Native American Sovereignty Meets a Bend in the Road

The path the Supreme Court has forged with regard to tribal sovereignty has meandered through a variety of landscapes with little predictability. The Court finally established a guiding light for determining tribal jurisdiction in the 1980s through the seminal case, Montana v. United States,1 but since that time has taken several turns in the road. Most recently, in Nevada v. Hicks,2 the Court ventured away from the security of known paths by redefining and limiting the scope of tribal sovereignty in two ways. First, the Court's recharacterization of the traditional approach for determining tribal authority over nonmembers outlined in Montana resulted in a constriction of the Court's precedent regarding the role of land ownership and Montana's exceptions. Second, the Court's limit of tribal authority to try federal 1983 claims suggests that tribes may be limited in adjudicating certain federal claims in their own courts. This Note begins with a discussion of Native American judicial authority, addressing both tribal jurisdiction over nonmembers and tribal jurisdiction over federal claims. Part II briefly explains the factual and procedural background of the Nevada v. Hicks decision. Part III analyzes the Court's application of the Montana test and the exhaustion doctrine to determine the tribe's jurisdiction in Nevada v. Hicks. Part IV critiques this analysis, while Part V suggests possible routes that the Court may take in the future, especially with respect to the importance of land status under Montana. Part VI concludes that the Court's constriction of these tests leaves tribes with little recourse against nonmember civil offenders. I. THE FEDERAL LAW FRAMEWORK OF TRIBAL JURISDICTION Since 1978, Native American tribes have had limited jurisdiction over those who do not belong to their tribes.3 This section estabIMAGE FORMULA4 lishes a foundation for understanding tribal jurisdiction over nonmembers by first discussing tribal jurisdiction over acts of nonmembers and then evaluating general tribal jurisdiction over federal claims. A. Tribal Authority over Nonmembers "Indian tribes have long been held to have 'attributes of sovereignty over both their members and their territory.'"4 Although the relationship between tribes and the federal government has divested tribes of certain aspects of their inherent sovereignty,5 and the Court has firmly established Congress' plenary power over Indian country,6 IMAGE FORMULA7 the Court has nonetheless emphasized that tribes retain many rights of internal self-government, including "the power to punish tribal offenders,. . . to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members."7 Despite the fact that Indian tribes retain authority over internal aspects of tribal government because of their inherent sovereignty, Congress and the Court have abrogated the tribes' authority over nonmembers.8 This section will focus on tribal jurisdiction over civil acts by nonmembers. It will first analyze tribal regulatory authority over nonmembers under the test established in Montana v. United States,9 highlighting two exceptions to this test. It will next look at tribal adjudicatory jurisdiction. 1. Tribal regulatory authority over nonmembers "Tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty."" The Court has firmly established that tribes have no jurisdiction over nonmember defendants involved in criminal actions in Indian country," but the IMAGE FORMULA10 Court has not created a bright-line rule for tribal jurisdiction over nonmember defendants in civil actions. Instead, the Court has created a general common law framework for evaluating tribal jurisdiction in civil proceedings. …