United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-1242

___________

Hornell Brewing Co., doing business *

as Ferolito, Vultaggio and Sons, Inc.; *

Heileman Brewing Co., Inc.; John *

Ferolito, Individually; Don Vultaggio, *

Individually, *

*

Plaintiffs-Appellees, *

*

v. * Appeals from the United States

* District Court for the

The Rosebud Sioux Tribal Court; * District of South Dakota.

Hon. Stanley Whiting, Pro-Tem *

Tribunal Judge; *

*

Defendants, *

*

Seth H. Big Crow, Sr., as Administrator *

of the Estate of Tasunke Witko, a/k/a *

Crazy Horse and as a member of and *

representative of the class of heirs of *

said estate, *

*

Defendant-Appellant, *

------------------------------------------------ *

Rosebud Sioux Tribe, *

*

Amicus Curiae. *
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___________

No. 97-1243

___________

Hornell Brewing Co., doing business *

as Ferolito, Vultaggio and Sons, Inc.; *

Heileman Brewing Co., Inc.; John *

Ferolito, Individually; Don Vultaggio, *

Individually, *

*

Plaintiffs-Appellees, *

*

v. *

*

The Rosebud Sioux Tribal Court; *

Hon. Stanley Whiting, Pro-Tem *

Tribunal Judge; *

*

Defendants-Appellants, *

*

Seth H. Big Crow, Sr., as Administrator *

of the Estate of Tasunke Witko, a/k/a *

Crazy Horse and as a member of and *

representative of the class of heirs of *

said estate, *

*

Defendant, *

------------------------------------------------ *

Rosebud Sioux Tribe, *

*

Amicus Curiae. *
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___________

No. 97-1244

___________

Hornell Brewing Co., doing business *

as Ferolito, Vultaggio and Sons, Inc.; *

Heileman Brewing Co., Inc.; John *

Ferolito, Individually; Don Vultaggio, *

Individually, *

*

Plaintiffs-Appellants, *

*

v. *

*

The Rosebud Sioux Tribal Court; *

Hon. Stanley Whiting, Pro-Tem *

Tribunal Judge; Seth H. Big Crow, Sr., *

as Administrator of the Estate of *

Tasunke Witko, a/k/a Crazy Horse and *

as a member of and representative of the *

class of heirs of said estate, *

*

Defendants-Appellees, *

*

------------------------------------------------ *

Rosebud Sioux Tribe, *

*

Amicus Curiae. *

___________

Submitted: November 17, 1997

Filed: January 14, 1998

___________

Before BOWMAN, LAY, and MURPHY, Circuit Judges.

___________
The Rosebud Sioux Reservation is located in South Dakota. 1

In 1992, Congress enacted a statute banning the use of the name Crazy Horse 2

on the label of any distilled spirit, wine, or malt beverage product. See Pub. L. No.

102-393 § 633, 106 Stat. 1729. In 1993, the United States District Court for the

Eastern District of New York concluded the statute violates the First Amendment of

the Constitution. See Hornell Brewing Co. v. Brady, 819 F. Supp. 1227, 1245-46

(E.D.N.Y. 1993).

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LAY, Circuit Judge.

Tasunke Witko, also known as Crazy Horse, was a renown and beloved leader

of the Oglala Sioux. He died in 1877. The Lakota people revere Crazy Horse as a

spiritual and political leader. We take judicial notice of the fact that on January 15,

1982, the United States Postal Service issued a stamp honoring Crazy Horse, and there

is a national Crazy Horse Monument under construction in South Dakota.

Crazy Horse opposed the use of alcohol by his people. Seth H. Big Crow, Sr.,

a descendant of Crazy Horse, acting as administrator of Crazy Horse’s Estate

(“Estate”), brought suit in the Rosebud Sioux Tribal Court contesting the use of the

1

Crazy Horse name by Hornell Brewing Co., doing business as Ferolito, Vultaggio and

Sons, Inc., Heileman Brewing Co., Inc., and John Ferolito and Don Vultaggio

(“Breweries”). The Estate challenged the Breweries’ use of the Crazy Horse name in

the manufacture, sale, and distribution of an alcoholic beverage called “The Original

Crazy Horse Malt Liquor” (“Crazy Horse Malt Liquor”). The complaint asserted

2

defamation, violation of the Estate’s right of publicity, and negligent and intentional

infliction of emotional distress. The complaint also alleged violations of the Lanham

Act, see 15 U.S.C. §§ 1051-1128 (1994), and the Indian Arts and Crafts Act, see 25

U.S.C. §§ 305- 305e (1994). The Estate sought injunctive and declaratory relief, as

well as damages.
The Rosebud Sioux Supreme Court observed: 3

In the advertising label affixed to each bottle of the

“Original Crazy Horse Malt Liquor,” Defendants clearly

exalt and direct their activities to the forum. The label

ornately proclaims:

The Black Hills of Dakota, steeped in the

history of the American West, home of Proud

Indian Nations. A land where imagination

conjures up images of blue clad Pony Soldiers

and magnificent Native American Warriors, A

land still rutted with wagon tracks of intrepid

pioneers. A land where wailful winds whisper

of Sitting Bull, Crazy Horse and Custer. A

land of character, of bravery, of tradition. A

land that truly speaks of the spirit that is

America.

J.A. at 198.

The Estate alleged a cause of action under section 1125(a) of the Lanham Act, 4

which provides:

(1) Any person who, on or in connection with any goods or

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On October 25, 1994, the tribal judge, Honorable Stanley E. Whiting, Pro-Tem

Tribunal Judge of the Rosebud Sioux Tribal Court, dismissed the Estate’s action on the

grounds that the tribal court lacked personal jurisdiction over the Breweries, and it

lacked subject matter jurisdiction over the Estate’s claims. J.A. at 13-34. The Estate

appealed the dismissal of its complaint to the Rosebud Sioux Supreme Court. 

On May 1, 1996, the Rosebud Sioux Supreme Court held the Breweries had

sufficient contacts with the Rosebud Sioux Reservation to uphold service of process,3

and the Estate had established “prima facie” subject-matter jurisdiction. Id. at 187-214.

The tribal supreme court also held that the tribal court improperly dismissed the Estate’s

Lanham Act claim. Id. at 216-17. The tribal supreme court held, however, 4
services, or any container for goods, uses in commerce any word, term,

name, symbol, or device, or any combination thereof, or any false

designation of origin, false or misleading description of fact, or false or

misleading representation of fact, which—

(A) is likely to cause confusion, or to cause mistake,

or to deceive as to the affiliation, connection, or association

of such person with another person, or as to the origin,

sponsorship, or approval of his or her goods, services, or

commercial activities by another person, or

(B) in commercial advertising or promotion,

misrepresents the nature, characteristics, qualities, or

geographic origin of his or her or another person’s goods,

services, or commercial activities,

shall be liable in a civil action by any person who believes that he or she

is or is likely to be damaged by such act.

15 U.S.C. § 1125(a).

-6-

that the Estate did not have standing to sue under the Indian Arts and Crafts Act. Id.
Section 305e(c)(1) of the Indian Arts and Crafts Act of 1990 expressly provides: 5

(c) Persons who may initiate civil actions

(1) A civil action under subsection (a) of this section may

be commenced--

(A) by the Attorney General of the United

States upon request of the Secretary of

the Interior on behalf of an Indian who

is a member of an Indian tribe or on

behalf of an Indian tribe or Indian arts

and crafts organization; or

(B) by an Indian tribe on behalf of itself, an

Indian who is a member of the tribe, or

on behalf of an Indian arts and crafts

organization.

25 U.S.C. § 305e(c)(1).

Thereafter, the Rosebud Sioux Tribe filed a motion in the tribal court for

6

permissive joinder as a co-plaintiff under the Rosebud Sioux Tribe Law and Order

Code, Rules of Civil Procedure, Rule 20(a). The Tribe asserted an independent right

of action under the Indian Arts and Crafts Act. The tribal court granted the Tribe's

motion to join as a co-plaintiff. See J.A. at 241.

The Rosebud Sioux Tribe was not joined as a party. It appears in the present 7

appeal as Amicus Curiae.

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at 214-16. The Rosebud Sioux Supreme Court then remanded the case to the tribal 5

court for a “prompt trial on the merits.” Id. at 217. 6

In July 1996, the Breweries filed suit in the United States District Court for the

District of South Dakota against the Estate, the Rosebud Sioux Tribal Court, and the 7
Honorable Charles B. Kornmann, United States District Judge for the District 8

of South Dakota.

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tribal court judge, seeking declaratory and injunctive relief. The Breweries asserted the

tribal court had neither personal jurisdiction over the Breweries, nor subject-matter

jurisdiction over the Estate’s claims. The district court enjoined the Rosebud Sioux

8

Tribal Court from conducting any further proceedings on the merits of the case. J.A.

at 391 (Hornell Brewing Co. v. Rosebud Sioux Tribal Court, Civ. No. 96-3028 (D.S.D.

Dec. 3, 1996)). The district court disagreed with the rationale the Rosebud Sioux

Supreme Court had used to find subject matter jurisdiction over the Estate’s claims. 
Montana is the initial Supreme Court case addressing the civil authority tribes 9

may exercise over nonmembers carrying on activities within a reservation. See

Montana, 450 U.S. at 544. The Montana Court determined the authority of the Crow

Tribe to regulate hunting and fishing by non-Indians on lands within the Tribe’s

reservation owned in fee simple by non-Indians. The Court concluded the Tribe did not

have the authority to regulate nonmembers in these particular circumstances but did

state:

To 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. A tribe may regulate, through taxation, licensing,

or other means, the activities of nonmembers who enter consensual

relationships with the tribe or its members, through commercial dealing,

contracts, leases, or other arrangements. A tribe may also retain inherent

power to exercise civil authority over the conduct of non-Indians on fee

lands within its reservation when that conduct threatens or has some

direct effect on the political integrity, the economic security, or the health

or welfare of the tribe.

Id. at 565-66 (citations omitted). This passage thus describes two exceptions to the

general rule that Indian tribes may not exercise civil authority over the conduct of

nonmembers on alienated, non-Indian land within a reservation.

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In its discussion of subject matter jurisdiction, the Rosebud Sioux Supreme Court

first held Montana v. United States, 450 U.S. 544 (1981), inapplicable to this case.9

J.A. at 209. The tribal supreme court said Montana dealt only with questions
In the original tribal court decision, the tribal court did not conduct an

10

evidentiary hearing but found The Estate had established a prima facie case of

jurisdiction. The Rosebud Sioux Supreme Court faulted the tribal court for not

separating the discussions of personal and subject matter jurisdiction. The supreme

court, although remanding the case for “prompt trial on the merits,” did state that upon

remand, “if there [were] any subsequent questions of credibility or fact,” the plaintiff

must establish the “jurisdictional facts” by a preponderance of evidence. J.A. at 187.

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of statutory construction, is specifically limited to fee lands, and is properly limited to

questions of tribal regulatory and legislative authority and not to questions of tribal

adjudicatory authority. Id. at 207-10. The tribal supreme court also held that even if

Montana were applicable to this case, the Breweries’ conduct satisfied both of the

Montana exceptions. Id. at 210. The tribal supreme court stated the Breweries’ failure

to enter into a consensual relationship with the Estate for the use of the name and

reputation of Crazy Horse satisfies the first exception. Id. at 211. The tribal supreme

court further stated that the Breweries’ conduct satisfies the second exception, because

the Tribe’s health and welfare depend upon the Tribe’s ability to provide a forum for

resolution of the Breweries’ allegedly harmful conduct. Id. at 212.

The United States District Court for the District of South Dakota disagreed,

finding Montana directly applicable to this case, and stated that because neither

Montana exception was met in this case, the tribal courts lacked subject matter

jurisdiction over the Estate’s claims. J.A. at 387-88. The district court concluded,

however, the Breweries had not exhausted their remedies, “because the tribal court

should be given the first full opportunity to determine whether [the Estate] has

established the jurisdictional facts by a preponderance of the evidence, as distinguished

from merely establishing a prima facie case of jurisdiction.” Id. at 386. The district 10

court entered an order enjoining the tribal court from proceeding
Although the Tribe has now made a claim over the same subject matter in the 11

tribal court, it is not a party to this appeal. Nonetheless, the preliminary injunction

issued by the district court enjoined the tribal court from exercising subject matter

jurisdiction as to the claim made by the Tribe against all of the non-Indian defendants.

-11-

on the merits. Id. at 391. It remanded the case to the tribal court for the limited purpose

of conducting an evidentiary hearing on the issues of personal and subject matter

jurisdiction. Thus, under the district court’s order, this case has been remanded to tribal

court for further proceedings as to both personal and subject matter jurisdiction, and the

tribal court is enjoined from proceeding on the merits of this case. Id. at 391-92.

The tribal court, tribal judge, and the Estate have now appealed the issuance of

the preliminary injunction, pursuant to 28 U.S.C. § 1292(a)(1). They argue the Rosebud

Sioux Tribal Court has inherent and exclusive jurisdiction over the personal property

rights vested in the Estate. The Breweries have cross-appealed, asserting the order

remanding the case for evidentiary hearings on jurisdiction should be vacated, and this

court should hold that the tribal court lacks subject matter jurisdiction. Although the

parties assert differing viewpoints as to whether the district court properly issued a

preliminary injunction, we need not review this holding since, as we discuss infra, we

find the tribal court lacks subject matter jurisdiction over the Estate’s claims against the

non-Indian Breweries.11

We begin our discussion of subject matter jurisdiction by noting that, “absent

express authorization by federal statute or treaty, tribal jurisdiction over the conduct of

nonmembers exists only in limited circumstances.” Strate v. A-1 Contractors, ___ U.S.

___, 117 S. Ct. 1404, 1409 (1997) (citing Oliphant v. Suquamish Indian Tribe,
There is no federal statute or treaty conferring subject matter jurisdiction over 12

the Estate’s claims to the tribal court.

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435 U.S. 191 (1978) and Montana v. United States, 450 U.S. 544 (1981)). Indian

12

tribes do, however, “retain inherent sovereign power to exercise some forms of civil

jurisdiction over non-Indians on their reservations.” Montana, 450 U.S. at 565

(emphasis added). The operative phrase is “on their reservations.” Neither Montana

nor its progeny purports to allow Indian tribes to exercise civil jurisdiction over the

activities or conduct of non-Indians occurring outside their reservations. 

The activities at issue in this case are the Breweries’ manufacture, sale, and

distribution of Crazy Horse Malt Liquor. It is undisputed that the Breweries do not

conduct those activities on the Rosebud Sioux Reservation or within South Dakota.

Thus, because the conduct and activities at issue here did not occur on the Rosebud

Sioux Reservation, we do not believe Montana<s discussion of activities of non-Indians

on fee land within a reservation is relevant to the facts of this case. More importantly,

the parties fail to cite a case in which the adjudicatory power of the tribal court vested

over activity occurring outside the confines of a reservation. The mere fact that a

member of a tribe or a tribe itself has a cultural interest in conduct occurring outside a

reservation does not create jurisdiction of a tribal court under its powers of limited

inherent sovereignty. The analysis of Montana, and the cases the Montana Court

discussed, expressly or implicitly recognize tribes’ limited authority over activity

occurring within the reservation and tribes’ lack of authority “to determine their external

relations.” Montana, 450 U.S. at 564 (quoting United States v. Wheeler, 435 U.S. 313,

326 (1978)). As Montana emphasizes, “exercise of tribal power beyond what is

necessary to protect tribal self-government or to control internal relations is inconsistent

with the dependent status of the tribes, and so cannot survive without express

Congressional delegation.” Id.
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At the time of the tribal court proceedings, as well as at the time of the issuance

of the district court’s injunction, neither the parties nor the various tribunals directly

involved in this case had the benefit of the United States Supreme Court’s recent

decision in Strate v. A-1 Contractors. Once again, however, the facts of Strate, like

Montana, relate to use by non-Indians of fee lands within a reservation. Strate does,

however, harmonize Montana with other cases addressing tribal civil authority over

nonmembers. See Strate, 117 S. Ct. at 1409-14. 

 In Strate, Lyle Stockert, a non-Indian driver of a truck owned by A-1

Contractors, a non-Indian company, collided with the automobile of Gisela Fredericks,

a non-Indian widow of a deceased member of the Three Affiliated Tribes of the Fort

Berthold Indian Reservation. Id. at 1408. The collision occurred on a state highway

that crossed through reservation land. Fredericks filed a personal injury suit in tribal

court, and the tribal court concluded it had jurisdiction to adjudicate Fredericks’ claims.

Id.

Shortly thereafter, Stockert and A-1 Contractors filed suit in federal district court,

seeking a declaratory judgment that, as a matter of federal law, the tribal court lacked

jurisdiction to adjudicate the claims. Id. The district court concluded the tribal court

had civil jurisdiction over Fredericks’ claims against Stockert and A-1 Contractors, and

on cross-motions for summary judgment, it dismissed the suit. Id. at 1409. A divided

panel of the Court of Appeals for the Eighth Circuit affirmed. Id. Following a rehearing

en banc, and in an eight-to-four decision, the Eighth Circuit Court of Appeals reversed

the district court’s judgment, concluding that under Montana, the tribal court lacked

subject matter jurisdiction over the dispute. Id.

The United States Supreme Court affirmed the en banc decision. The Court

equated the state-held highway to non-Indian fee land and concluded the Montana rule

and its two exceptions governed the issue of jurisdiction. Id. at 1414. With respect to

Montana, the Court stated:
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Montana thus described a general rule that, absent a different

congressional direction, Indian tribes lack civil authority over the conduct

of nonmembers on non-Indian land within a reservation, subject to two

exceptions: The first exception relates to nonmembers who enter

consensual relationships with the tribe or its members; the second

concerns activity that directly affects the tribe’s political integrity,

economic security, health, or welfare.

Strate, 117 S. Ct. at 1409-10. The Court concluded neither Montana exception

conferred tribal court jurisdiction over Fredericks’ claims. Id. at 1415-16.

In finding that the claims arising from this particular automobile accident did not

fall within the reach of the tribal court’s adjudicatory power, the Court also discussed

the exhaustion requirement now well-established in the cases of National Farmers Union

Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985), and Iowa Mutual Ins. Co. v. LaPlante,

480 U.S. 9 (1987). Id. at 1410-13. In doing so, the Court made clear that the

exhaustion rule is based upon “prudential” policies and is not jurisdictional. Id. at 1413.

We need not further elaborate on the detailed analysis of the Strate case other than to

emphasize the Court’s admonition set forth in footnote 14 at page 1416, wherein the

Court observed:

When, as in this case, it is plain that no federal grant provides for tribal

governance of nonmembers’ conduct on land covered by Montana’s main

rule, it will be equally evident that tribal courts lack adjudicatory authority

over disputes arising from such conduct. As in criminal proceedings, state

or federal courts will be the only forums competent to adjudicate those

disputes. Therefore, when tribal-court jurisdiction over an action such as

this one is challenged in federal court, the otherwise applicable exhaustion

requirement, must give way, for it would serve no purpose other than

delay.

Strate, 117 S. Ct. at 1416 n.14 (citations omitted).
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Suffice it to say neither the tribal court nor the Estate claim that the first exception

of Montana, regarding nonmembers entering consensual relationships with a tribe or its

members, applies in this case. Thus, the primary issue the parties raise on appeal relates

to Montana’s second exception, namely that the activity engaged in by the nonmember

Breweries “directly affects the tribe’s political integrity, economic security, health, or

welfare.” Strate, 117 S. Ct. at 1410. As we have noted, however, we deem this issue

misleading. 

It is a fundamental fact in the present case that the Breweries do not manufacture,

sell, or distribute Crazy Horse Malt Liquor on the Reservation. The tribal court asserts

that the Breweries do engage in the sale of other beverages, including some alcoholic

beverages, on the Reservation. We find, as did the district court, that this argument is

irrelevant. This is not the activity for which complaint is made. The only grounds upon

which the Rosebud Sioux Supreme Court asserted subject matter jurisdiction was that

the Breweries’ conduct affects the health and welfare of the Tribe in that the Tribe

should be able to provide a forum for resolution of harm suffered by its members on the

Reservation. The district court rejected this reasoning and stated:

If providing a forum for its members would be a sufficient reason to confer

subject matter jurisdiction upon the tribal courts when a tribal member is

a party to a lawsuit, it follows that the tribal courts would always have

civil subject matter jurisdiction over non-Indians. There would have been

no reason for the discussion in Montana regarding the broad general rule

of no civil jurisdiction over non-Indians and the two narrow exceptions to

that general rule. Therefore, this Court does not agree that the second

Montana exception provides tribal civil subject matter jurisdiction over the

brewing companies in this case, under the present record.

J.A. at 388. We agree with this conclusion.
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On appeal, the tribal court also asserts that although Crazy Horse Malt Liquor

was not sold on the Rosebud Sioux Reservation, it was advertised outside the

Reservation and on the Internet (available to tribal members on the Reservation), and

therefore, it had a direct effect upon tribal members. We find this contention specious.

Advertising outside the Reservation and on the Internet does not fall within the rubric

of directly affecting the health and welfare of the Tribe. The Internet is analogous to the

use of the airwaves for national broadcasts over which the Tribe can claim no

proprietary interest, and it cannot be said to constitute non-Indian use of Indian land.

Following the admonition of the Supreme Court in Strate, we think it plain that

the Breweries’ conduct outside the Rosebud Sioux Reservation does not fall within the

Tribe’s inherent sovereign authority. We deem it clear the tribal court lacks

adjudicatory authority over disputes arising from such conduct. We emphasize that our

decision in this case does not turn upon the merits of the claims asserted by the Estate.

The Estate and other interested parties may assert these claims in federal district court.

Our holding relates solely to the adjudicatory authority of the tribal court. 

Under the circumstances, we see no need for further exhaustion. We therefore

vacate the order of remand for further exhaustion. In view of our holding that the tribal

court lacks adjudicatory authority, we also see no further need for the preliminary

injunction the district court issued. We are confident that all the parties will be

governed by the law of the case. We therefore order the preliminary injunction

dissolved.

For the foregoing reasons, the judgment of the district court is hereby vacated,

and the case is remanded to the district court with instructions that the district court

amend its judgment to hold that the Rosebud Sioux Tribal Court lacks adjudicatory
-17-

authority over the dispute arising from the Breweries’ use of the Crazy Horse name in

the manufacturing, sale and distribution of Crazy Horse Malt Liquor outside the

Rosebud Sioux Reservation.

IT IS SO ORDERED.

A true copy.

Attest:

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