Chapter 4 T HIS CHAPTER EXPLORES various possible means for extending tribal jurisdiction (power) over non-Indians who work for the tribe or who use tribal resources, such as game, fish, or timber. Requiring non-Indians to accept or acquiesce to tribal jurisdiction prior to working for the tribe or using tribal resources can protect the community from individuals who may cause harm. Tribes do not have criminal jurisdiction over non-Indians. In United States v. McBratney, the U.S. Supreme Court held that state jurisdiction took the place of federal jurisdiction over the murder of a white man by another white man on a Colorado Indian reservation. The rationale was that the tribe would not have any interest in such a crime. Post McBratney, the Court has made it clear that tribes do not have criminal jurisdiction over non-Indian who commit crimes in Indian Country. Tribes, however, may have civil jurisdiction over non-Indians even over non-Indian actions that occur on fee land under the so-called “Montana test,” that is, where the non-Indian either (1) enters into consensual relations with the tribe or its members (through commercial dealings, contracts, leases, or other arrangements) or (2) where the conduct threatens or has some direct effect on the political integrity, economic security, or the health or welfare of the tribe. Many tribes exercise this jurisdiction by enacting civil provisions that apply fine and seizure schemes to offenses that would otherwise be criminal in nature. Moreover, where the tribal court has jurisdiction over an Indian child, any non-Indian relative who wants to have an impact on what happens to the Indian child has an incentive to consent to tribal jurisdiction either formally or informally. It is important to note that the U. S. Supreme Court has repeatedly interpreted the “Montana test” very narrowly. The U. S. Supreme Court has rarely found that non-Indian actions meet the “Montana test” even in a civil context especially when the non-Indian action took place on fee land.
reserved or obtained by the Tribes and its people for their use by any treaty or law or in any other manner, except where such exercise of criminal jurisdiction is limited by federal or tribal law. An offense is committed partially within the Tulalip Reservation or within other Tribal lands as described above, if either the conduct which is an element of the offense or the result which is an element occurs within the exterior boundaries of the Tulalip Reservation or other Tribal lands. An offense based on an omission to perform a duty imposed by Tribal law is committed within the exterior boundaries of the Tulalip Reservation, regardless of the location of the defendant at the time of the omission. 2004 4 §4-01.050 Tribal Criminal Jurisdiction. The Tribal Court shall have criminal jurisdiction on the Reservation over: All tribal members; and All Indians in accordance with applicable Federal laws. The Tribal Court shall have criminal jurisdiction outside the Reservation over all tribal members with respect to the exercise of fishing, hunting and gathering rights on all usual and accustomed fishing grounds and stations of the Tribe, on all open and unclaimed lands reserved by treaty for hunting or gathering and on such other lands and waters as are necessary for access to these fishing, hunting and gathering sites. [History] Ord. 184 (9/30/03); Ord. 154 (6/4/02); Ord. 75 (4/2/91).