No. 04-595 IN THE SUPREME COURT OF THE STATE OF MONTANA 2006 MT 220

DARWIN CLOVERTON ZEMPEL, Plaintiff and Appellant,

v. LENORA LINDA LIBERTY, JOHN HERAK, and TINY’S TAVERN OF CHARLO, INC., Defendants and Respondents.

APPEAL FROM: The District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DV 2004-03, Honorable C.B. McNeil, Presiding Judge

COUNSEL OF RECORD: For Appellant: William L. Managhan, Managhan La w Firm, PLLC, Kalispell, Montana For Respondents: Kati G. Kintli, Browning, Kaleczyc, Berry & Hoven, P.C., Helena, Montana John Herek, pro se , Dixon, Montana
Submitted on Briefs: April 5, 2005 Decided: September 6, 2006 Filed:

__________________________________________ Clerk2 Justice James C. Nelson delivered the Opinion of the Court. ¶1 Darwin Cloverton Zempel (“Zempel”) app eals from the orders of the District Court of the Twentieth Judicial District, La ke County, which dismissed his negligence claim against Lenora Linda Liberty (“Li berty”), John Herak (“ Herak”), and Tiny’s Tavern of Charlo, Inc. (“TTC”). We affi rm in part, reverse in part, and remand. ¶2 In this appeal, we address the issue of tribal jurisdiction over a suit to which a non-tribal member is a party. We receive th is appeal pursuant to the District Court’s decision to dismiss the suit on jurisdictional grounds. Thus , we must determine whether the court erred in this regard. FACTUAL AND PROCED URAL BACKGROUND ¶3 The Flathead Indian Reservation is lo cated in northwestern Montana and is home to the Confederated Sa lish and Kootenai Tribes (“CSKT” ). TTC, a Montana corporation, operates a bar in the town of Charlo, which is located within the exterior boundaries of the Reservation. TTC’s sole share holder, Liberty, is a tribal member. ¶4 Zempel, who is not a tribal member, spent the evening of July 4, 2003, at TTC. Although he was not yet twenty-one years ol d, he was repeatedly served alcoholic beverages by one or more bart enders. In the ear ly morning hours of July 5, another patron, Brandy Jo Moore (“Moore”), attempted to drive Zempel home in a car registered to one Tina Zempel. Proceeding south on Montana State Highway 212, Moore lost control of the vehicle, causing it to roll at le ast twice. Zempel wa s seriously injured in the accident. Moore sustained fatal injuries and was pronounced de ad at the scene.3 ¶5 In January of 2004, Zempel filed a neg ligence claim against Liberty, Herak, and TTC. The Complaint alleged th at: (1) Liberty and Herak we re the owners and operators of TTC; (2) TTC’s bartenders served Zempel numerous alc oholic beverages even though they knew he was not of legal drinking age; (3 ) the bartenders continued to serve Zempel after he became visibly intoxicated; (4 ) Zempel eventually vomited and lost consciousness as a result of th e alcohol; (5) Zempel was then placed in the passenger seat of his car; (6) TTC’s bartenders continue d to serve Moore after she became visibly intoxicated; (7) the bartenders drank alcoholic beverages that evening, while on duty, with Zempel and Moore; (8) the bartenders knew that Zempel was incapacitated, that Moore was intoxicated, and that Moore intended to drive Zempel home; and (9) the bartenders made no effort to stop Moore from attempting to drive Zempel home. Upon these allegations, inter alia , Zempel claimed that the Defendants had acted negligently and violated Montana statutory law. 1

1 Zempel claimed that TTC had violated § 27- 1-710, MCA. However, he alleged no facts that would constitute a “violation” of this statute. In fact, § 27-1-710, MC A, does not prohibit the conduct at issue in this case. Rather, it merely “s et[s] statutory criteria governing the liability of a person or entity that furnishes an alcoholic beverage for injury or damage arising from an event involving the person who consumed the bevera ge.” Section 27-1- 710(1), MCA. Most importantly for Zempel’s case, § 27-1-710, MCA, limits the grounds on which a finding of liability may rest. Zempel also claimed that TTC had “violated” § 16-3-301(3), MCA. Although the alleged facts do amount to violations of this statute, another statutor y provision states that such violations are not a basis for a finding of liabilit y. Specifically, § 27-1-710(2), MCA, provides (with one exception which Zempel has not ra ised) that “a person or entity furnishing an alcoholic beverage may not be found liable for injury or damage arising from an event involving the consumer wholly or partially on the basis of a provision or a violation of a provision of Title 16.” Thus, while Zempel alleged statutory “v iolations,” his suit, as pled, merely amounts to a negligence claim.4 ¶6 Liberty filed a Motion seeking dismissal of both he rself and TTC. In doing so, Liberty acted on her own behalf and purporte d to act on behalf of TTC. With this Motion, Liberty argued that the District Court lacked jurisdiction to adjudicate the dispute because of her status as a CSKT me mber and TTC’s status as an “Indian-owned business.” In support of her arguments, she attached a certif icate from the CSKT Enrollment Office, verifying he r membership with the Trib e. She also attached a certificate, ostensibly issued by CSKT, which classified TTC as a “Certified Indian Preference Business” and identified Libert y as TTC’s owner. The District Court dismissed Liberty, sta ting “this Court lacks jurisdiction over Plaintiff’s complaint against a tribal member.” The court declined to dismiss TTC, however, noting its status as a Montana corporation. ¶7 Herak also filed a pro se Motion to Dismiss wherein he argued that he was not properly named as a defendant. In support of this contention, Herak claimed that he had no ownership interest in TTC. The District Court denied this request without addressing Herak’s argument. ¶8 Thereafter, Liberty took a novel approach; she filed a document on behalf of TTC which she identified as a “Response” to th e court’s Order declining to dismiss the corporation. She also filed another Motion to Dismiss on behalf of TTC. In doing so, Liberty maintained that TTC “is an Indian -owned business and is entitled to Tribal Jurisdiction.” To support th is contention, Liberty attach ed copies of a number of business documents, including, inter alia : (1) TTC = s Articles of Incorporation, showing5 the business to have been formed pursuant to the Montana Business Corporation Act; (2) TTC’s liquor license, issued by the State of Montana, permitting TTC to sell alcoholic beverages in accordance with Montana law; (3) TTC’s gambling operator license, issued by the State of Montana, permitting TTC to operate nine video gaming machines; and (4) a tax assessment for the premises whic h TTC occupied, issued by the Lake County Treasurer, assessing both state and county taxes. ¶9 Herak also filed a “Response” to the court’s denial of his Motion to Dismiss, as well as another Motion to Dismiss. Once ag ain, Herak claimed that he had no ownership interest in TTC. While making the same ar gument which he had ad vanced in his first Motion to Dismiss, Herak also referred the court to the documents which Liberty filed with TTC’s second Motion to Dismiss. ¶10 The District Court then entered an Order dismissing Herak and TTC and, consequently, dismissing Zempel’s Complaint in its entirety. As for Herak’s Motion, the Court stated: “Herak has no ownership intere st in [TTC or its] liquor license and his motion to dismiss must be gran ted for the failure of Plainti ff’s complaint to state a claim entitling Plaintiff to relief from said Defendant.” As for TTC’s Motion, the court concluded that it lacked jurisdiction over the corporation, st ating: “Liberty is the sole owner and stockholder of said Defendant co rporation and its State of Montana liquor license and, therefore, said corporation Defe ndant is an Indian owned business.” Zempel then appealed to this Court.6 STANDARD OF REVIEW ¶11 When a party seeks dismissal of a suit base d on the claim that jurisdiction properly lies in a tribal court, the trial judge must determine whether the complaint states facts which, if true, would vest the district court with subject matter jurisdiction. See General Constructors, Inc., v. Chewculator, Inc. , 2001 MT 54, ¶¶ 13, 16, 304 Mont. 319, ¶¶ 13, 16, 21 P.3d 604, ¶¶ 13, 16 (citing Liberty Northwest Ins. Co rp. v. State Compensation Ins. Fund , 1998 MT 169, ¶ 7, 289 Mont. 475, ¶ 7, 962 P.2d 1167, ¶ 7). A district court’s determination that it lacks subject matter ju risdiction is a conclusion of law which we review to ascertain whether the court’s interpretation of the law is correct. General
Constructors , ¶ 16 (citing In re McGurran , 1999 MT 192, ¶ 7, 29 5 Mont. 357, ¶ 7, 983 P.2d 968, ¶ 7). DISCUSSION ¶12 Before commencing our jurisdictional anal ysis we address Herak’s dismissal and two issues regarding Liberty’s status as an individual defendant in this suit. ¶13 Zempel purports to appeal from the Dist rict Court’s Order dismissing Herak. However, Zempel has not properly raised Herak’s dismissal as an issue in this appeal. As noted above, while the District Court dism issed TTC and Liberty on jurisdictional grounds, it dismissed Herak for a different reason—i.e., because he had no ownership interest in TTC. In his initial brief on appeal, Zempel only presents arguments challenging the District Court’ s conclusions regarding the issu e of jurisdiction. Then, in his reply brief, Zempel presents a short argument challenging the District Court’s7 decision to dismiss Herak. Essentially, Zempel seeks an op portunity to conduct discovery regarding Herak’s ties to TTC. We will not address this argument because, as our well-settled precedent dictates, this Court does not consider issues raised for the first time in a reply brief. Pengra v. State , 2000 MT 291, ¶ 13, 302 M ont. 276, ¶ 13, 14 P.3d 499, ¶ 13 (citing Loney v. Milodragovich, Dale & Dye, P.C. , 273 Mont. 506, 512, 905 P.2d 158, 162 (1995)). A ccordingly, the District Court’s dismissal of Herak is affirmed. ¶14 As for Liberty’s status in this suit, the record does not reve al why Zempel named her, TTC’s sole shareholder, as an individual defendant. “Under Montana law, it is well settled that a corporation has a separate and distinct identity from its stockholders.” Moats Trucking Co., Inc. v. Gallatin Dairies, Inc. , 231 Mont. 474, 477, 753 P.2d 883, 885 (1988) (citations omitted). As such, shareholders are not personally liable for the acts of a corporation, § 35-1-534(2), MCA, un less the distinction between the corporation and the shareholder may be disregarded—i.e ., unless the “corporate veil” is pierced, Peschel Family Trust v. Colonna , 2003 MT 216, ¶¶ 21-42, 317 Mont. 127, ¶¶ 21-42, 75 P.3d 793, ¶¶ 21-42. ¶15 Zempel’s Complaint does not allege any acts attributable to Liberty individually. Thus, it would seem that he may have sought to hold her accountable by piercing the corporate veil which separates Liberty from TTC for liability pur poses. Yet, the Complaint does not allege any facts even remotely suggesting that TTC’s corporate veil should be pierced in this case. Of course, th e fact that Liberty is TTC’s sole shareholder8 “is not, by itself, enough to warrant piercing the corporate veil.” Meridian Minerals Co. v. Nicor Minerals, Inc. , 228 Mont. 274, 285, 742 P.2d 4 56, 462 (1987) (citation omitted). ¶16 We recognize that plaintiffs are generally not obligated to name a particular cause of action or plead the specific legal elements of a claim when filing a complaint, as we operate under “notice pleading” rules. See Kunst v. Pass , 1998 MT 71, ¶ 35, 288 Mont. 264, ¶ 35, 957 P.2d 1, ¶ 35 (c itations omitted). Indeed, pursuan t to M. R. Civ. P. 8(a), a complaint must only “put a defendant on notice of the facts the plaintiff in tends to prove; the facts must disclose the elements necessary to make the claim; and the complaint must demand judgment for the relief the plaintiff seeks.” Kunst , ¶ 35 (emphasis added) (citation omitted). We are also mindful that co mplaints must be cons trued broadl y in the plaintiff = s favor when determining whether he or she has stated a claim. See Fennessy v. Dorrington , 2001 MT 204, ¶ 9, 306 Mont. 307, ¶ 9, 32 P.3d 1250, ¶ 9 (citation omitted). ¶17 Here, construing the Complaint broadly, and recognizing that plaintiffs are generally not subject to any technical plea ding requirements, it nonetheless appears that Zempel failed to state a claim against Liberty. We make this observation because we are troubled by the fact that Li berty was put to the inconvenie nce and expense of defending herself in this suit even thou gh Zempel failed to provide a ny justification for naming her as an individual defendant. 2 Having expressed our concern, we will not resolve this issue

2 We are equally troubled that Zempel has drag ged Herak into this litigation, as the Complaint does not state a claim against him. In fact, the record before us contains absolutely nothing to justify Herak’s inclusion as a defendant in this suit. Yet, he has been forced to defend himself in the District Court proceedi ngs and in this appeal.9 here, as the parties have focused thei r arguments on the jurisdictional issue. 3 We presume Liberty will be dismissed on re mand unless Zempel properly amends his Complaint, pursuant to M. R. Civ. P. 15(a), to justify her inclusion as a defendant. ¶18 Finally, as we did in Audit Services, Inc. v. Frontier-West, Inc. , 252 Mont. 142, 148, 827 P.2d 1242, 1246, (1 992), we note another important issue which neither the parties nor the District Court have addr essed. Non-lawyers may not represent corporations in district court proceedings. Audit Services , 252 Mont. at 148, 827 P.2d at 1246 (citing Weaver v. Law Firm of Graybill , 246 Mont. 175, 178, 803 P.2d 1089, 1091 (1990)) (holding that a corporation is a legal entity which is separate from the agents who act on its behalf, and it can not appear on its own behalf thro ugh an agent other than an attorney). We have explicitly warned the district courts regarding this subject, having identified it as “an issue of importance.” Audit Services , 252 Mont. at 148, 827 P.2d at 1246. Indeed, we have observed that a non-lawyer who appears on behalf of another in a district court proceeding is guilty of cont empt of court pursuan t to § 37-61-210, MCA. 4
Weaver , 246 Mont. at 178, 803 P.2d at 1091. ¶19 Here, as noted above, Liberty purported to act on behalf of TTC in the District Court proceedings, filing an initial Motion to Dismiss as well as a “Response” to the District Court’s Order and a subsequent Motion to Dismiss. In doing so, she acted in contempt of court. Liberty is not licensed to practice law in Montana, nor did she claim

3 Liberty has not filed a brief in this appeal. 4 Section 37-61-210, MCA, provides: “ Penalty for practicing without license. If any person practices law in any court, except a justice = s court or a city court, without having received a license as attorney and counselor, he is guilty of a contempt of court.”10 to be in the proceedings below. Yet, the District Court failed to hold her in contempt. In fact, the court granted one the motions Libert y filed on behalf of TTC, allowing her to “represent” TTC and thereby pr actice law without a license. Consequently, we again admonish district courts to observe our ca se law on this important issue and exercise vigilance in ensuring that onl y licensed legal practitioners re present corporate entities in district court proceedings. 5 Tribal Sovereignty ¶20 Turning now to our jurisdictional analysis , we observe the Un ited States Supreme Court’s holdings regarding the retained sovere ignty of Indian tribes and the extent of tribal civil authority. The Co urt has stated that “Indian tr ibes are ‘domestic dependent nations’ that exercise inherent sovereign au thority over their members and territories.” Oklahoma Tax Comm’n v. Potawatomi Tribe , 498 U.S. 505, 509, 111 S.Ct. 905, 909 (1991) (citation omitted). Th e Court has also stated: Indian tribes are distinct, independen t political communities, retaining their original natural rights in matters of local self-government. Although no longer possessed of the full attributes of sovereignty, they remain a separate people, with the power of regulating their internal and social relations. They have power to make their own substantive law in internal matters, [including rules regarding membership , inheritance, and domestic relations] and to enforce that la w in their own forums. Santa Clara Pueblo v. Martinez , 436 U.S. 49, 55-56, 98 S.Ct. 1670, 1675 (1978) (internal citations and quotation marks omitted).

5 TTC has obtained proper re presentation for this appeal.11 ¶21 Although Indian tribes possess “attributes of sovereignty” over both their members and their territories, “their dependent status generally precludes extension of tribal civil authority beyond these limits.” Atkinson Trading Co., Inc., v. Shirley , 532 U.S. 645, 659, 121 S.Ct. 1825, 1835 (2001) (citation omitted ). More specifically, “the inherent sovereignty of Indian tribes [is] limited to their members and their terr itory: [E]xercise of tribal power beyond what is necessary to protect tribal se lf-government or to control internal relations is inconsistent with the dependent status of the tribes.” Atkinson , 532 U.S. at 650-51, 121 S.Ct. at 1830 (citation and internal quotation marks omitted) (first alteration added, second alteration in original). Thus, “[t]ribal jurisd iction is limited: For powers not expressly c onferred them by federal statute or treaty, Indian tribes must rely upon their retained or inherent sovereignty.” Atkinson , 532 U.S. at 649-50, 121 S.Ct. at
1830.
The Montana Rule ¶22 Montana v. United States , 450 U.S. 544, 101 S.Ct . 1245 (1981), is “the pathmarking case concerning tribal ci vil authority over nonmembers.” Strate v. A-1
Contractors , 520 U.S. 438, 445, 117 S.Ct. 1404, 1409 (1997). The Montana Court enunciated the “general proposition” that “the inherent sovereign po wers of an Indian tribe do not extend to th e activities of nonmembers of the tribe.” Montana , 450 U.S. at 565, 101 S.Ct. at 1258. To this general rule, the Court then a ppended two exceptions, noting, “[t]o be sure, Indian tribes reta in inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their re servations, even on non -Indian fee lands.”12 Montana , 450 U.S. at 565, 101 S.Ct. at 1258 (em phasis added). First, the Court stated: “A tribe may regulate, through taxation, li censing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, le ases, or other arrangements.” Montana , 450 U.S. at 565, 101 S.Ct. at 1258 (citati ons omitted). Second, the Court stat ed: “A tribe may also retain inherent power to exercise ci vil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Montana , 450 U.S. at 566, 101 S.Ct. at 1258 (citations omitted). ¶23 While Montana immediately dealt with tribal regulatory authority, 6 it “broadly addressed the concept of ‘inherent sovereignty.’ ” Strate , 520 U.S. at 453, 117 S.Ct. at 1413. Subsequent to the Montana decision, the Court held in Strate that as to non-members, “a tribe’s adjudicative jurisd iction does not exceed its legislative jurisdiction.” Strate , 520 U.S. at 453, 11 7 S.Ct. at 1413. The Strate Court then proceeded to apply Montana ’s “pathmarking” analysis to de termine the extent of tribal civil adjudicative jurisdiction. Particularly, the Court consid ered whether a tribal court had jurisdiction over a nonmember’s personal injury action which arose out of a car accident on a North Dakota state highway running through the Fort Berthold Indian Reservation (land as to which the Tribe at i ssue could not “assert a landowner’s right to

6 The issue in Montana was “the sources and scope of the po wer of an Indian tribe to regulatehunting and fishing by non-Indians on lands within its reservation owned in fee simple by nonIndians.” Montana , 450 U.S. at 547, 101 S.Ct. at 1249.13 occupy and exclude”). Strate , 520 U.S. at 442-43, 456-60, 117 S.Ct. at 1408, 1414-16.
Strate thus dictates that the Montana analysis controls the re solution of this appeal. Specifically, Strate dictates that, absent an “express au thorization [of tribal jurisdiction] by federal statute or treaty,” the analytical framework of Montana —i.e., the “general proposition” with its two exceptions—gove rns the determination of tribal civil adjudicative jurisdiction with respect to suits in which a nonmember is a party. Strate , 520 U.S. at 445, 117 S.Ct. at 1409. ¶24 In Nevada v. Hicks , 533 U.S. 353, 121 S.Ct. 2304 (2 001), the Court clarified that the Montana framework governs the determination of tribal civil adjudicative jurisdiction regardless of the status of the land where th e conduct at issue occurred or where the claim arose. Specifically, Justice Scalia st ated, in writing for the Court, that Montana “announc[ed] the general ru le of no jurisdiction ove r nonmembers” and “clearly impl[ied] that the general rule of Montana applies to both Indian and non-Indian land. The ownership status of land, in other words, is only on e factor to consider in determining whether regulation of the activities of nonmembers is ‘necessary to protect tribal self-government or to control internal relations.’ ” Hicks , 533 U.S. at 359-60, 121
S.Ct. at 2310. See also Hicks , 533 U.S. at 381, 121 S.Ct. at 2322 (Souter, J., concurring, joined by Kennedy, J., and Thomas, J.) (“After Strate , it is undeniable that a tribe’s remaining inherent civil jurisdiction to ad judicate civil claims arising out of acts committed on a reservation depends in the first instance on the character of the individual over whom jurisdiction is clai med, not on the title to the soil on which he acted.”); Hicks ,14 533 U.S. at 387, 121 S.Ct. at 2324-25 (O’Con nor, J., concurring in part and concurring in the judgment, joined by Stevens, J., and Breye r, J.) (“Today, the C ourt finally resolves that Montana v. United States , 450 U.S. 544 (1981), governs a tribe’s civil jurisdiction over nonmembers regardle ss of land ownership.”). ¶25 We note that while TTC acknowledges Montana as controlling authority, TTC also suggests that we condition our reliance on the Montana framework by adopting a presumption purportedly expre ssed by the United States Supr eme Court. Specifically, TTC asserts that the CSKT Tribal Court derives “broad civil jurisdiction from the doctrine of inherent Tribal sovereignty” and that “[c]iv il jurisdiction over disputes between tribal members and other entities, arisi ng in whole or in part on the Reservation, lies presumptively within the Tribal Court.” In support of this assertion, TTC cites Iowa Mutual Ins. Co. v. LaPlante , 480 U.S. 9, 107 S.Ct. 971 (1987). However, in Strate , the Court expressly rejected this distorted representation of Iowa Mutual . First, the Court noted that Iowa Mutual did not establish tribal adjudi cative authority, even over the lawsuit involved in th at case, but rather, described an “exhaustion rule allowing tribal courts initially to respond to an invocation of their jurisdiction.” Strate , 520 U.S. at 448, 117 S.Ct. at 1410. The Court then quoted the subject language in Iowa Mutual : “Tribal authority over the activities of non-Indians on reserv ation lands is an important part of tribal sovereignty. Civil ju risdiction over such activities pr esumptively lies in the tribal
courts . . . .” Strate , 520 U.S. at 451, 117 S.Ct. at 1412 (internal citations and internal quotation marks omitted). In rejecting the notio n of broad tribal civil jurisdiction, such as15 TTC would have us adopt here, the Court read the subject language “in context,” stating that, in light of the authorities cited therein,
the Iowa Mutual statement emphasized by petitioners does not limit the Montana rule. In keeping with the precedent to which Iowa Mutual refers, the statement stands for nothing more than the unremarkable proposition that, where tribes possess authority to regulate the activities of nonmembers, “[c]ivil jurisdiction over [disputes arising out of] such activities presumptively lies in the tribal courts.”
Strate , 520 U.S. at 453, 117 S.Ct. at 1413 (a lterations in original). The Court then reiterated its point, stating that Iowa Mutual does “not expand or stand apart from Montana’s instruction on th e inherent sovereign powers of an Indian tribe.” Strate , 520 U.S. at 453, 117 S.Ct. at 1413 (internal quotations omitted ). Accordingly, we proceed here without assuming any inherent tribal jurisdiction to adjudi cate suits involving nonmembers, but rather, following the Montana analysis as did the Court in Strate

. ¶26 As noted, Zempel is not a member of CS KT. Further, TTC has not presented any federal statute or treaty that provides for tribal jurisdiction in cases such as this. Thus, we must determine whether either of the Montana exceptions allows for tribal adjudicative jurisdiction here. In conducting this analysis, we note that the party asserting the existence of tribal adjudi cative jurisdiction under the Montana exceptions has the burden of demonstrating the facts necessary to support that assertion. Strate , 520 U.S. at 456, 117 S.Ct at 1414; Atkinson , 532 U.S. at 654, 659, 121 S.Ct. at 1832, 1835. ¶27 Before proceeding, we must specify the mean ing of a critical term in this analysis. Although the Montana Court referred to “nonmembers” and “non-Indians”16 interchangeably, the relevant distinction in a determination of i nherent tribal civil 7 jurisdiction, with respect to the status of individuals, is between tribal members and nonmembers. Hicks , 533 U.S. at 377, n.2, 121 S.Ct. at 2319, n.2 (Souter, J., concurring, joined by Kennedy, J., and Th omas, J.) (“the relevant dis tinction, as we implicitly acknowledged in Strate , is between members and nonmembe rs of the tribe.”). Indians may be tribal members or nonmembers. Th us, for the purposes of a tribal civil jurisdiction analysis, the term “non-member” encompasses anyone who is not a member of the tribe at issue, including Indians who are members of a different tribe, as well as Indians who are not members of any tribe. Accordingly, we do not employ the terms
“Indian” and “non-Indian” to describe an individual = s personal status for the purposes of our jurisdictional analysis. The “Consensual Rela tionship” Exception ¶28 The first Montana exception recognizes inherent tribal authority to exercise civil adjudicative jurisdiction with respect to “activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial deali ng, contracts, leases, or other arrangements.” Strate , 520 U.S. at 456-57, 117 S.Ct . at 1415 (internal quotation marks omitted).

7 In Oliphant v. Suquamish Tribe , 435 U.S. 191, 212, 98 S.Ct. 1011, 10 22-23 (1978), the United States Supreme Court held that Indian tribes lack criminal jurisdiction over non-Indians. In Duro v. Reina , 495 U.S. 676, 684-85, 110 S.Ct. 2053, 2059 (1990), the Court held that Indian tribes also lack criminal jurisdictio n over nonmember Indians. Shortly after Duro was decided, Congress provided for tribal criminal jurisdiction over nonmember Indians. See 25 U.S.C. § 1301(2).17 ¶29 This exception establishes a three-part test to determine whether a nonmember’s relationship serves as the basi s for tribal jurisdiction. Th e relationship: (1) must be consensual; (2) must involve a tribe or a tribal member; and (3) must be entered into through commercial dealings, contracts, leases , or “other arrangements.” We conclude that the relationship at issue here does not qua lify because it did not in volve “the tribe or its members” and it can not be considered “consensual.” Either of these facts, independently, precludes a finding of tribal jurisdiction under the first Montana exception, as the three requirement s noted above are conjunctive. ¶30 The conduct at issue here is TTC’s a lleged negligence in serving alcoholic beverages to Zempel and failin g to prevent Moore from attemp ting to drive him home. The relationship from which this conduct ar ises is that betw een TTC and Zempel. 8 TTC does not claim to be a tribal member. Indeed, the membership provisions of CSKT’s Constitution, found in Article II, do not allo w for corporations to obtain membership status. However, TTC repeatedly asserts th at it is an “Indian -owned business” and suggests that Liberty’s status as a tribal member somehow imbues the corporation with a tribal characteristic sufficient to establishes tr ibal jurisdiction. As noted above, it is well settled that a corporation maintains a legal id entity which is “separate and distinct” from that of its shareholders. Moats Trucking Co. , 231 Mont. at 477, 753 P.2d at 885. Thus, we can not hold that TTC a ssumes the mantle of Libert y’s tribal membership for

8 As noted above, Zempel has not stated a cl aim against Liberty. Not surprisingly, then, TTC does not identify any relationship between Zempel and Liberty that could be analyzed under this exception. Thus, we are left to consid er Zempel’s relationship with TTC.18 jurisdictional purposes. Accordingly, we take TTC for what it is; a corporate entity which exists by virtue of Montana law, an d which derives income by selling alcohol to the public under privilege of a Montana liquor license. ¶31 Because the relationship at issue here is between TTC and Zempel, and because neither TTC nor Zempel are tribal members, no relationship with “the tribe or its members” exists to provide a ba sis for tribal jurisdiction unde r this excepti on. Moreover, even if TTC were a tribal member, its inte raction with Zempel could not constitute a “consensual” relationship under this excep tion, as Montana statutory law prohibits Montana corporations from selling alcohol to individuals younger than twenty-one years of age. Section 16-3-301(3), MCA. Acco rdingly, we hold that CSKT’s inherent sovereignty does not encompass adjudicative jurisdiction over th is suit pursuant to
Montana = s first exception. The “Self-Governm ent” Exception ¶32 The second Montana exception recognizes inherent tribal authority to exercise civil adjudicative jurisdiction wi th respect to conduct that “threatens or has some direct effect on the political integrity , the economic security, or th e health or welfare of the tribe.” Strate , 520 U.S. at 457, 117 S.Ct. at 1415 (internal quotation marks omitted). ¶33 In Strate , the United States Supreme Court c onsidered whether a tribal court retained the authority to ad judicate a nonmember’s personal injury suit which arose from a car accident on a state highway running through a reservation. The Court held that the conduct at issue did not qualify under Montana = s second exception, stating:19 Undoubtedly, those who drive carele ssly on a public highway running through a reservation endanger all in th e vicinity, and surely jeopardize the safety of tribal members. But if Montana ’s second exception requires no more, the exception would se verely shrink the rule.
Strate , 520 U.S. at 457-58, 117 S.Ct. at 1415. In conjunction with this holding, Strate provided critical guidance for understanding Montana = s second exception, stating: Read in isolation, the Montana rule’s second exception can be misperceived. Key to its proper a pplication, however, is the Court’s preface: “Indian tribes retain their inhe rent power to punish tribal offenders, to determine tribal me mbership, to regulate domestic relations among members, and to prescrib e rules of inheritance for members. . . . But a tribe’s inherent power does not reach beyond what is necessary to protect tribal self-government or to control internal relations .”
Strate , 520 U.S. at 459, 117 S.Ct. at 1416 (e mphasis added) (citation and alterations omitted). 9 Immediately thereafter, the Court concluded: “Neither regulatory nor adjudicatory authority over the state highway ac cident at issue is n eeded to preserve the right of reservation Indians to make th eir own laws and be ruled by them.” Strate , 520 U.S. at 459, 117 S.Ct. at 1416 (citati on and internal quotation marks omitted). ¶34 TTC claims, in conclusory fashion, that tr ibal jurisdiction is necessary to control CSKT’s internal relations. However, TTC does not identify a ny internal tribal relation that would in fact be controlled by tribal ad judicative jurisdiction in this case, nor can we ascertain one.

9 The Atkinson Court observed that “the impact of the nonmember’s conduct must be demonstrably serious and must imperil the political integrity, the economic security, or the health and welfare of the tribe.” Atkinson , 532 U.S. at 659, 121 S.Ct. at 1835 (emphasis added) (citation and internal quotation marks omitted).20 ¶35 TTC does not argue that tribal jurisdiction in this case is necessa ry to protect tribal self-government. We observe, however, that the alleged tortious conduct here could surely endanger all in the vicinity of TT C, which may include CSKT members and the general public, similar to the ca reless driving identified in Strate . This certainly implicates CSKT’s interest in preserving the safety of its members. Moreover, the
“health or welfare of the tribe” clause in Montana = s second exception, if read in isolation, would seem to be applicable he re. However, in following the High Court’s lead along the path marked by Montana , we can not equate this part icular tribal interest in membership safety with the interest in prot ecting tribal self-government—i.e., “the right of [CSKT] to make [its] own laws and be ruled by them.” See Strate , 520 U.S. at 459,
117 S.Ct. at 1416. 10 To do so would dramatic ally broaden the scope of Montana = s second exception and thereby, as noted in Strate , 520 U.S. at 458, 117 S.Ct. at 1415, “severely shrink” Montana ’s general rule. ¶36 As noted above, the ownershi p status of land involved in a suit is a factor in determining a tribe’s need to protect self- government or control internal relations. Hicks , 533 U.S. at 359-60, 121 S.Ct. at 2310. Once the ownership status of the land at issue is established, a court may then consider the interplay between the land, the conduct at

10 See also Boxx v. Long Warrior , 265 F.3d 771, 773, 777 (9th Cir. 2001) (as amended, reported at 2001 U.S. App. LEXIS 24917) (hol ding that the Crow Tribe’s “great concern” with “alcoholrelated accidents” did not suppor t tribal jurisdiction over a negl igence suit involving a tribal member and a nonmember which arose out of a si ngle vehicle accident that occurred within the exterior boundaries of the Crow Reservation on non-Indian fee land, and stating: “If we were to find jurisdiction here, th e exception would swallow the rule because virtually every act that occurs on the reservation could be argued to have some . . . welfare ramification to the tribe.”) (citation and internal quotations marks omitted).21 issue, and tribal self-government. See Ford Motor Co. v. Todecheene , 394 F.3d 1170, 1172, 1182 (9th Cir. 2005) (identifying the land at issue as tribal trust land and then determining whether there existed any encroach ment upon the land or damage thereto, and whether use of the land had been interfere d with). Here, rather than discussing the ownership status of Montana Highway 212, where this tort claim arose, 11 or the ownership status of TTC’s pr emises, where the conduct at issue occurred, TTC merely asserts, repeatedly and fervently, that it is located entirel y within the exterior boundaries of the Flathead Indian Reservation; that it operates its business ex clusively within the exterior boundaries of the Reservation; and that the transaction at issue took place on the Reservation. ¶37 However, these assertions do not address the rele vant land issue—i.e., ownership

status of the land implicated in the suit. As noted in Hicks , the ownership of lands on an Indian reservation may reside with the tribes, with trib al members, and even with nonmembers, among others. Hicks , 533 U.S. at 383, 121 S.Ct at 2322 (Souter, J., concurring, joined by Kennedy, J., and Thomas, J.). Thus, it av ails TTC nothing to establish that that lands involved are loca ted “within the exteri or boundaries of the

11 Although it runs through the Fl athead Indian Reservation, Montana State Highway 212 is considered “alienated, non-Indian land” for th e purposes of jurisdictional analysis. Strate , 520 U.S. at 454, 117 S.Ct. at 1413; see also Wilson v. Marchington , 127 F.3d 805, 813-14 (9th Cir. 1997). A tort claim cannot arise until all the elements of the tort, including damages, are present. See Gabriel v. School Dist. No. 4, Libby , 264 Mont. 177, 180-81, 870 P.2d 1351, 1352-53 (1994) (holding that because death is a necessary elemen t in a wrongful death suit, the cause of action arises where the death occurs). “[A] tort is not wrongful conduct in the air; the arrow must hit its mark. Until there is hurt, there is no tort.” Heil v. Morrison Knudsen Corp. , 863 F.2d 546, 550 (7th Cir. 1988) (internal citation omitted). Thus, while the underlying alleged conduct occurred on TTC’s premises (the ownership status of which is unknown), Zempel’s claim arose on the State highway.22 Flathead Indian Reservation.” As TTC fails to present any relevant argument as to how the ownership status of the land involved in th is suit may factor into an analysis under the second Montana exception, we will not address the issue further. ¶38 Pursuant to Strate , we must recognize that CSKT’s adjudicative jurisdiction “does not reach beyond what is necessary to protect tribal self-government or to control internal relations.” Strate , 520 U.S. at 459, 117 S.Ct. at 1416 (citation and internal quotation marks omitted). The conduct at issue he re—TTC’s alleged negligence in serving alcoholic beverages to Zempel and failing to prevent Moore from at tempting to drive him home—while potentially dangerous to individual tribal members, does not pose a threat to CSKT’s self-government. Thus, tribal ad judicative jurisdiction ove r this action is not necessary to preserve CSKT’s ri ght to make its own laws and be ruled by them. As such, we hold that CSKT’s inhere nt sovereignty does not encompass adjudicative jurisdiction over this suit pursuant to Montana ’s second exception. CONCLUSION ¶39 The CSKT Tribal Court does not have ju risdiction over this case brought by a nonmember against a Montana corporation an d a tribal member. TTC has failed to identify any federal statute or treaty that provid es for tribal adjudicative jurisdiction here. Further, TTC has failed to demonstrate either a qualifying consensual relationship or a threat to tribal self-gov ernment that would overcome Montana = s general rule prohibiting tribal adjudicative jurisdiction over suits involving nonmembers . Thus, we conclude that23 the District Court erred in dismissing Zempel’s claim against TTC and Liberty on jurisdictional grounds. ¶40 We affirm the District Court = s dismissal of Herak. We reverse the court’s dismissal of TTC and Liberty and the conse quent dismissal of Zempel’s Complaint. Accordingly, we remand for further proceedings.

/S/ JAMES C. NELSON

We concur: /S/ KARLA M. GRAY /S/ PATRICIA COTTER /S/ JOHN WARNER /S/ W. WILLIAM LEAPHART /S/ BRIAN MORRIS /S/ JIM RICE