982 ed.). Under the original Act, assumption

of jurisdiction was mandatory for some states and optional for

others, including North Dakota. It was not until 1968, when

amendments to Public Law 280 were enacted, that state assumption of

jurisdiction was limited to actions to which Indians were parties,

subject to tribal consent. North Dakota had chosen to assume civil
 2

As Felix Cohen explains, although the amendments altered

any prospective assumption of Public Law 280 jurisdiction, it

preserved all jurisdiction previously acquired under the Act. 

Cohen, 363 n.126.

25

jurisdiction before the amendments were adopted,2 but had

voluntarily conditioned its jurisdiction upon consent of the

tribes. N.D. Cent. Code § 27-19-01 (1991). The tribes of the Fort

Berthold reservation did not consent. Three Affiliated Tribes of

the Fort Berthold Reservation v. Wold Eng'g I, 467 U.S. 138 (1984).

Thus, North Dakota has no jurisdiction over the Fort Berthold

reservation under 28 U.S.C. § 1360.

My second point is more relevant to the question of the

authority of a state court to assume jurisdiction over a cause of

action arising on an Indian reservation. Even absent jurisdiction

conferred by federal statute, state courts may exercise

jurisdiction over some civil causes of action arising on

reservation lands. The scope of state court jurisdiction is

limited by the Williams v. Lee "infringement" test: "whether the

state action infringe[s] on the right of reservation Indians to

make their own laws and be ruled by them." 358 U.S. at 220. State

court jurisdiction cannot be disclaimed, at least where there is no

other forum in which to bring an action. Three Affiliated Tribes

of the Fort Berthold Reservation v. Wold Eng'g II, 476 U.S. 877

(1986).

Thus, the question of whether a North Dakota state court can

provide a forum for Mrs. Fredericks depends upon whether state

jurisdiction in this instance would infringe upon the tribe's right

to self government. Commentators seem to agree that state courts

have subject matter jurisdiction over suits by non-Indians against

non-Indians, even when the claim arises in Indian Country, so long

as Indian interests are not affected. See, e.g., Cohen, 352 ("The

scope of preemption of state laws in Indian country generally does

not extend to matters having no direct effect on Indians, tribes,
26

their property, or federal activities. In these situations state

courts have their normal jurisdiction over non-Indians and their

property, both in criminal and civil cases."); Sandra Hansen,

Survey of Civil Jurisdiction in Indian Country 1990, 16 Am. Indian

L. Rev. 319, 346 (1991). 

The Three Affiliated Tribes have, however, adopted a tribal

code which outlines civil court jurisdiction within the exterior

boundaries of the reservation and which, in the absence of federal

law to the contrary, imposes tribal law and custom, not North

Dakota statute or common law, as controlling precedent for torts

occurring within the reservation. See Tribal Code of the Three

Affiliated Tribes of the Fort Berthold Reservation Ch. 1, § 2

(1980); see also Cohen 334-35.

Thus, in this case, state court jurisdiction would infringe

upon the tribe's right of self government including the right to

provide a forum, indeed the only forum, available to this resident

of the reservation. The accident occurred on Indian land over

which the tribe asserts territorial sovereignty and involved a nonIndian truck driver brought onto the reservation by a commercial

contract between the tribe and his employer. Even though Mrs.

Fredericks was a non-Indian, she had long resided on the

reservation with a tribal member spouse (now deceased) and is the

mother of adult children who are enrolled members of the tribe.

Had either accident participant been an Indian, the situs of the

accident on the reservation would have clearly dictated tribal

court jurisdiction as established in Brendale, Iowa Mutual,

National Farmers Union and Montana. The tribal court has

jurisdiction over Mrs. Fredericks' claim. I dissent from the

court's ruling to the contrary.
27

FLOYD R. GIBSON, Circuit Judge, with whom McMILLIAN, BEAM, and

MURPHY, Circuit Judges, join, dissenting.

I agree with Judge McMillian's and Judge Beam's dissents. I

write separately to express my dismay at this Court's unduly narrow

view of "limited sovereignty." The type of "limited sovereignty"

allotted by this Court to the tribe is, in fact, no real

sovereignty at all. 

Whether framed in terms of inherent tribal sovereignty under

Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9, 18 (1987), or

tribal interests under Montana v. United States, 450 U.S. 544, 565-

66 (1981), the power to adjudicate everyday disputes occurring

within a nation's own territory is among the most basic and

indispensable manifestations of sovereign power. As Chief Justice

Marshall observed:

No government ought to be so defective in its

organization, as not to contain within itself, the means

of securing the execution of its own laws against other

dangers than those which occur every day. Courts of

justice are the means most usually employed; and it is

reasonable to expect, that a government should repose on

its own courts, rather than on others.

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 387-88 (1821). This

case does not present an extraordinary occurrence. As the majority

opinion notes, this case involves "an ordinary run-of-the-mill

automobile accident." Ante at 18. The majority opinion today

denies the tribe the ability to adjudicate the type of basic

disputes that occur daily within Indian territory unless these

disputes involve tribal members. Such a restriction interferes

with the tribe's ability to manage its affairs by compromising its

ability to deal with non-tribe members who happen to wreak havoc on

tribal land.

I believe that the analysis and underlying rationale set forth

in Montana have no relevance outside the narrow context of a
 1 Tribal authority over the 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. 

Because the Tribe retains all inherent attributes of

sovereignty that have not been divested by the Federal

Government, the proper inference from silence is that the

sovereign power remains intact. 

Citations and quotation omitted.

28

tribe's ability to regulate fee lands owned by non-Indians. 450

U.S. at 557-67. As such, I would limit the rule of that case to

its facts and rely instead on the broad scope of inherent tribal

sovereignty outlined in cases such as Iowa Mutual. 480 U.S. at

18.1

Even if I were convinced that the reach of Montana is as broad

as the majority of this Court believes it to be, I believe that

this case implicates tribal interests and, as such, falls squarely

under either of the two Montana exceptions. I believe that this

case meets the "consensual relationship" test under the first

Montana exception because it arose as a direct result of A-1's

consensual commercial contacts with the tribe. See 450 U.S. at

565-66. Had A-1 not subcontracted with LCM Corporation, a

corporation wholly owned by the tribe, to perform construction work

on a tribal community building within the boundaries of the

reservation, the accident would never have occurred. The majority

claims that there is "no proof (as opposed to allegations) . . . to

support the district court's finding of fact that A-1 was in

performance of the contract at the time of the accident." Ante at

3, note 1. I, however, fail to see any other plausible explanation

as to why a gravel truck owned by A-1, a non-Indian-owned company,

was on tribal land at the time of the collision. Because I believe

that the accident clearly arose as the result of A-1's consensual

relationship with the tribe and its members, I believe that the
29

tribe retains the inherent sovereign power to exercise civil

jurisdiction over A-1 under the first Montana exception. 

I also believe that the tribe retains the inherent power to

exercise civil authority over A-1 under the second Montana

exception because A-1's conduct on tribal land "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.

The majority dismisses the tribal interests at stake here as a

"desire to assert and protect excessively claimed sovereignty."

Ante at 19. As previously observed, however, the ability of a

sovereign, even a limited sovereign, to adjudicate the everyday

affairs and accidents occurring within its borders and provide a

forum for its citizens is one of the most basic and indispensable

aspects of sovereignty. Aside from the threat to the tribe's

political integrity, the majority opinion also unfairly discounts

the effect of A-1's conduct on the health and welfare of the tribe.

Ante at 18-20. While the immediate victim of the collision, Gisela

Fredericks, is not a member of the tribe, she is nonetheless a

longtime resident of the reservation whose husband and adult

children are enrolled tribal members. To claim that A-1's conduct

on tribal land had no effect on the health or welfare of the tribe

is simply unrealistic and not in accordance with the facts.

 

For the aforementioned reasons, I would affirm the order of

the district court.

McMILLIAN, Circuit Judge, with whom FLOYD R. GIBSON, BEAM, and

MURPHY, Circuit Judges, join, dissenting.

I join in Judge Beam’s opinion concurring in part and

dissenting in part, particularly the emphasis on the importance of

geography or territory in analyzing issues of tribal sovereignty.

I write separately to set forth the reasons why I would hold that
 1

Rights-of-way are part of "Indian country" as defined by

federal law. 18 U.S.C. § 1151 ("Indian country" includes "all

land within the limits of any reservation under the jurisdiction

of the United States government, notwithstanding the issuance of

any patent, and, including rights-of-way running through the

reservation"). "While [18 U.S.C.] § 1151 is concerned, on its

face, only with criminal jurisdiction, the [Supreme] Court has

recognized that it generally applies as well to questions of

civil jurisdiction." DeCoteau v. District County Court, 420 U.S.

425, 427 n.2 (1975).

30

the federal district court, and the tribal courts, correctly

decided that the tribal court has subject matter jurisdiction over

this reservation-based tort action between non-tribal members. 

There are no disputed issues of fact relevant to the

jurisdiction issue. None of the parties are tribal members.

Gisela Fredericks is a resident of the reservation; the truck

driver, Lyle Stockert, and his employer, A-1 Contractors, are not

residents, but A-1 was performing work on the reservation under a

subcontract agreement with LCM Corp., a corporation wholly owned by

the tribe, in connection with the construction of a tribal

community building. Because the accident occurred within the

exterior boundaries of the reservation, on a state highway

right-of-way,1 the cause of action arose on the reservation. The

tribal code establishes personal and subject matter jurisdiction

and applies tribal law and custom. 

The legal issue presented, tribal court civil jurisdiction, is

a question of federal law subject to de novo review. See, e.g.,

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

1990), cert. denied, 499 U.S. 943 (1991). The jurisdiction issue

is properly presented for determination on the merits. Tribal

remedies have been exhausted, and we have the benefit of the tribal

trial and appellate courts’ opinions as well as that of the federal

district court. 
31

I would hold the tribal court has civil jurisdiction because

of the presumption in favor of inherent tribal sovereignty, Montana

applies only to issues involving fee lands, Iowa Mutual establishes

more than a rule of exhaustion of tribal remedies, the Handbook of

Federal Indian Law does not definitively resolve the issue, and

state court jurisdiction does not preclude tribal court

jurisdiction. Finally, I would hold that even if Montana applies,

providing a forum for reservation-based tort actions, even where

the parties are non-Indian, falls within both Montana exceptions.

INHERENT TRIBAL SOVEREIGNTY

The majority opinion would not extend inherent tribal

sovereignty over the activities of non-members, absent consent or

some direct effect on the tribe. I remain convinced that the

opposite presumption applies, that is, that "[c]ivil jurisdiction

over such activities presumptively lies in the tribal courts unless

affirmatively limited by a specific treaty provision or federal

statute." Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9, 18

(1987) (Iowa Mutual). See Hinshaw v. Mahler, 42 F.3d 1178, 1180-81

(9th Cir.) (tribal court jurisdiction over action brought by tribal

member on behalf of non-tribal member child against non-tribal

member arising out of car accident on reservation), cert. denied,

115 S. Ct. 485 (1994). 

Indian tribes possess "‘inherent powers of a limited

sovereignty which has never been extinguished.’" United States v.

Wheeler, 435 U.S. 313, 322 (1978) (emphasis omitted), citing Felix

S. Cohen, Handbook of Federal Indian Law 122 (1942 ed.). The

Supreme Court has repeatedly emphasized that "there is a

significant geographical component to tribal sovereignty." White

Mountain Apache Tribe v. Bracker, 448 U.S. 136, 151 (1980)

(pre-emption of state authority over non-Indians acting on tribal

reservations). See generally Allison M. Dussias,
32

Geographically-Based and Membership-Based Views of Indian Tribal

Sovereignty: The Supreme Court’s Changing Vision, 55 U. Pitt. L.

Rev. 1 (1993). Thus, "Indian tribes retain ‘attributes of

sovereignty over both their members and their territory’ to the

extent that sovereignty has not been withdrawn by federal statute

or treaty." Iowa Mutual, 480 U.S. at 14, citing United States v.

Mazurie, 419 U.S. 544, 557 (1975) (emphasis added). Inherent

tribal sovereignty "exists only at the sufferance of Congress and

is subject to complete defeasance. But until Congress acts, the

tribes retain their existing sovereign powers. In sum, Indian

tribes still possess those aspects of sovereignty not withdrawn by

treaty or statute, or by implication as a necessary result of their

dependent status." United States v. Wheeler, 435 U.S. at 323

(emphasis added). Implicit divestiture of inherent sovereignty has

been found necessary only

where the exercise of tribal sovereignty would be

inconsistent with the overriding interests of the

National Government, as when the tribes seek to engage in

foreign relations, alienate their lands to non-Indians

without federal consent, or prosecute non-Indians in

tribal courts which do not accord the full protections of

the Bill of Rights.

Washington v. Confederated Tribes of Colville Reservation, 447 U.S.

134, 153-54 (1980) (footnote omitted).

The federal policy favoring tribal self-government

operates even in areas where state control has not been

affirmatively pre-empted by federal statute. "[A]bsent

governing Acts of Congress, the question has always been

whether the state action infringed on the rights of

reservation Indians to make their own laws and be ruled

by them."

Iowa Mutual, 480 U.S. at 14, citing Williams v. Lee, 358 U.S. 217,

220 (1959). "Because the Tribe retains all inherent attributes of

sovereignty that have not been divested by the Federal Government,

the proper inference from silence . . . is that the sovereign power
33

. . . remains intact." Merrion v. Jicarilla Apache Tribe, 455 U.S.

130, 149 n.14 (1982). 

There is no ground for divestiture of inherent tribal

sovereignty in the present case. No specific treaty provision or

federal statute has been shown to affirmatively limit the power of

the tribal courts of the Three Affiliated Tribes over civil actions

that arise on the reservation, and the exercise of tribal civil

jurisdiction over a tort action arising on the reservation between

non-members does not implicate foreign relations, alienation of

land, or the criminal prosecution of non-Indians. 

STATUS OF LANDS AT ISSUE

First, Montana v. United States, 450 U.S. 544 (1981), Brendale

v. Confederated Tribes & Bands of the Yakima Indian Nation, 492

U.S. 408 (1989) (Brendale), and South Dakota v. Bourland, 113 S.

Ct. 2309 (1993) (Bourland), are not controlling. Montana and

Brendale involved attempts by the tribes to regulate the activities

of non-members on fee land, that is, land owned by non-members

within the reservation; Bourland involved lands taken by the

federal government for the construction of a dam and reservoir.

The distinction between land conveyed in fee to non-Indians

pursuant to the Indian General Allotment Act of 1887, 24 Stat. 388,

which was intended to eliminate the reservations and assimilate the

Indian peoples, or, in Bourland, land taken by the federal

government, and land owned by the tribe or trust land held by the

federal government in trust for the tribe or individual members of

the tribe, is fundamental to the analysis in Montana, Brendale and

Bourland. The present case does not involve fee land or land taken

by the federal government for public use. For that reason, I would

apply Montana, and its exceptions, only to fee lands owned by

non-tribal members. 
34

A close reading of Justice Stewart’s opinion for the Court in

Montana demonstrates the importance of geographical or territorial

status of the land at issue to tribal sovereignty analysis. The

Court’s analysis differentiated between fee lands and lands owned

by the tribe or held in trust for the tribe. The competing

regulatory authorities were the tribe and the state, each of which

asserted the authority to regulate hunting and fishing by

non-members within the reservation. The Court framed the issue in

terms of "the sources and scope of the power of an Indian tribe to

regulate hunting and fishing by non-Indians on lands within its

reservation owned in fee simple by non-Indians." 450 U.S. at 547

(emphasis added), 557. The Supreme Court held that the tribe could

prohibit non-members from hunting or fishing on land owned by the

tribe or trust land, id. at 557, and, if the tribe permitted

non-members to fish or hunt on such lands, could condition their

entry by charging a fee or establishing bag and creel limits. Id.

However, the Court held inherent tribal sovereignty over the

reservation did not extend to tribal regulation of non-Indian

fishing and hunting on reservation land owned in fee by

non-members. Id. at 564-65. The Court admitted that "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." Id. at 565 (emphasis added). The first

Montana exception recognizes tribal regulatory authority over

non-members who enter consensual relationships with the tribe or

its members. Id. The second Montana exception expressly

recognizes a tribe’s "inherent power to exercise 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." Id. (emphasis added). If inherent tribal sovereignty can

include civil jurisdiction over non-Indians on fee lands within the

reservation, it should include civil jurisdiction over non-Indians

on tribal land or trust land within the reservation. This is
35

because tribal civil jurisdiction is more restricted on fee land

than on tribal or trust land. 

Brendale also involved fee lands within the reservation; the

competing regulatory authorities were once again the tribe and the

state (or, more precisely, one county). The issue presented was

the scope of the second Montana exception, that is, "whether, and

to what extent, the tribe has a protectible interest in what

activities are taking place on fee land within the reservation and,

if it has such an interest, how it may be protected." 492 U.S. at

430 (emphasis added). The tribal zoning ordinance applied to all

lands located within the reservation, part of which was located in

Yakima County. The county zoning ordinance applied to all lands

located within the county, except for tribal trust lands. Most of

the reservation was tribal trust land, referred to as the "closed

area"; the rest was fee land located through out the reservation in

a checkerboard pattern but mostly in one part of the reservation,

referred to as the "open area." The county had approved two

proposed developments, one in the open area and one in the closed

area, on fee lands owned by non-members of the tribe, that

conflicted with the tribal zoning ordinance. The tribe sued to

stop the proposed development and challenged the county’s zoning

authority over the reservation. 

The judgment of the Court was divided. The Court, in an

opinion by Justice White, upheld application of the county zoning

ordinance to the fee land located within the open area, under both

the treaty language, id. at 422-25, and the Montana inherent tribal

sovereignty analysis. Id. at 425-32. However, the Court, in an

opinion by Justice Stevens, upheld application of the tribal zoning

ordinance to the fee land located within the closed area. Id. at

433-47 (differentiating between "essential character" of closed and

open areas and noting open area was at least half-owned by

non-members, had lost its character as an exclusive tribal

resource, and, as practical matter, had become integrated part of
36

county that is not economically or culturally delimited by

reservation boundaries). Although the opinions reach different

decisions for different reasons, it is important to note that the

regulatory dispute involved the authority to control development of

fee lands and not land owned by the tribe or held in trust for the

tribe. Cf. United States ex rel. Morongo Band of Mission Indians

v. Rose, 34 F.3d 901, 906 (9th Cir. 1994) (Montana exceptions are

"relevant only after the court concludes that there has been a

general divestiture of tribal authority over non-Indians by

alienation of the land"). Justice Blackmun would have upheld the

tribe’s exclusive authority to zone reservation land, including fee

lands, and thus concurred in part and dissented in part. Id. at

448-68. 

In Bourland the competing regulatory authorities were once

again the tribe and the state. At issue were not fee lands,

however, but former trust and fee lands that had been taken by the

United States for construction of a dam and reservoir for flood

control. The taking authorization also "opened" the taken land for

recreational use, including hunting and fishing, by the public at

large. As in Montana, the tribe sought to regulate hunting and

fishing by non-members on the reservation, including the land taken

for the flood control project. The state filed suit to enjoin the

tribe from excluding non-Indians from hunting and fishing on the

taken lands within the reservation. The Court, in an opinion by

Justice Thomas, held that Congress, in enacting the flood control

legislation, had abrogated the tribe’s right under the relevant

treaty to exclude non-Indians from the taken lands. 113 S. Ct. at

2316. The Court also held that inherent tribal sovereignty did not

enable the tribe to regulate non-Indian hunting and fishing in the

taken area in the absence of any evidence in the relevant treaties

or statutes that Congress intended to allow the tribe to assert

such regulatory jurisdiction. Id. at 2319-20. The Court, however,

remanded the case for further consideration of whether the tribe

retained the inherent sovereignty to regulate non-Indian hunting
37

and fishing in the taken area under the two Montana exceptions.

Id. at 2320. Justice Blackmun dissented and would have held that

the tribe had the authority to regulate non-Indian hunting and

fishing in the taken area because the relevant statutes did not

affirmatively abrogate either the tribe’s treaty rights or inherent

tribal sovereignty. Id. at 2323-24. 

EXHAUSTION OF TRIBAL REMEDIES

Next, National Farmers Union Insurance Cos. v. Crow Tribe, 471

U.S. 845 (1985) (National Farmers Union), and Iowa Mutual do not

establish only a rule of exhaustion requiring tribal courts to

determine their jurisdiction in the first instance. The rule of

exhaustion established in National Farmers Union is premised upon

the Court’s decision that tribal civil jurisdiction over

non-Indians is not automatically foreclosed by Oliphant v.

Suquamish Indian Tribe, 435 U.S. 191 (1978) (holding federal

legislation conferring jurisdiction on federal courts to try

non-Indians for offenses committed in Indian country had implicitly

pre-empted tribal criminal jurisdiction over non-Indians).

National Farmers Union recognized that an exhaustion requirement

would have been superfluous if there were no possibility of tribal

civil jurisdiction over non-Indians. 471 U.S. at 854 (because if

Oliphant applied, federal courts would always be the only forums

for civil actions against non-Indians). National Farmers Union

thus did not foreclose tribal court jurisdiction over a civil

dispute involving a non-Indian defendant. Id. at 855 (school

district defendant). Iowa Mutual not only reaffirmed the rule of

exhaustion established in National Farmers Union but also expressly

stated that "[t]ribal authority over the activities of non-Indians

on reservation lands is an important part of tribal sovereignty"

and that "[c]ivil jurisdiction over such activities presumptively

lies in the tribal courts unless affirmatively limited by a

specific treaty provision or federal statute." 480 U.S. at 18; see

Brendale, 492 U.S. at 454-55 n.5 (Blackmun, J., concurring in part
38

and dissenting in part). This is an affirmative recognition that

tribal court civil jurisdiction over reservation-based tort actions

against non-Indians is part of inherent tribal sovereignty.

Otherwise, there would be no point in requiring exhaustion of

tribal remedies to permit the tribal courts to evaluate the factual

and legal bases of any challenges to their jurisdiction because the

tribal courts would never have jurisdiction. 

HANDBOOK OF FEDERAL INDIAN LAW

The landmark treatise does not definitively resolve this

issue. As noted by the majority opinion, Felix S. Cohen’s Handbook

of Federal Indian Law 342-43 (1982 ed.) does state that "[t]ribal

courts probably lack jurisdiction over civil cases involving only

non-Indians in most situations, since it would be difficult to

establish any direct impact on Indians or their property."

However, another section of the Handbook supports tribal civil

jurisdiction over non-Indians:

Indian tribes retain civil regulatory and judicial

jurisdiction over non-Indians. The extent of tribal

civil jurisdiction over non-Indians, however, is not

fully determined.

Analysis of the actions of each of the three federal

branches demonstrates that civil jurisdiction over

non-Indians has not been withdrawn and that the exercise

of such jurisdiction is consistent with the tribes’

dependent status under federal law. . . . In the civil

field [contrary to the rule in criminal matters],

Congress has never enacted general legislation to supply

a federal or state forum for disputes between Indians and

non-Indians in Indian country. Furthermore, although

treaties between the federal government and Indian tribes

sometimes required tribes to surrender non-Indian

criminal offenders to state or federal authorities,

Indian treaties did not contain provision for tribal

relinquishment of civil jurisdiction over non-Indians.

Congress’ failure to regulate civil jurisdiction in

Indian country suggests both that there was no

jurisdictional vacuum to fill and that Congress was less

concerned with tribal civil, non-penal jurisdiction over
39

non-Indians than with tribal jurisdiction over the

personal liberty of non-Indians. 

The executive branch of the federal government has

long acted on the assumption that Indian tribes may

subject non-Indians to civil jurisdiction. Although the

Attorney General and the Solicitor of the Department of

the Interior have opined since 1834 that Indian tribes

lack criminal jurisdiction over non-Indians, several

opinions have upheld tribal civil jurisdiction. The

Attorney General sustained tribal civil jurisdiction in

1855. A comprehensive 1934 Opinion of the Solicitor of

the Department of the Interior concluded that "over all

the lands of the reservation, whether owned by the tribe,

by members thereof, or by outsiders, the tribe has the

sovereign power of determining the conditions upon which

persons shall be permitted to enter its domain, to reside

therein, and to do business." . . . 

. . . . 

The breadth of [the tribes’] retained power over

non-Indians in civil matters has not been finally

resolved. . . .

. . . .

A tribe presumptively has an interest in activities

on lands belonging to the tribe or its members, so tribal

control over Indian trust land can be the basis for

extensive tribal jurisdiction over non-Indians in civil

matters. Regardless of land ownership, tribal

jurisdiction within reservations can also be based on

transactions between non-Indians and Indians or tribes or

on non-Indian activities that directly affect Indians or

their property.

Id. at 253-57 (footnotes omitted). Neither excerpt definitively

resolves the issue of tribal court jurisdiction over a civil suit

brought against a non-Indian arising from a tort occurring on the

reservation. 

STATE COURT JURISDICTION

The possibility of state court jurisdiction does not preclude

tribal court jurisdiction. See Hinshaw v. Mahler, 42 F.3d at 1180
40

(concurrent state and tribal jurisdiction over certain civil

matters occurring on Flathead Reservation, including operation of

motor vehicles on public roads), citing Larivee v. Morigeau, 184

Mont. 187, 602 P.2d 563, 566-71 (1979) (same), cert. denied, 445

U.S. 964 (1980). However, tribal court jurisdiction may preclude

state court jurisdiction, particularly where the tribe has

established tribal courts and adopted a tribal code which provides

for personal jurisdiction over non-Indians, subject matter

jurisdiction over torts arising on the reservation, and application

of tribal law. This is particularly true if one views the issue in

terms of a state’s attempt to assert its civil authority over the

conduct of non-Indians on the reservation, which is usually denied,

see, e.g., Williams v. Lee, 358 U.S. 217, as opposed to a tribe’s

attempt to assert its civil authority over the conduct of

non-Indians on the reservation, which is usually upheld. See,

e.g., City of Timber Lake v. Cheyenne River Sioux Tribe, 10 F.3d

554, 558 (8th Cir. 1993) (reserving inherent tribal soverignty

issue), cert. denied, 114 S. Ct. 2741 (1994). For example, in the

landmark case of Williams v. Lee the Court held that the state

court did not have jurisdiction over an action brought by a

non-Indian who operated a general store on a reservation to recover

money for goods sold to Indians because "the exercise of state

jurisdiction [under the circumstances] would undermine the

authority of the tribal courts over Reservation affairs and hence

would infringe on the right of the Indians to govern themselves."

358 U.S. at 223; cf. Cowan v. Rosebud Sioux Tribe, 404 F. Supp.

1338, 1341 (D.S.D. 1975) (upholding tribal court jurisdiction over

tribe’s suit against non-Indian lessee of tribal land). 

TRIBAL SELF-GOVERNMENT

Finally, even assuming for purposes of analysis that Montana

is not limited to disputes involving fee lands, a "consensual

relationship" existed between A-1 and Stockert and the tribe by

virtue of the subcontract within the meaning of the first Montana
41

exception. In addition, the allegedly tortious conduct of A-1 and

Stockert occurred on a state highway right-of-way on the

reservation. This conduct by non-Indians within the reservation

threatened the tribe’s interest in the safe operation of motor

vehicles on the roads and highways on the reservation. See Hinshaw

v. Mahler, 42 F.3d at 1180; cf. Sage v. Lodge Grass School District

No. 27, 13 Indian L. Rep. 6035, 6039 (Crow Ct. App. 1986) (remand

following National Farmers Union; student hit by motorcycle on

school parking lot; tribe has legitimate interest in protecting

health and safety of school children attending school within

reservation). The tribe also has an interest in affording those

who have been injured on the reservation with a judicial forum.

This interest is admittedly abstract compared to the safe operation

of motor vehicles. However, disregarding the jurisdiction of

tribal courts, which play a vital role in tribal self-government,

undermines their authority over reservation affairs and to that

extent imperils the political integrity of the tribe. 

For these reasons, I would affirm the order of the district

court holding the tribal court has subject matter jurisdiction over

this reservation-based tort action between non-tribal members.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.