OCTOBER TERM, 2000
Syllabus
NEVADA ET AL.
v. HICKS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 99-1994. Argued March 21, 200l-Decided June 25, 2001
Respondent Hicks is a member of the Fallon Paiute-Shoshone
Tribes of western Nevada and lives on the Tribes' reservation.
After petitioner state game wardens executed state-court and
tribal-court search warrants to search Hicks's home for evidence of
an off-reservation crime, he filed suit in the Tribal Court
against,
inter alios, the wardens in their individual
capacities and petitioner Nevada, alleging trespass, abuse of
process, and violation of constitutional rights remediable under 42
U. S. C. § 1983. The Tribal Court held that it had jurisdiction
over the tribal tort and federal civil rights claims, and the
Tribal Appeals Court affirmed. Petitioners then sought, in Federal
District Court, a declaratory judgment that the Tribal Court lacked
jurisdiction over the claims. The District Court granted
respondents summary judgment on that issue and held that the
wardens would have to exhaust their qualified immunity claims in
the Tribal Court. In affirming, the Ninth Circuit concluded that
the fact that Hicks's home is on tribe-owned reservation land is
sufficient to support tribal jurisdiction over civil claims against
nonmembers arising from their activities on that land.
Held:
1. The Tribal Court did not have jurisdiction to adjudicate the
wardens' alleged tortious conduct in executing a search warrant for
an offreservation crime. Pp. 357-366.
(a) As to nonmembers, a tribal court's inherent adjudicatory
authority is at most as broad as the tribe's regulatory authority.
Strate v.
A-l Contractors,
520 U. S. 438, 453.
Pp.357-358.
(b) The rule that, where nonmembers are concerned, "the exercise
of tribal power beyond what is necessary to protect tribal
selfgovernment or to control internal relations ... cannot survive
without express congressional delegation,"
Montana v.
United States, 450 U. S. 544,564,
applies to both Indian and non-Indian land. The land's ownership
status is only one factor to be considered, and while that factor
may sometimes be dispositive, tribal ownership is not alone enough
to support regulatory jurisdiction over nonmembers. Pp.
358-360.
(c) Tribal authority to regulate state officers in executing
process related to the off-reservation violation of state laws is
not essential to tribal self-government or internal relations. The
State's interest in
354
Syllabus
executing process is considerable, and it no more impairs the
Tribes' self-government than federal enforcement of federal law
impairs state government. The State's interest is not diminished
because this suit is against officials in their individual
capacities. Pp. 360-365.
(d) Congress has not stripped the States of their inherent
jurisdiction on reservations with regard to off-reservation
violations of state law. The federal statutory scheme neither
prescribes nor suggests that state officers cannot enter a
reservation to investigate or prosecute such violations. Pp.
365-366.
2. The Tribal Court had no jurisdiction over the § 1983
claims.
Tribal courts are not courts of "general jurisdiction." The
historical and constitutional assumption of concurrent state-court
jurisdiction over cases involving federal statutes is missing with
respect to tribal courts, and their inherent adjudicative
jurisdiction over nonmembers is at most only as broad as their
legislative jurisdiction. Congress has not purported to grant
tribal courts jurisdiction over § 1983 claims, and such
jurisdiction would create serious anomalies under 28 U. S. C. §
1441. Pp. 366-369.
3. Petitioners were not required to exhaust their claims in the
Tribal Court before bringing them in the Federal District Court.
Because the rule that tribal courts lack jurisdiction over state
officials for causes of action relating to their performance of
official duties is clear, adherence to the tribal exhaustion
requirement would serve no purpose other than delay and is
therefore unnecessary. P. 369.
4. Various arguments to the contrary lack merit. Pp.
370-375.
196 F.3d
1020, reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ.,
joined. SouTER, J., filed a concurring opinion, in which KENNEDY
and THOMAS, JJ., joined,
post, p. 375. GINSBURG, J., filed a
concurring opinion,
post, p. 386. O'CONNOR, J., filed an
opinion concurring in part and concurring in the judgment, in which
STEVENS and BREYER, JJ., joined,
post, p. 387. STEVENS, J.,
filed an opinion concurring in the judgment, in which BREYER, J.,
joined,
post, p. 401.
C.
Wayne Howle, Senior Deputy Attorney General of Nevada,
argued the cause for petitioners. With him on the briefs were
Frankie Sue Del Papa, Attorney General,
Paul G.
Taggart, Deputy Attorney General, and
Jeffrey S.
Sutton.
S.
James Anaya argued the cause for respondents and filed
a brief for respondent Hicks.
Kim Jerome Gottschalk
355
and
Melody McCoy filed a brief for respondents Tribal
Court in and for the Fallon Paiute-Shoshone Tribes et al.
Barbara McDowell argued the cause for the United States as
amicus curiae urging affirmance. With her on the brief were former
Solicitor General Waxman, Assistant Attorney General Schiffer,
Deputy Solicitor General Kneedler, David C. Shilton, and William B.
Lazarus.*
JUSTICE SCALIA delivered the opinion of the Court.
This case presents the question whether a tribal court may
assert jurisdiction over civil claims against state officials who
entered tribal land to execute a search warrant against a tribe
member suspected of having violated state law outside the
reservation.
I
Respondent Hicks 1 is one of about 900 members of the Fallon
Paiute-Shoshone Tribes of western Nevada. He re-
* A brief of
amici curiae urging reversal was filed for
the State of Montana et al. by
Joseph P. Mazurek, Attorney
General of Montana,
Clay R. Smith, Solicitor, and
Harley
R. Harris, Assistant Attorney General, joined by the Attorneys
General for their respective States as follows:
Bill Pryor
of Alabama,
Janet Napolitano of Arizona,
Richard
Blumenthal of Connecticut,
Robert A. Butterworth of
Florida,
Carla J.
Stovall of Kansas,
Jennifer M.
Granholm of Michigan,
Mike Moore of Mississippi,
Heidi Heitkamp of North Dakota,
W A. Drew Edmondson
of Oklahoma,
Hardy Myers of Oregon,
Sheldon
Whitehouse of Rhode Island,
Charles M. Condon of South
Carolina,
Mark Barnett of South Dakota,
John Cornyn
of Texas,
Jan Graham of Utah,
James E. Doyle of
Wisconsin, and
Gay Woodhouse of Wyoming.
Briefs of
amici curiae urging affirmance were filed for
the Coalition for Local Sovereignty by
Kenneth B. Clark; for
the Confederated Tribes of the Colville Reservation et al. by
William R. Perry; for the Pyramid Lake Paiute Tribe of
Nevada et al. by
John Fredericks III; and for the
Thlopthlocco Tribal Town et al. by
D. Michael McBride III
and
Steven K. Balman.
1 Hereinafter, Hicks will be referred to as "respondent." The
Tribal Court and Judge are also respondents, however, and are
included when the term "respondents" is used.
356
sides on the Tribes' reservation of approximately 8,000 acres,
established by federal statute in 1908, ch. 53, 35 Stat. 85. In
1990 Hicks came under suspicion of having killed, off the
reservation, a California bighorn sheep, a gross misdemeanor under
Nevada law, see Nev. Rev. Stat. § 501.376 (1999). A state game
warden obtained from state court a search warrant "SUBJECT TO
OBTAINING APPROVAL FROM THE FALLON TRIBAL COURT IN AND FOR THE
FALLON PAIUTE-SHOSHONE TRIBES." According to the issuing judge,
this tribal-court authorization was necessary because "[t]his Court
has no jurisdiction on the Fallon Paiute-Shoshone Indian
Reservation." App. G to Pet. for Cert. 1. A search warrant was
obtained from the tribal court, and the warden, accompanied by a
tribal police officer, searched respondent's yard, uncovering only
the head of a Rocky Mountain bighorn, a different (and unprotected)
species of sheep.
Approximately one year later, a tribal police officer reported
to the warden that he had observed two mounted bighorn sheep heads
in respondent's home. The warden again obtained a search warrant
from state court; though this warrant did not explicitly require
permission from the Tribes, see App. F to Pet. for Cert. 2, a
tribal-court warrant was nonetheless secured, and respondent's home
was again (unsuccessfully) searched by three wardens and additional
tribal officers.
Respondent, claiming that his sheep heads had been damaged, and
that the second search exceeded the bounds of the warrant, brought
suit against the Tribal Judge, the tribal officers, the state
wardens in their individual and official capacities, and the State
of Nevada in the Tribal Court in and for the Fallon Paiute-Shoshone
Tribes. (His claims against all defendants except the state wardens
and the State of Nevada were dismissed by directed verdict and are
not at issue here.) Respondent's causes of action included trespass
to land and chattels, abuse of process, and violation of civil
357
rights-specifically, denial of equal protection, denial of due
process, and unreasonable search and seizure, each remediable under
Rev. Stat. § 1979, 42 U. S. C. § 1983. See App. 8-21, 25-29.
Respondent later voluntarily dismissed his case against the State
and against the state officials in their official capacities,
leaving only his suit against those officials in their individual
capacities. See id., at 32-35.
The Tribal Court held that it had jurisdiction over the claims,
a holding affirmed by the Tribal Appeals Court. The state officials
and Nevada then filed an action in Federal District Court seeking a
declaratory judgment that the Tribal Court lacked jurisdiction. The
District Court granted summary judgment to respondent on the issue
of jurisdiction, and also held that the state officials would have
to exhaust any claims of qualified immunity in the tribal court.
The Ninth Circuit affirmed, concluding that the fact that
respondent's home is located on tribe-owned land within the
reservation is sufficient to support tribal jurisdiction over civil
claims against nonmembers arising from their activities on that
land.
196 F.3d
1020 (1999). We granted certiorari, 531 U. S. 923 (2000).
II
In this case, which involves claims brought under both tribal
and federal law, it is necessary to determine, as to the former,
whether the Tribal Court in and for the Fallon Paiute-Shoshone
Tribes has jurisdiction to adjudicate the alleged tortious conduct
of state wardens executing a search warrant for evidence of an
off-reservation crime; and, as to the latter, whether the Tribal
Court has jurisdiction over claims brought under 42 U. S. C. §
1983. We address the former question first.
A
The principle of Indian law central to this aspect of the case
is our holding in
Strate v.
A-l Contractors, 520 U. S. 438, 453
(1997): "As to nonmembers ... a tribe's adjudicative
358
jurisdiction does not exceed its legislative jurisdiction .... "
That formulation leaves open the question whether a tribe's
adjudicative jurisdiction over nonmember defendants
equals
its legislative jurisdiction.2 We will not have to answer that open
question if we determine that the Tribes in any event lack
legislative jurisdiction in this case. We first inquire, therefore,
whether the Fallon Paiute-Shoshone Tribeseither as an exercise of
their inherent sovereignty, or under grant of federal authority-can
regulate state wardens executing a search warrant for evidence of
an off-reservation crime.
Indian tribes' regulatory authority over nonmembers is governed
by the principles set forth in
Montana v.
United
States, 450 U. S.
544 (1981), which we have called the "pathmarking case" on the
subject,
Strate, supra, at 445. In deciding whether the Crow
Tribe could regulate hunting and fishing by nonmembers on land held
in fee simple by nonmembers,
Montana observed that, under
our decision in
Oliphant v.
Suquamish Tribe, 435 U. S. 191 (1978),
tribes lack criminal jurisdiction over nonmembers. Although, it
continued,
"Oliphant only determined inherent tribal
authority in criminal matters, the principles on which it relied
support the general proposition that the inherent sovereign
2 In
National Farmers Union Ins. Coso v.
Crow
Tribe, 471 U. S.
845, 855-856 (1985), we avoided the question whether tribes may
generally adjudicate against nonmembers claims arising from
on-reservation transactions, and we have never held that a tribal
court had jurisdiction over a nonmember defendant. Typically, our
cases have involved claims brought against tribal defendants. See,
e. g.,
Williams v.
Lee, 358 U. S. 217 (1959). In
Strate v.
A-l Contractors,
520 U. S. 438, 453
(1997), however, we assumed that "where tribes possess authority to
regulate the activities of nonmembers, civil jurisdiction over
disputes arising out of such activities presumably lies in the
tribal courts," without distinguishing between nonmember plaintiffs
and nonmember defendants. See also
Iowa Mut. Ins. Co. v.
LaPlante, 480 U.
S. 9, 18 (1987). Our holding in this case is limited to the
question of tribal-court jurisdiction over state officers enforcing
state law. We leave open the question of tribal-court jurisdiction
over nonmember defendants in general.
359
powers of an Indian tribe do not extend to the activities of
nonmembers of the tribe." 450 U. S., at 565 (footnote omitted).
Where nonmembers are concerned, the "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., at 564 (emphasis
added).3
Both
Montana and
Strate rejected tribal authority
to regulate nonmembers' activities on land over which the tribe
could not "assert a landowner's right to occupy and exclude,"
Strate, supra, at 456;
Montana, supra, at 557, 564.
Respondents and the United States argue that since Hicks's home and
yard
are on tribe-owned land within the reservation, the
Tribe may make its exercise of regulatory authority over nonmembers
a condition of nonmembers' entry. Not necessarily. While it is
certainly true that the non-Indian ownership status of the land was
central to the analysis in both
Montana and
Strate,
the reason that was so was
not that Indian ownership
suspends the "general proposition" derived from
Oliphant
that "the inherent sovereign powers of an Indian tribe do not
extend to the activities of nonmembers of the tribe" except to the
extent "necessary to protect tribal self-government or to control
internal relations." 450 U. S., at 564-565.
Oliphant itself
drew no distinctions based on the status of land. And
Montana, after announcing the general rule of no
jurisdiction over non-
3
Montana recognized an exception to this rule for tribal
regulation of "the activities of nonmembers who enter consensual
relationships with the tribe or its members, through commercial
dealing, contracts, leases, or other arrangements." 450 U. S., at
565. Though the wardens in this case "consensually" obtained a
warrant from the Tribal Court before searching respondent's home
and yard, we do not think this qualifies as an "other arrangement"
within the meaning of this passage. Read in context, an "other
arrangement" is clearly another
private consensual
relationship, from which the official actions at issue in this case
are far removed.
360
members, cautioned that "[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-clearly implying that the
general rule of
Montana applies to both Indian and
non-Indian land. The ownership status ofland, in other words, is
only one factor to consider in determining whether regulation of
the activities of nonmembers is "necessary to protect tribal
self-government or to control internal relations." It may sometimes
be a dispositive factor. Hitherto, the absence of tribal ownership
has been virtually conclusive of the absence of tribal civil
jurisdiction; with one minor exception, we have never upheld under
Montana the extension of tribal civil authority over
nonmembers on non-Indian land. Compare,
e. g., Merrion v.
Jicarilla Apache Tribe, 455 U. S. 130, 137, 142
(1982) (tribe has taxing authority over tribal lands leased by
nonmembers), with
Atkinson Trading Co. v.
Shirley,
532 U. S. 645,
659 (2001) (tribe has no taxing authority over nonmembers'
activities on land held by nonmembers in fee); but see
Brendale v.
Confederated Tribes and Bands of Yakima
Nation, 492 U. S.
408, 443-444, 458-459 (1989) (opinions of STEVENS, J., and
Blackmun, J.) (tribe can impose zoning regulation on that 3.1% of
land within reservation area closed to public entry that was not
owned by the tribe). But the existence of tribal ownership is not
alone enough to support regulatory jurisdiction over
nonmembers.
We proceed to consider, successively, the following questions:
whether regulatory jurisdiction over state officers in the present
context is "necessary to protect tribal selfgovernment or to
control internal relations," and, if not, whether such regulatory
jurisdiction has been congressionally conferred.
B
In
Strate, we explained that what is necessary to protect
tribal self-government and control internal relations can be
understood by looking at the examples of tribal power to
361
which
Montana referred: tribes have authority "[to punish
tribal offenders,] to determine tribal membership, to regulate
domestic relations among members, and to prescribe rules of
inheritance for members," 520 U. S., at 459 (brackets in original),
quoting
Montana, supra, at 564. These examples show, we
said, that Indians have" 'the right ... to make their own laws and
be ruled by them,'" 520 U. S., at 459, quoting
Williams v.
Lee, 358 U. S.
217, 220 (1959). See also
Fisher v.
District Court of
Sixteenth Judicial Dist. of Mont., 424 U. S. 382, 386 (1976)
(per curiam) ("In litigation between Indians and non-Indians
arising out of conduct on an Indian reservation, resolution of
conflicts between the jurisdiction of state and tribal courts has
depended, absent a governing Act of Congress, on whether the state
action infringed on the right of reservation Indians to make their
own laws and be ruled by them" (internal quotation marks and
citation omitted)). Tribal assertion of regulatory authority over
nonmembers must be connected to that right of the Indians to make
their own laws and be governed by them. See
Merrion, supra,
at 137, 142 ("The power to tax is an essential attribute of Indian
sovereignty because it is a necessary instrument of
self-government," at least as to "tribal lands" on which the tribe
"has ... authority over a nonmember").
Our cases make clear that the Indians' right to make their own
laws and be governed by them does not exclude all state regulatory
authority on the reservation. State sovereignty does not end at a
reservation's border. Though tribes are often referred to as
"sovereign" entities, it was "long ago" that "the Court departed
from Chief Justice Marshall's view that 'the laws of [a State] can
have no force' within reservation boundaries.
Worcester v.
Georgia, 6 Pet. 515, 561
(1832)," White Mountain
Apache Tribe v.
Bracker, 448 U. S. 136, 141
(1980).4 "Ordinarily," it is now clear, "an Indian
4 Our holding in
Worcester must be considered in light of
the fact that "[t]he 1828 treaty with the Cherokee Nation ...
guaranteed the Indians their lands would never be subjected to the
jurisdiction of any State or
362
reservation is considered part of the territory of the State."
U. S. Dept. of Interior, Federal Indian Law 510, and n.1 (1958),
citing
Utah &
Northern R. Co. v.
Fisher,
116 U. S. 28
(1885); see also
Organized Village of Kake v.
Egan,
369 U. S. 60, 72
(1962).
That is not to say that States may exert the same degree of
regulatory authority within a reservation as they do without. To
the contrary, the principle that Indians have the right to make
their own laws and be governed by them requires "an accommodation
between the interests of the Tribes and the Federal Government, on
the one hand, and those of the State, on the other."
Washington v.
Confederated Tribes of Colville
Reservation, 447
U. S. 134, 156 (1980); see also id., at 181 (opinion of
REHNQUIST, J.). "When onreservation conduct involving only Indians
is at issue, state law is generally inapplicable, for the State's
regulatory interest is likely to be minimal and the federal
interest in encouraging tribal self-government is at its
strongest."
Bracker, supra, at 144. When, however, state
interests outside the reservation are implicated, States may
regulate the activities even of tribe members on tribal land, as
exemplified by our decision in
Confederated Tribes. In that
case, Indians were selling cigarettes on their reservation to
nonmembers from off reservation, without collecting the state
cigarette tax. We held that the State could require the Tribes to
collect the tax from nonmembers, and could "impose at least
'minimal' burdens on the Indian retailer to aid in enforcing and
collecting the tax," 447 U. S., at 151. It is also well established
in our precedent that States have criminal jurisdiction over
reservation Indians for crimes committed (as was the alleged
poaching in this case) off the reservation. See
Mescalero Apache
Tribe v.
Jones, 411 U. S. 145, 148149
(1973).
Territory."
Organized Village of Kake v.
Egan,
369 U. S. 60, 71
(1962); cf.
Williams v.
Lee, 358 U. S., at 221-222
(comparing Navajo treaty to the Cherokee treaty in
Worcester).
363
While it is not entirely clear from our precedent whether the
last mentioned authority entails the corollary right to enter a
reservation (including Indian-fee lands) for enforcement purposes,
several of our opinions point in that direction. In
Confederated
Tribes, we explicitly reserved the question whether state
officials could seize cigarettes held for sale to nonmembers in
order to recover the taxes due. See 447 U. S., at 162. In
Utah &
Northern R. Co., however, we observed that
"[i]t has ... been held that process of [state] courts may run into
an Indian reservation of this kind, where the subject-matter or
controversy is otherwise within their cognizance," 116 U. S., at
31.5 Shortly thereafter, we considered, in
United States v.
Kagama, 118 U.
S. 375 (1886), whether Congress could enact a law giving
federal courts jurisdiction over various common-law, violent crimes
committed by Indians on a reservation within a State. We expressed
skepticism that the Indian Commerce Clause could justify this
assertion of authority in derogation of state jurisdiction, but
ultimately accepted the argument that the law
"does not interfere with the process of the State courts within
the reservation, nor with the operation of State laws upon white
people found there. Its effect is confined to the acts of an Indian
of some tribe, of a criminal character, committed within the limits
of the reservation.
"It seems to us that this is within the competency of
Congress." Id., at 383.
The Court's references to "process" in
Utah &
Northern R. Co. and
Kagama, and the Court's concern
in
Kagama over possible federal encroachment on state
prerogatives, sug-
5 Though
Utah &
Northern R. Co. did not state
what it meant by a "reservation of this kind," the context makes
clear that it meant a reservation not excluded from the territory
of a State by treaty. See,
e. g.,
Harkness v.
Hyde, 98 U. S.
476, 478 (1879);
The Kansas Indians, 5 Wall. 737,739-741
(1867).
364
gest state authority to issue search warrants in cases such as
the one before us. ("Process" is defined as "any means used by a
court to acquire or exercise its jurisdiction over a person or over
specific property," Black's Law Dictionary 1084 (5th ed. 1979), and
is equated in criminal cases with a warrant,
id., at 1085.)
It is noteworthy that
Kagama recognized the right of state
laws to "operat[e] ... upon [nonIndians] found" within a
reservation, but did not similarly limit to non-Indians or the
property of non-Indians the scope of the
process of state
courts. This makes perfect sense, since, as we explained in the
context of federal enclaves, the reservation of state authority to
serve process is necessary to "prevent [such areas] from becoming
an asylum for fugitives from justice."
Fort Leavenworth R.
Co. v.
Lowe, 114 U. S. 525, 533
(1885).6
We conclude today, in accordance with these prior statements,
that tribal authority to regulate state officers in executing
process related to the violation, off reservation, of state laws is
not essential to tribal self-government or internal relations-to
"the right to make laws and be ruled by them." The State's interest
in execution of process is considerable, and even when it relates
to Indian-fee lands it no more impairs the tribe's self-government
than federal enforcement of federal law impairs state government.
Respondents argue that, even conceding the State's general interest
in enforcing its off-reservation poaching law on the reservation,
Nevada's interest in
this suit is minimal, because it is a
suit against state officials in their
individual
6 That this risk is not purely hypothetical is demonstrated by
Arizona ex rel. Merrill v.
Turtle, 413 F.2d
683 (CA9 1969), a case in which the Navajo Tribal Court
refused to extradite a member to Oklahoma because tribal law
forbade extradition except to three neighboring States. The Ninth
Circuit held that Arizona (where the reservation was located) could
not enter the reservation to seize the suspect for extradition
since (among other reasons) this would interfere with tribal
self-government, id., at 685-686.
365
capacities. We think, however, that the distinction between
individual and official capacity suits is irrelevant. To paraphrase
our opinion in
Tennessee v.
Davis, 100 U. S. 257, 263
(1880), which upheld a federal statute permitting federal officers
to remove to federal court state criminal proceedings brought
against them for their official actions, a State "can act only
through its officers and agents," and if a tribe can "affix
penalties to acts done under the immediate direction of the [state]
government, and in obedience to its laws," "the operations of the
[state] government may at any time be arrested at the will of the
[tribe]." Cf.
Anderson v.
Creighton, 483 U. S. 635, 638 (1987)
("[P]ermitting damages suits against government officials can
entail substantial social costs, including the risk that fear of
personal monetary liability and harassing litigation will unduly
inhibit officials in the discharge of their duties").
C
The States' inherent jurisdiction on reservations can of course
be stripped by Congress, see
Draper v.
United States,
164 U. S. 240,
242-243 (1896). But with regard to the jurisdiction at issue here
that has not occurred. The Government's assertion that "[a]s a
general matter, although state officials have jurisdiction to
investigate and prosecute crimes on a reservation that exclusively
involve non-Indians, ... they do not have jurisdiction with respect
to crimes involving Indian perpetrators or Indian victims," Brief
for United States as
Amicus Curiae 12-13, n.7, is
misleading. The statutes upon which it relies, see id., at 18-19,
show that the last half of the statement, like the first, is
limited to "crimes
on a reservation." Sections 1152 and 1153
of Title 18, which give United States and tribal criminal law
generally exclusive application, apply only to crimes committed
in Indian country; Public Law 280, codified at 18 U. S. C. §
1162, which permits some state jurisdiction as an exception to this
rule, is similarly limited. And 25 U. S. C.
366
§ 2804, which permits federal-state agreements enabling state
law enforcement agents to act on reservations, applies only to
deputizing them for the enforcement of federal or tribal criminal
law. Nothing in the federal statutory scheme prescribes, or even
remotely suggests, that state officers cannot enter a reservation
(including Indian-fee land) to investigate or prosecute violations
of state law occurring off the reservation. To the contrary, 25 U.
S. C. § 2806 affirms that "the provisions of this chapter alter
neither ... the law enforcement, investigative, or judicial
authority of any . State, or political subdivision or agency
thereof .... "
III
We turn next to the contention of respondent and the Government
that the tribal court, as a court of general jurisdiction, has
authority to entertain federal claims under § 1983.7 It is
certainly true that state courts of "general jurisdiction" can
adjudicate cases invoking federal statutes, such as § 1983, absent
congressional specification to the contrary. "Under [our] system of
dual sovereignty, we have consistently held that state courts have
inherent authority, and are thus presumptively competent, to
adjudicate claims arising under the laws of the United States,"
Tafflin v.
Levitt, 493 U. S. 455, 458
(1990). That this would be the case was assumed by the Framers, see
The Federalist No. 82, pp. 492-493 (C. Rossiter ed. 1961). Indeed,
that state courts could enforce federal law is presumed by Article
III of the
7 JUSTICE STEVENS questions why it is necessary to consider
tribalcourt jurisdiction over § 1983 claims, since we have already
determined that "tribal courts lack ... jurisdiction over 'state
wardens executing a search warrant for evidence of an
off-reservation crime,'"
post, at 402, n. 1 (opinion
concurring in judgment). It is because the latter determination is
based upon
Strate's holding that tribal-court jurisdiction
does not exceed tribal regulatory jurisdiction; and because that
holding contained a significant qualifier: "[a]bsent congressional
direction enlarging tribal-court jurisdiction," 520 U. S., at 453.
We conclude (as we must) that § 1983 is not such an
enlargement.
367
Constitution, which leaves to Congress the decision whether to
create lower federal courts at all. This historical and
constitutional assumption of concurrent state-court jurisdiction
over federal-law cases is completely missing with respect to tribal
courts.
Respondents' contention that tribal courts are courts of
"general jurisdiction" is also quite wrong. A state court's
jurisdiction is general, in that it "lays hold of all subjects of
litigation between parties within its jurisdiction, though the
causes of dispute are relative to the laws of the most distant part
of the globe."
Id., at 493. Tribal courts, it should be
clear, cannot be courts of general jurisdiction in this sense, for
a tribe's inherent adjudicative jurisdiction over nonmembers is at
most only as broad as its legislative jurisdiction. See
supra, at 357-359.8 It is true that some statutes proclaim
tribal-court jurisdiction over certain questions of federal law.
See,
e. g., 25 U. S. C. § 1911(a) (authority to adjudicate
child custody disputes under the Indian Child Welfare Act of 1978);
12 U. S. C. § 1715z-13(g)(5) (jurisdiction over mortgage
foreclosure actions brought by the Secretary of Housing and Urban
Development against reserva-
8 JUSTICE STEVENS argues that "[a]bsent federal law to the
contrary, the question whether tribal courts are courts of general
jurisdiction is fundamentally one of tribal law."
Post, at
402 (emphasis deleted). The point of our earlier discussion is that
Strate is "federal law to the contrary." JUSTICE STEVENS
thinks
Strate cannot fill that role, because it "merely
concerned the circumstances under which tribal courts can exert
jurisdiction over claims against nonmembers,"
post, at 403,
n. 3. But
Strate's limitation on jurisdiction over
nonmembers pertains to subjectmatter, rather than merely personal,
jurisdiction, since it turns upon whether the actions at issue in
the litigation are regulable by the tribe. One can of course say
that even courts of limited subject-matter jurisdiction have
general jurisdiction over those subjects that they
can
adjudicate (in the present case, jurisdiction over claims
pertaining to activities by nonmembers that can be regulated)-but
that makes the concept of general jurisdiction meaningless, and is
assuredly not the criterion that would determine whether these
courts received authority to adjudicate § 1983 actions.
368
tion homeowners). But no provision in federal law provides for
tribal-court jurisdiction over § 1983 actions.
Furthermore, tribal-court jurisdiction would create serious
anomalies, as the Government recognizes, because the general
federal-question removal statute refers only to removal from
state court, see 28 U. S. C. § 1441. Were § 1983 claims
cognizable in tribal court, defendants would inexplicably lack the
right available to state-court § 1983 defendants to seek a federal
forum. The Government thinks the omISSIOn of reference to tribal
courts in § 1441 unproblematic. Since, it argues, "[i]t is doubtful
... that Congress intended to deny tribal court defendants the
right given state court defendants to elect a federal forum for the
adjudication of causes of action under federal law," we should feel
free to create that right by permitting the tribalcourt defendant
to obtain a federal-court injunction against the action,
effectively forcing it to be refiled in federal court. Brief for
United States as
Amicus Curiae 25-26. The sole support for
devising this extraordinary remedy is
El Paso Natural Gas
Co. v.
Neztsosie, 526 U. S. 473 (1999),
where we approved a similar procedure with regard to claims under
the Price-Anderson Act brought in tribal court. In
Neztsosie, however, the claims were not initially federal
claims, but Navajo tort claims that the Price-Anderson Act provided
"shall be deemed to be ... action[s] arising under" 42 U. S. C. §
2210; there was little doubt that the tribal court had jurisdiction
over such tort claims, see 526 U. S., at 482, n. 4. And for the
propriety of the injunction in
Neztsosie, we relied not on §
1441, but on the removal provision of the Price-Anderson Act, 42 U.
S. C. § 2210(n)(2). Although, like § 1441, that provision referred
only to removal from state courts, in light of the Act's detailed
and distinctive provisions for the handling of "nuclear incident"
cases in federal court, see 526 U. S., at 486, we thought it clear
Congress envisioned the defendant's ability to get into federal
court in all in-
369
stances. Not only are there missing here any distinctive
federal-court procedures, but in order even to
confront the
question whether an unspecified removal power exists, we must first
attribute to tribal courts jurisdiction that is not apparent.
Surely the simpler way to avoid the removal problem is to conclude
(as other indications suggest anyway) that tribal courts cannot
entertain § 1983 suits.
IV
The last question before us is whether petitioners were required
to exhaust their jurisdictional claims in Tribal Court before
bringing them in Federal District Court. See
National Farmers
Union Ins. Coso v.
Crow Tribe, 471 U. S. 845, 856-857
(1985). In
National Farmers Union we recognized exceptions
to the exhaustion requirement, where "an assertion of tribal
jurisdiction is motivated by a desire to harass or is conducted in
bad faith, ... or where the action is patently violative of express
jurisdictional prohibitions, or where exhaustion would be futile
because of the lack of an adequate opportunity to challenge the
court's jurisdiction," id., at 856, n. 21 (internal quotation marks
omitted). None of these exceptions seems applicable to this case,
but we added a broader exception in
Strate: "[w]hen ... it
is plain that no federal grant provides for tribal governance of
nonmembers' conduct on land covered by
Montana's main rule,"
so the exhaustion requirement "would serve no purpose other than
delay." 520 U. S., at 459-460, and n.14. Though this exception too
is technically inapplicable, the reasoning behind it is not. Since
it is clear, as we have discussed, that tribal courts lack
jurisdiction over state officials for causes of action relating to
their performance of official duties, adherence to the tribal
exhaustion requirement in such cases "would serve no purpose other
than delay," and is therefore unnecessary.
370
v
Finally, a few words in response to the concurrence of JUSTICE
O'CONNOR, which is in large part a dissent from the views expressed
in this opinion.9
The principal point of the concurrence is that our reasoning
"gives only passing consideration to the fact that the state
officials' activities in this case occurred on land owned and
controlled by the Tribes,"
post, at 392. According to
JUSTICE O'CONNOR, "that factor is not prominent in the Court's
analysis,"
post, at 395. Even a cursory reading of our
opinion demonstrates that this is not so. To the contrary, we
acknowledge that tribal ownership is a factor in the
Montana
analysis, and a factor significant enough that it "may sometimes be
... dispositive,"
supra, at 360. We simply do not find it
dispositive in the present case, when weighed against the State's
interest in pursuing offreservation violations of its laws. See
supra, at 364 (concluding that "[t]he State's interest in
execution of process is considerable" enough to outweigh the tribal
interest in selfgovernment "even when it relates to Indian-fee
lands"). The concurrence is of course free to disagree with this
judgment; but to say that failure to give tribal ownership
deter-
9 JUSTICE O'CONNOR claims we have gone beyond the scope of the
questions presented in this case by determining whether the Tribes
could
regulate the state game warden's actions on tribal
land, because this is a case about tribal "civil
adjudicatory jurisdiction." See
post, at 397 (opinion
concurring in part and concurring in judgment). But the third
question presented, see Pet. for Writ of Cert. i, is as follows:
"Is the rule of [M
ontanaJ, creating a presumption against
tribal court jurisdiction over nonmembers, limited to cases in
which a cause of action against a nonmember arises on lands within
a reservation which are not controlled by the tribe?"
Montana dealt only with regulatory authority, and is tied to
adjudicatory authority by
Strate, which held that the latter
at best
tracks the former. As is made clear in the merits
briefing, petitioners' argument is that the Tribes lacked
adjudicatory authority
because they lacked regulatory
authority over the game wardens. See Brief for Petitioners
36-44.
371
minative effect "fails to consider adequately the Tribe's
inherent sovereign interests in activities on their land,"
post, at 401 (opinion of O'CONNOR, J.), is an
exaggeration.
The concurrence marshals no authority and scant reasoning to
support its judgment that tribal authority over state officers
pursuing, on tribe-owned land, off-reservation violations of state
law may be "necessary to protect tribal selfgovernment or to
control internal relations."
Montana, 450 U. S., at 564-565.
Self-government and
internal relations are not
directly at issue here, since the issue is whether the Tribes' law
will apply, not to their own members, but to a narrow category of
outsiders. And the concurrence does not try to explain how allowing
state officers to pursue off-reservation violation of state law
"threatens or has some direct effect on the political integrity,
the economic security, or the health or welfare of the tribe," id.,
at 566. That the actions of these state officers cannot threaten or
affect those interests is guaranteed by the limitations of federal
constitutional and statutory law to which the officers are fully
subject.
The concurrence exaggerates and distorts the consequences of our
conclusion,
supra, at 359, n. 3, that the term "other
arrangements" in a passage from
Montana referred to other
"private consensual" arrangements-so that it did not include
the state officials' obtaining of tribal warrants in the present
case. That conclusion is correct, as a fuller exposition of the
passage from
Montana makes clear:
"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." 450 U. S., at 565.
372
The Court (this is an opinion, bear in mind, not a statute)
obviously did not have in mind States or state officers acting in
their governmental capacity; it was referring to private
individuals who voluntarily submitted themselves to tribal
regulatory jurisdiction by the arrangements that they (or their
employers) entered into. This is confirmed by the fact that all
four of the cases in the immediately following citation involved
private commercial actors. See
Confederated Tribes, 447 U.
S., at 152 (nonmember purchasers of cigarettes from tribal outlet);
Williams v.
Lee, 358 U. S., at 217 (general store on
the Navajo reservation);
Morris v.
Hitchcock,
194 U. S. 384
(1904) (ranchers grazing livestock and horses on Indian lands
"under contracts with individual members of said tribes");
Buster v.
Wright, 135 F.9d
7, 950 (CA8 1905) (challenge to the "permit tax" charged by a
tribe to nonmembers for "the privilege ... of trading within the
borders").
The concurrence concludes from this brief footnote discussion
that we would invalidate express or implied cessions of regulatory
authority over nonmembers contained in statetribal cooperative
agreements, including those pertaining to mutual law enforcement
assistance, tax administration assistance, and child support and
paternity matters. See
post, at 393-394. This is a great
overreaching. The footnote does not assert that "a consensual
relationship [between a tribe and a State] could never exist,"
post, at 394 (opinion of O'CONNOR, J.). It merely asserts
that "other arrangements" in the passage from
Montana does
not include state officers' obtaining of an (unnecessary) tribal
warrant. Whether contractual relations between State and tribe can
expressly or impliedly confer tribal regulatory jurisdiction over
nonmembers-and whether such conferral can be effective to confer
adjudicative jurisdiction as well-are questions that may arise in
another case, but are not at issue here.
Another exaggeration is the concurrence's contention that we
"give nonmembers freedom to act with impunity on tribal
373
land based solely on their status as state law enforcement
officials,"
post, at 401 (opinion of O'CONNOR, J.). We do
not say state officers cannot be regulated; we say they cannot be
regulated in the performance of their law enforcement duties.
Action unrelated to that is potentially subject to tribal control
depending on the outcome of
Montana analysis. Moreover, even
where the issue is whether the officer has acted unlawfully in the
performance of his duties, the tribe and tribe members are of
course able to invoke the authority of the Federal Government and
federal courts (or the state government and state courts) to
vindicate constitutional or other federal- and state-law
rights.
We must comment upon the final paragraphs of Part II of the
concurrence's opinion-which bring on stage, in classic fashion, a
deus ex machina to extract, from the seemingly insoluble
difficulties that the prior writing has created, a happy ending.
The concurrence manages to have its cake and eat it too-to hand
over state law enforcement officers to the jurisdiction of tribal
courts and yet still assure that the officers' traditional immunity
(and hence the State's law enforcement interest) will be
protected-by simply announcing "that in order to protect government
officials, immunity claims should be considered in reviewing tribal
court jurisdiction."
Post, at 401 (opinion of O'CONNOR, J.).
What wonderful magic. Without so much as a citation (none is
available) the concurrence declares the qualified immunity inquiry
to be part of the jurisdictional inquiry, thus bringing it within
the ken of the federal court at the outset of the case. There are
two problems with this declaration. The first is that it is not
true. There is no authority whatever for the proposition that
absolute- and qualified-immunity defenses pertain to the court's
jurisdiction-much less to the tribe's
regulatory
jurisdiction, which is what is at issue here. (If they did pertain
to the court's jurisdiction, they would presumably be nonwaivable.
Cf.
Idaho v.
Coeur d'Alene Tribe of Idaho, 521 U. S. 261, 267
(1997).) And the second
374
problem is that without first determining whether the tribe has
regulatory jurisdiction, it is impossible to know which "immunity
defenses" the federal court is supposed to consider. The tribe's
law on this subject need not be the same as the State's; indeed,
the tribe may decide (as did the common law until relatively
recently) that there is no immunity defense whatever without a
warrant. See
California v.
Acevedo, 500 U. S. 565, 581 (1991)
(SCALIA, J., concurring in judgment). One wonders whether, deprived
of its
deus ex machina, the concurrence would not alter the
conclusion it reached in Part I of its opinion, and agree with us
that a proper balancing of state and tribal interests would give
the Tribes no jurisdiction over state officers pursuing
offreservation violations of state law.
Finally, it is worth observing that the concurrence's resolution
would, for the first time, hold a non-Indian subject to the
jurisdiction of a tribal court. The question (which we have
avoided) whether tribal regulatory and adjudicatory jurisdiction
are coextensive is simply answered by the concurrence in the
affirmative. As JUSTICE SOUTER'S separate opinion demonstrates, it
surely deserves more considered analysis.
***
Because the Fallon Paiute-Shoshone Tribes lacked legislative
authority to restrict, condition, or otherwise regulate the ability
of state officials to investigate off-reservation violations of
state law, they also lacked adjudicative authority to hear
respondent's claim that those officials violated tribal law in the
performance of their duties. Nor can the Tribes identify any
authority to adjudicate respondent's § 1983 claim. And since the
lack of authority is clear, there is no need to exhaust the
jurisdictional dispute in tribal court. State officials operating
on a reservation to investigate offreservation violations of state
law are properly held accountable for tortious conduct and civil
rights violations in either state or federal court, but not in
tribal court.
375
The judgment of the Court of Appeals is reversed, and the case
remanded for further proceedings consistent with our opinion.
It is so ordered.
JUSTICE SOUTER, with whom JUSTICE KENNEDY and JUSTICE THOMAS
join, concurring.
I agree that the Fallon Paiute-Shoshone Tribal Court had no
jurisdiction to entertain Hicks's claims against the petitioning
state officers here, and I join the Court's opinion. While I agree
with the Court's analysis as well as its conclusion, I would reach
that point by a different route. Like the Court, I take
Montana v.
United States, 450 U. S. 544 (1981), to
be the source of the first principle on tribal-court civil
jurisdiction, see
Atkinson Trading Co. v.
Shirley,
532 U. S. 645, 659 (2001) (SOUTER, J., concurring). But while
the Court gives emphasis to measuring tribal authority here in
light of the State's interest in executing its own legal process to
enforce state law governing off-reservation conduct,
ante,
at 360-365, I would go right to
Montana's rule that a
tribe's civil jurisdiction generally stops short of nonmember
defendants, 450 U. S., at 565, subject only to two exceptions, one
turning on "consensual relationships," the other on respect for
"the political integrity, the economic security, or the health or
welfare of the tribe," id., at 566.1
Montana applied this presumption against tribal
jurisdiction to nonmember conduct on fee land within a reservation;
I would also apply it where, as here, a nonmember acts on tribal or
trust land, and I would thus make it explicit that land status
within a reservation is not a primary juris-
1 The virtue of the Court's approach is in laying down a rule
that would be unquestionably applicable even if in a future case
the state officials issuing and executing state process happened to
be tribal members (which they apparently are not here).
376
dictional fact, but is relevant only insofar as it bears on the
application of one of
Montana's exceptions to a particular
case. Insofar as I rest my conclusion on the general jurisdictional
presumption, it follows for me that, although the holding in this
case is "limited to the question of tribal-court jurisdiction over
state officers enforcing state law,"
ante, at 358, n. 2, one
rule independently supporting that holding (that as a general
matter "the inherent sovereign powers of an Indian tribe do not
extend to the activities of nonmembers of the tribe,"
ante,
at 359) is not so confined.
I
Petitioners are certainly correct that "[t]ribal adjudicatory
jurisdiction over nonmembers is ... ill-defined," Reply Brief for
Petitioners 16, since this Court's own pronouncements on the issue
have pointed in seemingly opposite directions. Compare,
e. g.,
Santa Clara Pueblo v.
Martinez, 436 U. S. 49, 65 (1978)
("Tribal courts have repeatedly been recognized as appropriate
forums for the exclusive adjudication of disputes affecting
important personal and property interests of both Indians and
non-Indians"), and
United States v.
Mazurie, 419 U. S. 544, 557 (1975)
("Indian tribes are unique aggregations possessing attributes of
sovereignty over both their members and their territory"), with,
e. g., Oliphant v.
Suquamish Tribe, 435 U. S. 191, 209 (1978)
(" '[T]he limitation upon [tribes'] sovereignty amounts
to the
right of governing every person within their limits except
themselves'" (quoting
Fletcher v.
Peck, 6 Cranch
87, 147 (1810))).
Oliphant, however, clarified tribal
courts' criminal jurisdiction (in holding that they had none as to
non-Indians), and that decision is now seen as a significant step
on the way to
Montana, "the pathmarking case concerning
tribal civil authority over nonmembers,"
Strate v.
A-l Contractors,
520 U. S. 438, 445
(1997). The path marked best is the rule
377
that, at least as a presumptive matter, tribal courts lack civil
jurisdiction over nonmembers.2
To be sure, Montana does not of its own force resolve the
jurisdictional issue in this case. There, while recognizing that
the parties had "raised broad questions about the power of the
Tribe to regulate [the conduct of] non-Indians on the reservation,"
we noted that the issue before us was a "narrow one." 450 U. S., at
557. Specifically, we said, the question presented concerned only
the power of an Indian tribe to regulate the conduct of nonmembers
"on reservation land owned in fee by nonmembers of the Tribe."
Ibid. Here, it is undisputed, the acts complained of
occurred on reservation land "controlled by a tribe." Pet. for
Cert. 24. But although the distinction between tribal and fee land
(and, accordingly, between Montana and this case) surely exists, it
does not in my mind call for a different result. I see the legal
principles that animated our presumptive preclusion of tribal
jurisdiction in Montana as counseling a similar rule as to
regulatory, and hence adjudicatory, jurisdiction here.
In Montana, the Court began its discussion of tribes' "inherent
authority" by noting that "the Indian tribes have lost many of the
attributes of sovereignty." 450 U. S., at 563.
2The Court in
Montana v.
United States, 450 U. S. 544 (1981),
referred to "nonmembers" and "non-Indians" interchangeably. In
response to our decision in
Duro v.
Reina, 495 U. S. 676 (1990), in
which we extended the rule of
Oliphant to deny tribal courts
criminal jurisdiction over nonmember Indians (i.
e., Indians
who are members of other tribes), Congress passed a statute
expressly granting tribal courts such jurisdiction, see 105 Stat.
646, 25 U. S. C. § 1301(2). Because, here, we are concerned with
the extent of tribes' inherent authority, and not with the
jurisdiction statutorily conferred on them by Congress, the
relevant distinction, as we implicitly acknowledged in
Strate, is between members and nonmembers of the tribe. In
this case, nonmembership means freedom from tribal-court
jurisdiction, since none of the petitioning state officers is
identified as an Indian of any tribe.
378
In "distinguish[ing] between those inherent powers retained by
the tribe and those divested," id., at 564, the Court relied on a
portion of the opinion in
United States v.
Wheeler,
435 U. S. 313, 326 (1978), from which it quoted at length:
"'The areas in which ... implicit divestiture of sovereignty has
been held to have occurred are those involving the relations
between an Indian tribe and nonmembers of the tribe ....
"'These limitations rest on the fact that the dependent status
of Indian tribes within our territorial jurisdiction is necessarily
inconsistent with their freedom independently to determine their
external relations. But the powers of self-government,
including the power to prescribe and enforce internal criminal
laws, are of a different type. They involve only the relations
among members of a tribe. Thus, they are not such powers as
would necessarily be lost by virtue of a tribe's dependent
status.'" Montana, supra, at 564.
The emphasis in these passages (supplied by the
Montana
Court, not by me) underscores the distinction between tribal
members and nonmembers, and seems clearly to indicate, without
restriction to the criminal law, that the inherent authority of the
tribes has been preserved over the former but not the latter. In
fact, after quoting
Wheeler, the Court invoked
Oliphant,
supra, which (as already noted) had imposed a
per se bar
to tribal-court criminal jurisdiction over non-Indians, even with
respect to conduct occurring on tribal land. The
Montana
Court remarked that, "[t]hough
Oliphant only determined
inherent tribal authority in criminal matters, the principles on
which it relied" support a more "general proposition" applicable in
civil cases as well, namely, that "the inherent sovereign powers of
an Indian tribe do not extend to the activities of nonmembers of
the tribe." 450 U. S., at 565. Accordingly, the Court in
Montana repeatedly pressed the member-nonmember distinction,
reiter-
379
ating at one point, for example, that while "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," the "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., at 564; cf.
Oliphant v.
Schlie, 544 F.2d
1007, 1015
(CA9 1976) (Kennedy, J., dissenting) ("The
concept of sovereignty applicable to Indian tribes need not include
the power to prosecute nonmembers. This power, unlike the ability
to maintain law and order on the reservation and to exclude
nondesireable nonmembers, is not essential to the tribe's identity
or its self-governing status"), rev'd
sub nom. Oliphant v.
Suquamish Tribe, 435 U. S. 191 (1978).
To
Montana's "general proposition" confining the subjects
of tribal jurisdiction to tribal members, the Court appended two
exceptions that could support tribal jurisdiction in some civil
matters. First, a tribe may "regulate ... the activities of
nonmembers who enter consensual relationships with the tribe or its
members, through commercial dealing, contracts, leases, or other
arrangements." And second, a tribe may regulate nonmember conduct
that "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 565-566.3 But unless one of these exceptions
applies, the "general
3 Thus, it is true that tribal courts' "civil subject-matter
jurisdiction over non-Indians ... is not automatically foreclosed,
as an extension of
Oliphant would require."
National
Farmers Union Ins. Coso v.
Crow Tribe, 471 U. S. 845, 855
(1985).
"Montana did not extend the full
Oliphant
rationale to the civil jurisdictional question-which would have
completely prohibited civil jurisdiction over nonmembers."
A-l Contractors v.
Strate, 76
F.3d 930, 937
(CA8 1996). Instead, "the
[Montana]
Court found that the tribe retained
some civil jurisdiction
over nonmembers, which the Court went on to describe in the
Montana exceptions."
Ibid.
380
proposition" governs and the tribe's civil jurisdiction does
"not extend to the activities of nonmembers of the tribe."
In
Strate, we expressly extended the
Montana
framework, originally applied as a measure of tribes' civil
regulatory jurisdiction, to limit tribes' civil adjudicatory
jurisdiction. We repeated that "absent express authorization by
federal statute or treaty, tribal jurisdiction over the conduct of
nonmembers exists only in limited circumstances." 520 U. S., at
445. Quoting
Montana, we further explained that "[i]n the
main" (that is, subject to the two exceptions outlined in the
Montana opinion), "'the inherent sovereign powers of an
Indian tribe' -those powers a tribe enjoys apart from express
provision by treaty or statute-'do not extend to the activities of
nonmembers of the tribe.'" 520 U. S., at 445-446. Equally important
for purposes here was our treatment of the following passage from
Iowa Mut. Ins. Co. v.
LaPlante, 480 U. S. 9 (1987), which
seemed to state a more expansive jurisdictional position and which
had been cited by the Tribal Court in
Strate in support of
broad tribal-court civil jurisdiction over nonmembers:
"'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, 565-566
(1981); Washington v. Confederated Tribes of Colville
Indian Reservation, 447 U. S. 134, 152-153
(1980); Fisher v. District Court [of Sixteenth Judicial
Dist. of Mont.], 424 U. S. [382,] 387-389 [(1976)]. Civil
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." 520 U. S., at
451.
The
Strate petitioners fastened upon the statement that
"civil jurisdiction over" the activities of nonmembers on
reservation lands "presumptively lies in the tribal courts." But we
resisted the overbreadth of the
Iowa Mutual dictum.
381
We said that the passage "scarcely supports the view that the
Montana rule does not bear on tribal-court adjudicatory
authority in cases involving nonmember defendants," 520 U. S., at
451-452, and stressed the "three informative citations"
accompanying the statement, which mark the true contours of
inherent tribal authority over nonmembers:
"The first citation points to the passage in Montana in
which the Court advanced 'the general proposition that the inherent
sovereign powers of an Indian tribe do not extend to the activities
of nonmembers of the tribe,' with two prime exceptions. The case
cited second is Washington v. Confederated Tribes of
Colville Reservation, a decision the Montana Court
listed as illustrative of the first Montana exception ....
The third case noted in conjunction with the Iowa Mutual
statement is Fisher v. District Court of Sixteenth
Judicial Dist. of Mont., a decision the Montana Court
cited in support of the second Montana exception .... "
Id., at 452 (citations omitted).
Accordingly, in explaining and distinguishing
Iowa
Mutual, we confirmed in
Strate what we had indicated in
Montana: that as a general matter, a tribe's civil
jurisdiction does not extend to the "activities of non-Indians on
reservation lands,"
Iowa Mutual, supra, at 18, and that the
only such activities that trigger civil jurisdiction are those that
fit within one of
Montana's two exceptions.
After
Strate, it is undeniable that a tribe's remaining
inherent civil jurisdiction to adjudicate 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 claimed,
not on the title to the soil on which he acted. The principle on
which
Montana and
Strate were decided (like
Oliphant before them) looks first to human relationships,
not land records, and it should make no difference
per se
whether acts committed on a reservation
382
occurred on tribal land or on land owned by a nonmember
individual in fee. It is the membership status of the unconsenting
party, not the status of real property, that counts as the primary
jurisdictional fact.4
II
Limiting tribal-court civil jurisdiction this way not only
applies the animating principle behind our precedents, but fits
with historical assumptions about tribal authority and serves sound
policy. As for history, JUSTICE STEVENS has observed that "[i]n
sharp contrast to the tribes' broad powers over their own members,
tribal powers over nonmembers have always been narrowly confined."
Merrion v.
Jicarilla Apache Tribe, 455 U. S. 130, 171 (1982)
(dissenting opinion). His point is exemplified by the early
treaties with those who became known as the five civilized Tribes,
which treaties "specifically granted the right of self-government
to the tribes [but] specifically excluded jurisdiction over
nonmembers."
Id., at 171, n. 21 (citing Treaty with the
Cherokees, Art. 5, 7 Stat. 481 (1835), Treaty with the Choctaws and
Chickasaws, Art. 7, 11 Stat. 612 (1855), and Treaty with the Creeks
and Seminoles, Art. 15, 11 Stat. 703 (1856)). In a similar vein,
referring to 19th-century federal statutes setting the jurisdiction
of the courts of those five Tribes, this Court said in
In re
Mayfield, 141 U.
S. 107, 116 (1891), that the "general object" of such measures
was "to vest in the courts of the [Indian] nation jurisdiction of
all controversies between Indians, or where a member of the nation
is the only party to the proceeding, and to reserve to the
courts
4 Thus, it is not that land status is irrelevant to a proper
Montana calculus, only that it is not determinative in the
first instance. Land status, for instance, might well have an
impact under one (or perhaps both) of the
Montana
exceptions. See
Atkinson Trading Co. v.
Shirley,
532 U. S. 645,
659-660 (2001) (SOUTER, J., concurring); cf.
White Mountain
Apache Tribe v.
Bracker, 448 U. S. 136, 151 (1980)
("[T]here is a significant geographic component to tribal
sovereignty").
383
of the United States jurisdiction of all actions to which its
own citizens are parties on either side." And, in fact, to this
very day, general federal law prohibits Courts of Indian Offenses
(tribunals established by regulation for tribes that have not
organized their own tribal court systems) from exercising
jurisdiction over unconsenting nonmembers. Such courts have
"[c]ivil jurisdiction" only of those actions arising within their
territory "in which the defendant is an Indian, and of all other
suits between Indians and non-Indians which are brought before the
court by stipulation of the parties." 25 CFR § 11.103(a)
(2000).
A rule generally prohibiting tribal courts from exercising civil
jurisdiction over nonmembers, without looking first to the status
of the land on which individual claims arise, also makes sense from
a practical standpoint, for tying tribes' authority to land status
in the first instance would produce an unstable jurisdictional
crazy quilt. Because land on Indian reservations constantly changes
hands (from tribes to nonmembers, from nonmembers to tribal
members, and so on), a jurisdictional rule under which land status
was dispositive would prove extraordinarily difficult to administer
and would provide little notice to nonmembers, whose susceptibility
to tribal-court jurisdiction would turn on the most recent property
conveyances. Cf.
Hodel v.
Irving, 481 U. S. 704, 718 (1987)
(noting the difficulties that attend the "extreme fractionation of
Indian lands").
The ability of nonmembers to know where tribal jurisdiction
begins and ends, it should be stressed, is a matter of real,
practical consequence given "[t]he special nature of [Indian]
tribunals,"
Duro v.
Reina, 495 U. S. 676, 693
(1990), which differ from traditional American courts in a number
of significant respects. To start with the most obvious one, it has
been understood for more than a century that the Bill of Rights and
the Fourteenth Amendment do not of their own force apply to Indian
tribes. See
Talton v.
Mayes, 163 U. S. 376, 382-385
(1896); F. Cohen, Handbook of Federal In-
384
dian Law 664-665 (1982 ed.) (hereinafter Cohen) ("Indian tribes
are not states of the union within the meaning of the Constitution,
and the constitutional limitations on states do not apply to
tribes"). Although the Indian Civil Rights Act of 1968 (ICRA) makes
a handful of analogous safeguards enforceable in tribal courts, 25
U. S. C. § 1302, "the guarantees are not identical," Oliphant, 435
U. S., at 194,5 and there is a "definite trend by tribal courts"
toward the view that they "ha[ve] leeway in interpreting" the
ICRA's due process and equal protection clauses and "need not
follow the U. S. Supreme Court precedents 'jot-for-jot,'" Newton,
Tribal Court Praxis: One Year in the Life of Twenty Indian Tribal
Courts, 22 Am. Indian L. Rev. 285, 344, n. 238 (1998). In any
event, a presumption against tribal-court civil jurisdiction
squares with one of the principal policy considerations underlying
Oliphant, namely, an overriding concern that citizens who are not
tribal members be "protected ... from unwarranted intrusions on
their personal liberty," 435 U. S., at 210.
Tribal courts also differ from other American courts (and often
from one another) in their structure, in the substantive law they
apply, and in the independence of their judges. Although some
modern tribal courts "mirror American courts" and "are guided by
written codes, rules, procedures, and guidelines," tribal law is
still frequently unwritten, being based instead "on the values,
mores, and norms of a tribe and expressed in its customs,
traditions, and practices," and is often "handed down orally or by
example from one generation to another." Melton, Indigenous Justice
Systems and Tribal Society, 79 Judicature 126, 130-131 (1995). The
resulting law applicable in tribal courts is a complex "mix of
tribal codes and federal, state, and traditional law," National
American Indian Court Judges Assn., Indian
5 See also Cohen 667 ("Many significant constitutional
limitations on federal and state governments are not included in
the [ICRA]").
385
Courts and the Future 43 (1978), which would be unusually
difficult for an outsider to sort out.
Hence the practical importance of being able to anticipate
tribal jurisdiction by reference to a fact more readily knowable
than the title status of a particular plot of land. One further
consideration confirms the point. It is generally accepted that
there is no effective review mechanism in place to police tribal
courts' decisions on matters of nontribal law, since tribal-court
judgments based on state or federal law can be neither removed nor
appealed to state or federal courts. Cf.,
e. g., 28 U. S. C.
§ 1441(a) (removal of "any civil action brought in a State court of
which the district courts of the United States have original
jurisdiction"); § 1257(a) (Supreme Court review of "judgments or
decrees rendered by the highest court of a State" where federal law
implicated). The result, of course, is a risk of substantial
disuniformity in the interpretation of state and federal law, a
risk underscored by the fact that "[t]ribal courts are often
'subordinate to the political branches of tribal governments,'"
Duro, supra, at 693 (quoting Cohen 334-335).
III
There is one loose end. The panel majority in the Ninth Circuit
held that "the
Montana presumption against tribal court
jurisdiction does not apply in this case."
196
F.3d 1020, 1028 (1999). Since we have held otherwise, should we
now remand for application of the correct law? There is room for
reasonable disagreement on this point, see
post, at 396
(O'CONNOR, J., concurring in part and concurring in judgment), but
on balance I think a remand is unnecessary. The Court's analysis of
opposing state and tribal interests answers the opinion of the
Ninth Circuit majority; in substance, the issues subject to the
Court of Appeals's principal concern have been considered here. My
own focus on the
Montana presumption was, of course,
addressed by the panel (albeit unsympathetically), and the only
question that
386
might now be considered by the Circuit on my separate approach
to the case is the applicability of the second Mon
tana
exception. But as Judge Rymer indicated in her dissent, the
uncontested fact that the Tribal Court itself authorized service of
the state warrant here bars any serious contention that the
execution of that warrant adversely affected the Tribes' political
integrity. See 196 F. 3d, at 10331034. Thus, even if my alternative
rationale exclusively governed the outcome, remand would be pure
formality.
JUSTICE GINSBURG, concurring.
I join the Court's opinion. As the Court plainly states, and as
JUSTICE SOUTER recognizes, the "holding in this case is limited to
the question of tribal-court jurisdiction over state officers
enforcing state law."
Ante, at 358, n. 2 (opinion of the
Court);
ante, at 376 (SOUTER, J., concurring). The Court's
decision explicitly "leave[s] open the question of tribal-court
jurisdiction over nonmember defendants in general,"
ante, at
358, n. 2, including state officials engaged on tribal land in a
venture or frolic of their own, see
ante, at 373 (a state
officer's conduct on tribal land "unrelated to [performance of his
law-enforcement duties] is potentially subject to tribal
control").
I write separately only to emphasize that
Strate v.
A-l Contractors, 520 U. S. 438 (1997),
similarly deferred larger issues.
Strate concerned a highway
accident on a rightof-way over tribal land. For nonmember
governance purposes, the accident site was equivalent to alienated,
nonIndian land.
Id., at 456. We held that the nonmember
charged with negligent driving in
Strate was not amenable to
the Tribe's legislative or adjudicatory authority. But we
"express[ed] no view on the governing law or proper forum" for
cases arising out of nonmember conduct on tribal land.
Id.,
at 442. The Court's opinion, as I understand it, does not reach out
definitively to answer the jurisdictional questions left open in
Strate.
387
JUSTICE O'CONNOR, with whom JUSTICE STEVENS and JUSTICE BREYER
join, concurring in part and concurring in the judgment.
The Court holds that a tribe has no power to regulate the
activities of state officials enforcing state law on land owned and
controlled by the tribe. The majority's sweeping opinion, without
cause, undermines the authority of tribes to "'make their own laws
and be ruled by them.'"
Strate v.
A-l Contractors,
520 U. S. 438,
459 (1997) (quoting
Williams v.
Lee, 358 U. S. 217, 220
(1959)). I write separately because Part II of the Court's decision
is unmoored from our precedents.
I A
Today, the Court finally resolves that
Montana v.
United States, 450 U. S. 544 (1981),
governs a tribe's civil jurisdiction over nonmembers regardless of
land ownership.
Ante, at 358-360. This is done with little
fanfare, but the holding is significant because we have equivocated
on this question in the past.
In
Montana, we held that the Tribe in that case could not
regulate the hunting and fishing activities of nonmembers on
nontriballand located within the geographical boundaries of the
reservation. 450 U. S., at 557. We explained that the Tribe's
jurisdiction was limited to two instances-where a consensual
relationship exists between the Tribe and nonmembers, or where
jurisdiction was necessary to preserve tribal sovereignty-and we
concluded that neither instance applied.
Id., at 565-567;
ante, at 358-360.
Given the facts of
Montana, it was not clear whether the
status of the persons being regulated, or the status of the land
where the hunting and fishing occurred, led the Court to develop
Montana's jurisdictional rule and its exceptions. In
subsequent cases, we indicated that the nonmember status of the
person being regulated determined
Montana's
388
Opinion of O'CONNOR, J.
application, see,
e. g., South Dakota v.
Bourland,
508 U. S. 679,
694-695, and n. 15 (1993), while in other cases we indicated that
the fee simple status of the land triggered application of
Montana, see,
e. g., Strate v.
A-l Contractors,
supra, at 454, and n. 8. This is the Court's first opportunity
in recent years to consider whether
Montana applies to
nonmember activity on land owned and controlled by the tribe. Cf.
Atkinson Trading Co. v.
Shirley, 532 U. S. 645 (2001).
The Court of Appeals concluded that
Montana did not apply
in this case because the events in question occurred on tribal
land.
196 F.3d
1020, 1028 (CA9 1999). Because
Montana is our best
source of "coherence in the various manifestations of the general
law of tribal jurisdiction over non-Indians,"
Atkinson Trading
Co. v.
Shirley, supra, at 659 (SOUTER, J., concurring),
the majority is quite right that
Montana should govern our
analysis of a tribe's civil jurisdiction over nonmembers both on
and off tribal land. I part company with the majority, however,
because its reasoning is not faithful to
Montana or its
progeny.
B
Montana's principles bear repeating. In
Montana,
the Court announced the "general proposition that the inherent
sovereign powers of an Indian tribe do not extend to the activities
of nonmembers of the tribe." 450 U. S., at 565. The Court further
explained, however, that tribes do retain some attributes of
sovereignty:
"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
389
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 565-566 (citations omitted).
We concluded in that case that hunting and fishing by nonmembers
on reservation land held in fee by nonmembers of the Tribe did not
fit within either of the
"Montana exceptions" that permit
jurisdiction over nonmembers. The hunting and fishing in that case
did not involve a consensual relationship and did not threaten the
security of the Tribe.
Id., at 557. We "readily agree[d]"
with the Court of Appeals in that case, however, that the Tribe
"may prohibit nonmembers from hunting or fishing on land belonging
to the Tribe or held by the United States in trust for the Tribe,"
and that "if the Tribe permits nonmembers to fish or hunt on such
lands, it may condition their entry by charging a fee or
establishing ... limits."
Ibid. In the cases that followed,
we uniformly regarded land ownership as an important factor in
determining the scope of a tribe's civil jurisdiction.
We have held that the tribe's power to impose taxes on
nonmembers doing business on tribal or trust lands of the
reservation is "an essential attribute of Indian sovereignty
because it is a necessary instrument of self-government and
territorial management."
Merrion v.
Jicarilla Apache
Tribe, 455 U. S.
130, 137 (1982). We held that the tribe's power to tax derived
from two distinct sources: the tribe's power of self-government and
the tribe's power to exclude.
Id., at 137, 149. Recognizing
that tribes are" 'unique aggregations possessing attributes of
sovereignty,'" however, we further explained that the power to tax
was "subject to constraints not imposed on other governmental
entities" in that the Federal Government could take away that
power.
Id., at 140-141.
At issue in Brendale v. Confederated Tribes and Bands of Yakima
Nation,
492 U. S.
408 (1989), was whether Tribes
390
Opinion of O'CONNOR, J.
had the authority to zone particular tracts of land within the
boundaries of the reservation owned by nonmembers. Although no
opinion garnered a majority, Members of the Court determined the
Tribes' zoning authority by considering the Tribes' power to
exclude and the Tribes' sovereign interests in preserving the
Tribes' political integrity, economic security, and health and
welfare.
Id., at 423-425, 428-432 (White, J., joined by
REHNQUIST, C. J., and SCALIA and KENNEDY, JJ.); id., at 433-435,
443-444 (STEVENS, J., joined by O'CONNOR, J.); id., at 454-455
(Blackmun, J., joined by Brennan and Marshall, JJ.). In the end,
the Tribes' power to zone each parcel of land turned on the extent
to which the Tribes maintained ownership and control over the areas
in which the parcels were located.
Id., at 438-444, 444-447
(STEVENS, J., joined by O'CONNOR, J.).
In
South Dakota v.
Bourland, supra, we were again
confronted with a Tribe's attempt to regulate hunting and fishing
by nonmembers on lands located within the boundaries of the Tribe's
reservation, but not owned by the tribe. In
Bourland, the
United States had acquired the land at issue from the Tribe under
the Flood Control Act and the Cheyenne River Act.
Id., at
689-690. We concluded that these congressional enactments deprived
the Tribe of "any former right of absolute and exclusive use and
occupation of the conveyed lands."
Id., at 689. We
considered that
Montana's exceptions might support tribal
jurisdiction over nonmembers, but decided to leave that issue for
consideration on remand. 508 U. S., at 695-696.
We have also applied
Montana to decide whether a tribal
court had civil jurisdiction to adjudicate a lawsuit arising out of
a traffic accident on a state highway that passed through a
reservation.
Strate v.
A-l Contractors,
520 U. S. 438 (1997). We
explained that
"Montana delineated-in a main rule and
exceptions-the bounds of the power tribes retain to exercise 'forms
of civil jurisdiction'" over nonmembers. Because our prior cases
did not involve jurisdiction of tribal
391
courts, we clarified that "[a]s to nonmembers ... a
tribe's adjudicative jurisdiction does not exceed its legislative
jurisdiction."
Id., at 453. Again, we considered the status
of the land where the nonmember activities occurred. In accord with
Montana, we "readily agree[d]" "that tribes retain
considerable control over nonmember conduct on tribal land." 520 U.
S., at 454. But we determined that the rightof-way acquired for the
State's highway rendered that land equivalent to "alienated,
non-Indian land."
Ibid. Applying
Montana, we
concluded that the defendant's allegedly tortious conduct did not
constitute a consensual relationship that gave rise to tribal court
jurisdiction. 520 U. S., at 456457. We also found that "[n]either
regulatory nor adjudicatory authority over the state highway
accident ... is needed to preserve 'the right of reservation
Indians to make their own laws and be ruled by them.'''
Id.,
at 459.
Just last month, we applied
Montana in a case concerning
a Tribe's authority to tax nonmember activity occurring on
non-Indian fee land.
Atkinson Trading Co. v.
Shirley,
532 U. S. 645 (2001). In that case, the Tribe argued that it
had the power to tax under
Merrion, supra. We disagreed,
distinguishing
Merrion on the ground that the Tribe's
inherent power to tax "only extended to 'transactions occurring on
trust lands and significantly involving a tribe or its
members.''' 532 U. S., at 653 (quoting
Merrion, supra, at
137). We explained that
"Merrion involved a tax that only
applied to activity occurring on the reservation, and its holding
is therefore easily reconcilable with the
Montana-Strate
line of authority, which we deem to be controlling." 532 U. S., at
653.
Montana and our other cases concerning tribal civil
jurisdiction over nonmembers occupy a middle ground between our
cases that provide for nearly absolute tribal sovereignty over
tribe members, see generally
Williams v.
Lee, 358 U.
S., at 218-223, and our rule that tribes have no inherent criminal
jurisdiction over nonmembers, see
Oliphant v.
Suqua-
392
Opinion of O'CONNOR, J.
mish Tribe,
435 U.
S. 191 (1978). Montana recognizes that tribes retain sovereign
interests in activities that occur on land owned and controlled by
the tribe, and provides principles that guide our determination of
whether particular activities by nonmembers implicate these
sovereign interests to a degree that tribal civil jurisdiction is
appropriate.
C
In this case, the Court purports to apply Montana-in keeping
with the above line of cases-to determine whether the Tribes, "as
an exercise of their inherent sovereignty, ... can regulate state
wardens executing a search warrant for evidence of an
off-reservation crime." Ante, at 358. The Court's reasoning suffers
from two serious flaws: It gives only passing consideration to the
fact that the state officials' activities in this case occurred on
land owned and controlled by the Tribes, and it treats as
dispositive the fact that the nonmembers in this case are state
officials.
Under the first Montana exception, a tribe may exercise
regulatory jurisdiction where a nonmember enters into a consensual
relationship with the tribe. 450 U. S., at 565. The majority in
this case dismisses the applicability of this exception in a
footnote, concluding that any consensual relationship between
tribes and nonmembers "clearly" must be a "private" consensual
relationship "from which the official actions at issue in this case
are far removed." Ante, at 359, n. 3.
The majority provides no support for this assertion. The Court's
decision in Montana did not and could not have resolved the
complete scope of the first exception. We could only apply the
first exception to the activities presented in that case, namely,
hunting and fishing by nonmembers on land owned in fee simple by
nonmembers. 450 U. S., at 557. To be sure, Montana is "an opinion
... not a statute," and therefore it seems inappropriate to speak
of what the
M on-
393
tana Court intended the first exception to mean in future
cases. See
ante, at 372.
State governments may enter into consensual relationships with
tribes, such as contracts for services or shared authority over
public resources. Depending upon the nature of the agreement, such
relationships could provide official consent to tribal regulatory
jurisdiction. Some States have formally sanctioned the creation of
state-tribal agreements. See,
e. g., Mont. Code Ann. §
18-11-101
et seq. (1997) (State-Tribal Cooperative
Agreements Act); Neb. Rev. Stat. § 13-1502
et seq. (1997)
(State-Tribal Cooperative Agreements Act); Okla. Stat., Tit. 74, §
1221 (Supp. 2001) (authorizing Governor to enter into cooperative
agreements on behalf of the State to address issues of mutual
interest). In addition, there are a host of cooperative agreements
between tribes and state authorities to share control over tribal
lands, to manage public services, and to provide law enforcement.
See,
e. g., Cal. Health & Safety Code Ann. § 25198.1
et seq. (West 1992 and Supp. 2001) (cooperative agreements
for hazardous waste management); Cal. Pub. Res. Code Ann. § 44201
et seq. (West 1996) (cooperative agreements for solid waste
management); Minn. Stat. § 626.90
et seq. (Supp.2001)
(authorizing cooperative agreements between state law enforcement
and tribal peace officers); Nev. Rev. Stat. § 277.058 (Supp. 1999)
(cooperative agreements concerning sites of archeological or
historical significance); N. M. Stat. Ann. § 9-11-12.1 (Supp. 2000)
(cooperative agreements for tax administration); Ore. Rev. Stat. §
25.075 (1999) (cooperative agreements concerning child support and
paternity matters); Wash. Rev. Code § 26.25.010
et seq.
(1999) (cooperative agreements for child welfare); § 79.60.010
(cooperative agreements among federal, state, and tribal
governments for timber and forest management).
Whether a consensual relationship between the Tribes and the
State existed in this case is debatable, compare Brief for
Petitioners 36-38 with Brief for Respondents Tribal Court
394
Opinion of O'CONNOR, J.
in and for the Fallon Paiute-Shoshone Tribes et al. 23-25, but
our case law provides no basis to conclude that such a consensual
relationship could never exist. Without a full understanding of the
applicable relationships among tribal, state, and federal entities,
there is no need to create a
per se rule that forecloses
future debate as to whether cooperative agreements, or other forms
of official consent, could ever be a basis for tribal jurisdiction.
Compare
ante, at 359, n. 3, with
ante, at 372.
The second
Montana exception states that a tribe may
regulate nonmember conduct where that conduct "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 concentrates on this aspect of
Montana,
asking whether "regulatory jurisdiction over state officers in the
present context is 'necessary to protect tribal self-government or
to control internal relations,'" and concludes that it is not.
Ante, at 360.
At the outset, the Court recites relatively uncontroversial
propositions. A tribe's right to make its own laws and be governed
by them "does not exclude all state regulatory authority on the
reservation"; a reservation" 'is considered part of the territory
of the State'''; "States may regulate the activities even of tribe
members on tribal land"; and the " 'process of [state] courts may
run into [a] ... reservation.'"
Ante, at 361, 362, 363
(citations omitted).
None of "these prior statements," however, "accord[s]" with the
majority's conclusion that "tribal authority to regulate state
officers in executing process related to [an offreservation
violation of state law] is not essential to tribal self-government
or internal relations."
Ante, at 364. Our prior decisions
are informed by the understanding that tribal, Federal, and State
Governments
share authority over tribal lands. See,
e.
g., Cotton Petroleum Corp. v.
New Mexico,
490 U. S. 163, 176-187
(1989) (concurrent jurisdiction of state and tribal governments to
impose severance taxes
395
on oil and gas production by nonmembers);
Rice v.
Rehner, 463 U.
S. 713 (1983) (concurrent jurisdiction of Federal and State
Governments to issue liquor licenses for transactions on
reservations);
Washington v.
Confederated Tribes of
Colville Reservation, 447 U. S. 134 (1980)
(concurrent jurisdiction of state and tribal governments to tax
cigarette purchases by nonmembers). Saying that tribal jurisdiction
must "accommodat[eJ" various sovereign interests does not mean that
tribal interests are to be nullified through a
per se rule.
Id., at 156.
The majority's rule undermining tribal interests is all the more
perplexing because the conduct in this case occurred on land owned
and controlled by the Tribes. Although the majority gives a passing
nod to land status at the outset of its opinion,
ante, at
360, that factor is not prominent in the Court's analysis. This
oversight is significant.
M on
tana recognizes that
tribes may retain inherent power to exercise civil jurisdiction
when the nonmember conduct "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. These interests are far
more likely to be implicated where, as here, the nonmember activity
takes place on land owned and controlled by the tribe. If
M
on
tana is to bring coherence to our case law, we must apply
it with due consideration to land status, which has always figured
prominently in our analysis of tribal jurisdiction. See
supra, at 388-392.
This case involves state officials acting on tribal land.
The Tribes' sovereign interests with respect to nonmember
activities on its land are not extinguished simply because the
nonmembers in this case are state officials enforcing state law.
Our cases concerning tribal power often involve the competing
interests of state, federal, and tribal governments. See,
e. g.,
Cotton Petroleum Corp., supra; Confederated Tribes, supra; Rehner,
supra. The actions of state officials on tribal land in some
instances may affect tribal sovereign interests to a greater, not
lesser, degree than the
396
Opinion of O'CONNOR, J.
actions of private parties. In this case, for example, it is
alleged that state officers, who gained access to Hicks' property
by virtue of their authority as state actors, exceeded the scope of
the search warrants and damaged Hicks' personal property.
Certainly, state officials should be protected from civil
liability for actions undertaken within the scope of their duties.
See
infra, at 400-401. The majority, however, does not
conclude that the officials in this case were acting within the
scope of their duties. Moreover, the majority finds it "irrelevant"
that Hicks' lawsuits are against state officials in their personal
capacities.
Ante, at 365. The Court instead announces the
rule that state officials "cannot be regulated in the performance
of their law enforcement duties," but "[a]ction unrelated to that
is potentially subject to tribal control."
Ante, at 373.
Here, Hicks alleges that state officials exceeded the scope of
their authority under the search warrants. The Court holds that the
state officials may not be held liable in Tribal Court for these
actions, but never explains where these, or more serious
allegations involving a breach of authority, would fall within its
new rule of state official immunity.
The Court's reasoning does not reflect a faithful application of
Montana and its progeny. Our case law does not support a
broad
per se rule prohibiting tribal jurisdiction over
nonmembers on tribal land whenever the nonmembers are state
officials. If the Court were to remain true to the principles that
have governed in prior cases, the Court would reverse and remand
the case to the Court of Appeals for a proper application of
Montana to determine whether there is tribal jurisdiction.
Compare 196 F. 3d, at 1032-1034 (Rymer, J., dissenting) (concluding
that there is no jurisdiction under
Montana), with 944 F.
Supp. 1455, 1466 (Nev. 1996) (assuming,
arguendo, that
Montana applies and concluding that there is jurisdiction).
See also
Bourland, 508 U. S., at 695-696.
397
II
The Court's sweeping analysis gives the impression that this
case involves a conflict of great magnitude between the State of
Nevada and the Fallon Paiute-Shoshone Tribes. That is not so. At no
point did the Tribes attempt to exclude the State from the
reservation. At no point did the Tribes attempt to obstruct state
officials' efforts to secure or execute the search warrants. Quite
the contrary, the record demonstrates that judicial and law
enforcement officials from the State and the Tribes acted in full
cooperation to investigate an off-reservation crime.
Ante,
at 355-357; 944 F. Supp., at 1458-1459.
In this case, Hicks attempts to hold state officials
(and
tribal officials) liable for allegedly exceeding the scope of the
search warrants and damaging his personal property. This case
concerns the Tribes' civil
adjudicatory jurisdiction over
state officials. The Court concludes that it cannot address
adjudicatory jurisdiction without first addressing the Tribes'
regulatory jurisdiction.
Ante, at 357-358. But there is no
need for the Court to decide the precise scope of a tribe's
regulatory jurisdiction, or to decide in this case whether a
tribe's adjudicatory jurisdiction equals its regulatory
jurisdiction. Cf.
ante, at 358, 373-374.
To resolve this case, it suffices to answer the questions
presented, which concern the civil adjudicatory jurisdiction of
tribal courts. See Pet. for Cert. i. Petitioners contend that
tribal court jurisdiction over state officials should be determined
with reference to officials' claims of immunity. I agree and would
resolve this case by applying basic principles of official and
qualified immunity.
The state officials raised immunity defenses to Hicks' claims in
Tribal Court. The Tribal Court acknowledged the officials' claims,
but did not consider the immunity defenses in determining its
jurisdiction. App. to Pet. for Cert. C1-C8. The Federal District
Court ruled that because the Tribal Court had not decided the
immunity issues, the fed-
398
Opinion of O'CONNOR, J.
eral court should stay its hand and not decide the immunity
issues while reviewing the Tribal Court's jurisdiction. 944 F.
Supp., at 1468-1469, and n. 26. The Ninth Circuit affirmed,
concluding that the District Court correctly applied the exhaustion
requirement to the immunity issues. 196 F. 3d, at 1029-1031. In my
view, the Court of Appeals misunderstood our precedents when it
refused to consider the state officials' immunity claims as it
reviewed the Tribal Court's civil jurisdiction.
In determining the relationship between tribal courts and state
and federal courts, we have developed a doctrine of exhaustion
based on principles of comity. See,
e. g.,
Iowa Mut. Ins.
Co. v.
LaPlante, 480 U. S. 9 (1987);
National Farmers Union Ins. Coso v.
Crow Tribe,
471 U. S. 845
(1985). In
National Farmers Union, a member of the Tribe
sued the local school district, an arm of the State, in a personal
injury action.
Id., at 847. The defendants sued in federal
court challenging the Tribal Court's jurisdiction. The District
Court concluded that the Tribal Court lacked jurisdiction and
enjoined the Tribal Court proceedings. The Court of Appeals
reversed, holding that the District Court lacked jurisdiction to
enter the injunction.
We reversed the Court of Appeals' conclusion that the District
Court lacked jurisdiction over the federal action. We explained
that the "extent to which Indian tribes have retained the power to
regulate the affairs of non-Indians" is governed by federal law.
Id., at 851-852. Likewise, "[t]he question whether an Indian
tribe retains the power to compel a non-Indian property owner to
submit to the civil jurisdiction of a tribal court is one that must
be answered by reference to federal law," and therefore district
courts may determine under 28 U. S. C. § 1331 whether a tribal
court has exceeded the lawful limits of its jurisdiction. 471 U.
S., at 852.
We refused to foreclose entirely the civil jurisdiction of
tribal courts over nonmembers as we had foreclosed inherent
399
criminal jurisdiction over nonmembers in
Oliphant v.
Suquamish Tribe, 435 U. S. 191 (1978). See
National Farmers, 471 U. S., at 854-855. Instead, we
reasoned that "the existence and extent of a tribal court's
jurisdiction will require a careful examination of tribal
sovereignty, the extent to which that sovereignty has been altered,
divested, or diminished, as well as a detailed study of relevant
statutes, Executive Branch policy as embodied in treaties and
elsewhere, and administrative or judicial decisions."
Id.,
at 855-856 (footnote omitted). We concluded that this "examination
should be conducted in the first instance in the Tribal Court
itself," and that a federal court should "sta[y] its hand" until
after the tribal court has had opportunity to determine its own
jurisdiction.
Id., at 856-857.
In
Iowa Mutual, an insurance company sued members of a
Tribe in federal court on the basis of diversity jurisdiction; at
the same time, a civil lawsuit by the tribal members was pending
against the nonmember insurance company in Tribal Court. 480 U. S.,
at 11-13. The District Court granted the tribal members' motion to
dismiss the federal action for lack of jurisdiction on the ground
that the Tribal Court should have had the first opportunity to
determine its jurisdiction. The Court of Appeals affirmed.
We reversed and remanded. We made clear that the Tribal Court
should be given the first opportunity to determine its
jurisdiction, but emphasized that "[e]xhaustion is required as a
matter of comity, not as a jurisdictional prerequisite."
Id., at 16-17, and n. 8. We explained that tribal court
remedies must be exhausted, but the tribal court's "determination
of tribal jurisdiction is ultimately subject to review," and may be
challenged in district court.
Id., at 19.
Later, in
Strate, "we reiterate[d] that
National
Farmers and
Iowa Mutual enunciate only an exhaustion
requirement, a prudential rule, based on comity." 520 U. S., at 453
(internal quotation marks and citation omitted). See also
El
Paso Natural Gas Co. v.
Neztsosie, 526 U. S. 473,
482-487
400
Opinion of O'CONNOR, J.
(1999). Application of that principle in this case leads me to
conclude that the District Court and the Court of Appeals should
have considered the state officials' immunity claims as they
determined the Tribal Court's jurisdiction.
The doctrines of official immunity, see,
e. g., Westfall
v.
Erwin, 484
U. S. 292, 296-300 (1988), and qualified immunity, see,
e.
g., Harlow v.
Fitzgerald, 457 U. S. 800, 813-819
(1982), are designed to protect state and federal officials from
civil liability for conduct that was within the scope of their
duties or conduct that did not violate clearly established law.
These doctrines short-circuit civil litigation for officials who
meet these standards so that these officials are not subjected to
the costs of trial or the burdens of discovery. 457 U. S., at
817-818. For example, the Federal Employees Liability Reform and
Tort Compensation Act of 1988, commonly known as the Westfall Act,
allows the United States to substitute itself for a federal
employee as defendant upon certifying that the employee was acting
within the scope of his duties. 28 U. S. C. § 2679(d). Nevada law
contains analogous provisions. See Nev. Rev. Stat. §§ 41.032,
41.033541.0339 (1996 and Supp. 1999). The employee who successfully
claims official immunity therefore invokes the immunity of the
sovereign. When a state or federal official asserts qualified
immunity, he claims that his actions were reasonable in light of
clearly established law.
Anderson v.
Creighton,
483 U. S. 635
(1987). In those cases, we allow that official to take an immediate
interlocutory appeal from an adverse ruling to ensure that the
civil proceedings do not continue if immunity should be granted.
Mitchell v.
Forsyth, 472 U. S. 511, 524-530
(1985).
In this case, the state officials raised their immunity defenses
in Tribal Court as they challenged that court's subject matter
jurisdiction. App. to Pet. for Cert. J5-J6, K8, K11-K13; 196 F. 3d,
at 1029-1031. Thus the Tribal Court and the Appellate Tribal Court
had a full opportunity to address the immunity claims. These
defendants, like other
401
officials facing civil liability, were entitled to have their
immunity defenses adjudicated at the earliest stage possible to
avoid needless litigation. It requires no "magic" to afford
officials the same protection in tribal court that they would be
afforded in state or federal court.
Ante, at 373. I would
therefore reverse the Court of Appeals in this case on the ground
that it erred in failing to address the state officials' immunity
defenses. It is possible that Hicks' lawsuits would have been
easily disposed of on the basis of official and qualified
immunity.
***
The Court issues a broad holding that significantly alters the
principles that govern determinations of tribal adjudicatory and
regulatory jurisdiction. While I agree that
Montana guides
our analysis, I do not believe that the Court has properly applied
Montana. I would not adopt a
per se rule of tribal
jurisdiction that fails to consider adequately the Tribes' inherent
sovereign interests in activities on their land, nor would I give
nonmembers freedom to act with impunity on tribal land based solely
on their status as state law enforcement officials. I would hold
that
Montana governs a tribe's civil jurisdiction over
nonmembers, and that in order to protect government officials,
immunity claims should be considered in reviewing tribal court
jurisdiction. Accordingly, I would reverse the judgment of the
United States Court of Appeals for the Ninth Circuit and remand the
case for further proceedings consistent with this opinion.
JUSTICE STEVENS, with whom JUSTICE BREYER joins, concurring in
the judgment.
While I join the Court's disposition of the case for the reasons
stated by JUSTICE O'CONNOR, I do not agree with the Court's
conclusion that tribal courts may not exercise their jurisdiction
over claims seeking the relief authorized by 42
402
STEVENS, J., concurring in judgment
u. S. C. § 1983.1 I agree instead with the Solicitor General's
submission that a tribal court may entertain such a claim unless
enjoined from doing so by a federal court. See Brief for United
States as
Amicus Curiae 24-30.
The majority's analysis of this question is exactly backwards.
It appears to start from the assumption that tribal courts do not
have jurisdiction to hear federal claims unless federal law
expressly grants them the power, see
ante, at 367-368, and
then concludes that, because no such express grant of power has
occurred with respect to § 1983, tribal courts must lack the
authority to adjudicate those claims.
Ante, at 368 ("[N]o
provision in federal law provides for tribal-court jurisdiction
over § 1983 actions"). But the Court's initial assumption is deeply
flawed. Absent federal law to the contrary, the question whether
tribal courts are courts of general jurisdiction is fundamentally
one of
tribal law. Cf.
Gulf Offshore Co. v.
Mobil
Oil Corp., 453 U.
S. 473, 478 (1981) (State-court subject-matter jurisdiction is
"gov-
1 As an initial matter, it is not at all clear to me that the
Court's discussion of the § 1983 issue is necessary to the
disposition of this case.
Strate v.
A-l Contractors,
520 U. S. 438
(1997), discusses the question whether a tribal court can exercise
jurisdiction over nonmembers, irrespective of the type of claim
being raised. See id., at 459, n. 14 ("When ... it is plain that no
federal grant provides for tribal governance of nonmembers' conduct
on land covered by [the main rule in]
Montana [v.
United
States, 450 U. S.
544 (1981)], ... it will be equally evident that tribal courts
lack adjudicatory authority over disputes arising from such
conduct"). Cf.
El Paso Natural Gas Co. v.
Neztsosie,
526 U. S. 473,
482, n. 4 (1999)
("Strate dealt with claims against
nonmembers arising on state highways, and 'express[ed] no view on
the governing law or proper forum when an accident occurs on a
tribal road within a reservation' "). Given the majority's
determination in Part II that tribal courts lack such jurisdiction
over "state wardens executing a search warrant for evidence of an
off-reservation crime,"
ante, at 357, I fail to see why the
Court needs to reach out to discuss the seemingly hypothetical
question whether, if the tribal courts
had jurisdiction over
claims against "state wardens executing a search warrant," they
could hear § 1983 claims against those wardens.
403
erned in the first instance by
state laws" (emphasis
added)).2 Given a tribal assertion of general subject-matter
jurisdiction, we should recognize a tribe's authority to adjudicate
claims arising under § 1983 unless federal law dictates otherwise.
Cf. id., at 477-478 ("[S]tate courts may assume subject-matter
jurisdiction over a federal cause of action absent provision by
Congress to the contrary or disabling incompatibility between the
federal claim and state-court adjudication").3
I see no compelling reason of federal law to deny tribal courts
the authority, if they have jurisdiction over the par-
2 This principle is not based upon any mystical attribute of
sovereignty, as the majority suggests, see
ante, at 366-367,
but rather upon the simple, commonsense notion that it is the body
creating a court that determines what sorts of claims that court
will hear. The questions whether that court has the power to compel
anyone to listen to it and whether its assertion of subject-matter
jurisdiction conflicts with some higher law are separate
issues.
3 The majority claims that
"Strate is [the] 'federal law
to the contrary'" that explains its restriction of tribal court
subject-matter jurisdiction over § 1983 suits.
Ante, at 367,
n. 8. But
Strate merely concerned the circumstances under
which tribal courts can exert jurisdiction over claims against
nonmembers. See 520 U. S., at 447-448. It most certainly does
not address the question whether, assuming such jurisdiction
to exist, tribal courts can entertain § 1983 suits. Yet the
majority's holding that tribal courts lack subject-matter
jurisdiction over § 1983 suits would, presumably, bar those courts
from hearing such claims even if jurisdiction over nonmembers would
be proper under
Strate. Accordingly, whatever else
Strate may do, it
does not supply the proposition of
federal law upon which the majority purports to rely.
Of course, if the majority, as it suggests, is merely holding
that § 1983 does not
enlarge tribal jurisdiction beyond what
is permitted by
Strate, its decision today is far more
limited than it might first appear from the Court's sometimes
sweeping language. Compare
ante, at 369 ("[T]ribal courts
cannot entertain § 1983 suits"), with
ante, at 366, n. 7
("We conclude (as we must) that § 1983 is not ... an enlargement
[of tribal-court jurisdiction]"). After all, if the Court's holding
is that § 1983 merely fails to "enlarg[e]" tribal-court
jurisdiction, then nothing would prevent tribal courts from
deciding § 1983 claims in cases in which they properly exercise
jurisdiction under
Strate.
404
STEVENS, J., concurring in judgment
ties, to decide claims arising under § 1983. Section 1983
creates no new substantive rights, see
Chapman v.
Houston
Welfare Rights Organization, 441 U. S. 600, 617
(1979); it merely provides a federal cause of action for the
violation of federal rights that are independently established
either in the Federal Constitution or in federal statutory law.
Despite the absence of any mention of state courts in § 1983, we
have never questioned the jurisdiction of such courts to provide
the relief it authorizes.4
Moreover, as our decision in
El Paso Natural Gas Co.
v.
Neztsosie, 526 U. S. 473 (1999),
demonstrates, the absence of an express statutory provision for
removal to a federal court upon the motion of the defendant
provides no obstacle whatsoever to the granting of equivalent
relief by a federal district court. See id., at 485 ("Injunction
against further litigation in tribal courts would in practical
terms give the same result as a removal ... "). "Why, then, the
congressional silence on tribal courts? [I]nadvertence seems the
most likely [explanation] ... Now and then silence is not
pregnant."
Id., at 487. There is really no more reason for
treating the silence in § 1983 concerning tribal courts as an
objection to tribal-court jurisdiction over such claims than there
is for treating its silence concerning state courts as an objection
to state-court jurisdiction.
In sum, I agree with the interpretation of this federal statute
that is endorsed by the Solicitor General of the United States.
4 The authority of state courts to hear § 1983 suits was not
always so uncontroversial. See,
e. g., Note, Limiting the
Section 1983 Action in the Wake of Monroe v. Pape, 82 Harv. L. Rev.
1486, 1497, n. 62 (1969) ("State courts have puzzlingly hesitated
on whether they have jurisdiction over § 1983 claims as such, and
no case has been found in which a state court granted relief under
the section. In one case a state supreme court adopted the
expedient of disavowing a position on jurisdiction while denying
recovery on the merits").
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