OCTOBER TERM, 1996
Syllabus
STRATE, ASSOCIATE TRIBAL JUDGE, TRIBAL COURT OF THE THREE
AFFILIATED TRIBES OF THE FORT BERTHOLD INDIAN RESERVATION, ET AL.
v. A-l CONTRACTORS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
No. 95-1872. Argued January 7, 1997-Decided April 28, 1997
Vehicles driven by petitioner Fredericks and respondent Stockert
collided on a portion of a North Dakota state highway that runs
through the Fort Berthold Indian Reservation. The 6.59-mile stretch
of highway within the reservation is open to the public, affords
access to a federal water resource project, and is maintained by
North Dakota under a federally granted right-of-way that lies on
land held by the United States in trust for the Three Affiliated
Tribes and their members. Neither driver is a member of the Tribes
or an Indian, but Fredericks is the widow of a deceased tribal
member and has five adult children who are also members. The truck
driven by Stockert belonged to his employer, respondent A-I
Contractors, a non-Indian-owned enterprise with its principal place
of business outside the reservation. At the time, A-I was under a
subcontract with LCM Corporation, a corporation wholly owned by the
Tribes, to do landscaping within the reservation. The record does
not show whether Stockert was engaged in subcontract work at the
time of the accident. Fredericks filed a personal injury action in
Tribal Court against Stockert and A-I, and Fredericks' adult
children filed a loss-of-consortium claim in the same lawsuit. The
Tribal Court ruled that it had jurisdiction over Fredericks' claim
and therefore denied respondents' motion to dismiss, and the
Northern Plains Intertribal Court of Appeals affirmed. Respondents
then commenced this action in the Federal District Court against
Fredericks, her adult children, the Tribal Court, and Tribal Judge
Strate, seeking a declaratory judgment that, as a matter of federal
law, the Tribal Court lacked jurisdiction to adjudicate Fredericks'
claims; respondents also sought an injunction against further
Tribal Court proceedings. Relying particularly on
National
Farmers Union Ins. Coso v.
Crow Tribe, 471 U. S. 845, and
Iowa Mut. Ins. Co. v.
LaPlante, 480 U. S. 9, the District
Court dismissed the action, determining that the Tribal Court had
civil jurisdiction over Fredericks' complaint against respondents.
The
439
en banc Eighth Circuit reversed, concluding that the controlling
precedent was
Montana v.
United States, 450 U. S. 544, and that,
under
Montana, the Tribal Court lacked subject-matter
jurisdiction over the dispute.
Held: When an accident occurs on a public highway
maintained by the State pursuant to a federally granted
right-of-way over Indian reservation land, a civil action against
allegedly negligent nonmembers falls within state or federal
regulatory and adjudicatory governance; absent a statute or treaty
authorizing the tribe to govern the conduct of nonmembers driving
on the State's highway, tribal courts may not exercise jurisdiction
in such cases. This Court expresses no view on the governing law or
proper forum when an accident occurs on a tribal road within a
reservation. Pp. 445-460.
(a) Absent express authorization by federal statute or treaty,
tribal jurisdiction over nonmembers' conduct exists only in limited
circumstances. In
Oliphant v.
Suquamish Tribe,
435 U. S. 191,
the Court held that tribes lack criminal jurisdiction over
non-Indians. Later, in
Montana v.
United States, the
Court set forth the general rule that, absent a different
congressional direction, Indian tribes lack civil authority over
the conduct of nonmembers on non-Indian land within a reservation,
subject to exceptions relating to (1) the activities of nonmembers
who enter consensual relationships with the tribe or its members
and (2) nonmember conduct that threatens or directly affects the
tribe's political integrity, economic security, health, or welfare.
450 U. S., at 564-567. Pp. 445-448.
(b)
Montana controls this case. Contrary to petitioners'
contention,
National Farmers and
Iowa Mutual do not
establish a rule converse to
Montana's. Neither case
establishes that tribes presumptively retain adjudicatory authority
over claims against nonmembers arising from occurrences anywhere
within a reservation. Rather, these cases prescribe a prudential,
nonjurisdictional exhaustion rule requiring a federal court in
which tribal-court jurisdiction is challenged to stay its hand, as
a matter of comity, until after the tribal court has had an initial
and full opportunity to determine its own jurisdiction. See 471 U.
S., at 857; 480 U. S., at 20, n. 14; see also
id., at 16, n.
8. This exhaustion rule, as explained in
National Farmers,
471 U. S., at 855-856, reflects the more extensive jurisdiction
tribal courts have in civil cases than in criminal proceedings and
the corresponding need to inspect relevant statutes, treaties, and
other materials in order to determine tribal adjudicatory
authority.
National Farmers' exhaustion requirement does not
conflict with
Montana, in which the Court made plain that
the general rule and exceptions there announced govern only in the
absence of a delegation
440
Syllabus
of tribal authority by treaty or statute. See 450 U. S., at
557-563. Read in context, the Court's statement in
Iowa
Mutual, 480 U. S., at 18, that "[c]ivil jurisdiction over [the]
activities [of non-Indians on reservation lands] presumptively lies
in the tribal courts," addresses only situations in which tribes
possess authority to regulate nonmembers' activities. As to
nonmembers, a tribe's adjudicative jurisdiction does not exceed its
legislative jurisdiction, absent congressional direction enlarging
tribal-court jurisdiction. Pp.448-453.
(c) It is unavailing to argue, as petitioners do, that
Montana does not govern this case because the land
underlying the accident scene is held in trust for the Three
Mfiliated Tribes and their members. Petitioners are correct that
Montana and the cases following its
instruction-Brendale v.
Confederated Tribes and Bands of
Yakima Nation, 492 U. S. 408, and
South Dakota v.
Bourland, 508 U. S. 679-all
involved alienated, non-Indian-owned reservation land. However, the
right-of-way North Dakota acquired for its highway renders the
6.59-mile stretch here at issue equivalent, for nonmember
governance purposes, to such alienated, non-Indian land. The
right-of-way was granted to facilitate public access to a federal
water resource project, forms part of the State's highway, and is
open to the public. Traffic on the highway is subject to the
State's control. The granting instrument details only one specific
reservation to Indian landowners, the right to construct necessary
crossings, and the Tribes expressly reserved no other right to
exercise dominion or control over the right-of-way. Rather, they
have consented to, and received payment for, the State's use of the
stretch at issue, and so long as that stretch is maintained as part
of the State's highway, they cannot assert a landowner's right to
occupy and exclude. pp. 454-456.
(d) Petitioners refer to no treaty or federal statute
authorizing the Three Affiliated Tribes to entertain
highway-accident tort suits of the kind Fredericks commenced
against A-I and Stockert. Nor have they shown that Fredericks'
tribal-court action qualifies under either of the exceptions to
Montana's general rule. The tortious conduct alleged by
Fredericks does not fit within the first exception for "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, particularly when measured
against the conduct at issue in the cases cited by
Montana,
id., at 565-566, as fitting within the exception,
Williams v.
Lee, 358 U. S. 217, 223;
Morris v.
Hitchcock, 194 U. S. 384;
Buster v.
Wright, 135 F.9d
7,950; and
Washington v.
Confederated Tribes of
Colville Reservation, 447 U. S. 134, 152154.
This dispute is distinctly nontribal in nature, arising between two
non-Indians involved in a run-of-the-mill highway accident.
Although
441
A-I was engaged in subcontract work on the reservation, and
therefore had a "consensual relationship" with the Tribes,
Fredericks was not a party to the subcontract, and the Tribes were
strangers to the accident.
Montana's second exception,
concerning 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 566, is also inapplicable. The
cases cited by
Montana as stating this exception each raised
the question whether a State's (or Territory's) exercise of
authority would trench unduly on tribal self-government.
Fisher v.
District Court of Sixteenth Judicial Dist. of
Mont., 424 U. S.
382, 386;
Williams, 358 U. S., at 220;
Montana
Catholic Missions v.
Missoula County, 200 U. S. 118, 128-129;
and
Thomas v.
Gay, 169 U. S. 264, 273.
Opening the Tribal Court for Fredericks' optional use is not
necessary to protect tribal self-government; and requiring A-I and
Stockert to defend against this commonplace state highway accident
claim in an unfamiliar court is not crucial to the Tribes'
political integrity, economic security, or health or welfare. Pp.
456-459.
76 F.3d
930, affirmed.
GINSBURG, J., delivered the opinion for a unanimous Court.
Melody L. McCoy argued the cause for petitioners. With
her on the brief was
Donald R. Wharton.
Jonathan E. Nuechterlein argued the cause for the United States
as amicus curiae urging reversal. With him on the brief were Acting
Solicitor General Dellinger, Assistant Attorney General Schiffer,
Deputy Solicitor General Kneedler, and Edward
J.
Shawaker.
Patrick J. Ward argued the cause and filed
a brief for respondents. *
*Briefs of
amici curiae urging reversal were filed for
the Assiniboine and Sioux Tribes of the Fort Peck Reservation et
al. by
Reid Peyton Chambers; for the Northern Plains Tribal
Judges Association by
B. J. Jones; for the
Shakopee Mdewakanton Sioux (Dakota) Community et al. by
Kurt V.
BlueDog and
Richard A. Duncan; and for the
Yavapai-Apache Nation et al. by
Susan M. Williams and
Gwenellen P. Janov.
Briefs of
amici curiae urging affirmance were 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 jurisdictions as fol-
442
JUSTICE GINSBURG delivered the opinion of the Court. This case
concerns the adjudicatory authority of tribal courts over personal
injury actions against defendants who are not tribal members.
Specifically, we confront this question: When an accident occurs on
a portion of a public highway maintained by the State under a
federally granted right-of-way over Indian reservation land, may
tribal courts entertain a civil action against an allegedly
negligent driver and the driver's employer, neither of whom is a
member of the tribe?
Such cases, we hold, fall within state or federal regulatory and
adjudicatory governance; tribal courts may not entertain claims
against nonmembers arising out of accidents on state highways,
absent a statute or treaty authorizing the tribe to govern the
conduct of nonmembers on the highway in question. We express no
view on the governing law or proper forum when an accident occurs
on a tribal road within a reservation.
I
In November 1990, petitioner Gisela Fredericks and respondent
Lyle Stockert were involved in a traffic accident on a portion of a
North Dakota state highway running through the Fort Berthold Indian
Reservation. The highway strip crossing the reservation is a
6.59-mile stretch of road, open to the public, affording access to
a federal water resource project. North Dakota maintains the road
under a right-of-
lows:
Grant Woods of Arizona,
Daniel E. Lungren of
California,
Gale A. Norton of Colorado,
Alan G.
Lance of Idaho,
Scott Harshbarger of Massachusetts,
Mike Moore of Mississippi,
Frankie Sue Del Papa of
Nevada,
Dennis C.
Vacco of New York,
Mark
Barnett of South Dakota,
Jan Graham of Utah,
Christine Q Gregoire of Washington,
James E. Doyle of
Wisconsin, and
William U. Hill of Wyoming; for Lake County,
Montana, et al. by
Jon Metropoulos; for the American
Trucking Associations, Inc., et al. by
Michele Odorizzi,
Andrew J. Pincus, and
Daniel R. Barney;
and for the Council of State Governments et al. by
Richard
Ruda and
Charles F.
Lettow.
443
way granted by the United States to the State's Highway
Department; the right-of-way lies on land held by the United States
in trust for the Three Affiliated Tribes (Mandan, Hidatsa, and
Arikara) and their members.
The accident occurred when Fredericks' automobile collided with
a gravel truck driven by Stockert and owned by respondent A-1
Contractors, Stockert's employer. A-1 Contractors, a
non-Indian-owned enterprise with its principal place of business
outside the reservation, was at the time under a subcontract with
LCM Corporation, a corporation wholly owned by the Tribes, to do
landscaping work related to the construction of a tribal community
building. A-1 Contractors performed all work under the subcontract
within the boundaries of the reservation.1 The record does not show
whether Stockert was engaged in subcontract work at the time of the
accident. Neither Stockert nor Fredericks is a member of the Three
Affiliated Tribes or an Indian. Fredericks, however, is the widow
of a deceased member of the Tribes and has five adult children who
are tribal members.2
Fredericks sustained serious injuries in the accident and was
hospitalized for 24 days. In May 1991, she sued respondents A-1
Contractors and Stockert, as well as A-1 Contractors' insurer, in
the Tribal Court for the Three Affiliated Tribes of the Fort
Berthold Reservation. In the same lawsuit, Fredericks' five adult
children filed a loss-of-consortium
1 Respondents state that the subcontract had forum-selection and
choice-of-Iaw provisions selecting Utah state courts and Utah law
for dispute resolution. See Brief for Respondents 2. Petitioners do
not contest this point, but the subcontract is not part of the
record in this case.
2 The Court of Appeals for the Eighth Circuit stated that
petitioner Fredericks resides on the reservation. See
76 F.3d
930, 932 (1996) (en bane). Respondents assert, however, that
there is an unresolved factual dispute regarding Fredericks'
residence at the time of the accident. See Brief for Respondents
1-2, n. 2; Brief in Opposition 3, n. 4. Under our disposition of
the case, Fredericks' residence at the time of the accident is
immaterial.
444
claim. Together, Fredericks and her children sought damages
exceeding $13 million. App.8-10.
Respondents and the insurer made a special appearance in the
Tribal Court to contest that court's personal and subject-matter
jurisdiction. The Tribal Court ruled that it had authority to
adjudicate Gisela Fredericks' case, and therefore denied
respondents' motion to dismiss the action.
Id., at 24-25.3
Respondents appealed the Tribal Court's jurisdictional ruling to
the Northern Plains Intertribal Court of Appeals, which affirmed.
Id., at 36. Thereafter, pursuant to the parties'
stipulation, the Tribal Court dismissed the insurer from the suit.
See
id., at 38-40.
Before Tribal Court proceedings resumed, respondents commenced
this action in the United States District Court for the District of
North Dakota. Naming as defendants Fredericks, her adult children,
the Tribal Court, and Tribal Judge William Strate, respondents
sought a declaratory judgment that, as a matter of federal law, the
Tribal Court lacked jurisdiction to adjudicate Fredericks' claims.
The respondents also sought an injunction against further
proceedings in the Tribal Court. See
id., at 41-45.
Relying particularly on this Court's decisions in
National
Farmers Union Ins. Coso v.
Crow Tribe, 471 U. S. 845 (1985), and
Iowa Mut. Ins. Co. v.
LaPlante, 480 U. S. 9 (1987), the
District Court determined that the Tribal Court had civil
jurisdiction over Fredericks' complaint against A-1 Contractors and
Stockert; accordingly, on cross-motions for summary judgment, the
District Court dismissed the action. App. 54-67. On appeal, a
divided panel of the United States Court of Appeals for the Eighth
Circuit affirmed. App. 6890. The Eighth Circuit granted rehearing
en bane and, in an 8-to-4 decision, reversed the District Court's
judgment.
3 Satisfied that it could adjudicate Gisela Fredericks' claims,
the Tribal Court declined to address her adult children's
consortium claim, App. 25; thus, no ruling on that claim is here at
issue.
445
76 F.3d
930 (1996). The Court of Appeals concluded that our decision in
Montana v.
United States, 450 U. S. 544 (1981), was
the controlling precedent, and that, under
Montana, the
Tribal Court lacked subject-matter jurisdiction over the
dispute.4
We granted certiorari, 518 U. S. 1056 (1996), and now
affirm.
II
Our case law establishes that, absent express authorization by
federal statute or treaty, tribal jurisdiction over the conduct of
nonmembers exists only in limited circumstances. In
Oliphant
v.
Suquamish Tribe, 435 U. S. 191 (1978), the
Court held that Indian tribes lack criminal jurisdiction over
non-Indians.5
Montana v.
United States, decided three
years later, is the pathmarking case concerning tribal civil
authority over nonmembers.
Montana concerned the authority
of the Crow Tribe to regulate hunting and fishing by non-Indians on
lands within the Tribe's reservation owned in fee simple by
non-Indians. The Court said in
Montana that the restriction
on tribal criminal jurisdiction recognized in
Oliphant
rested on principles that support a more "general proposition." 450
U. S., at 565. In the main, the Court explained, "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
4 Petitioner Fredericks has commenced a similar lawsuit in a
North Dakota state court "to protect her rights against the running
of the State's six-year statute of limitations." Reply Brief 6, n.
2. Respondents assert that they have answered the complaint and
"are prepared to proceed in that forum." Brieffor Respondents 8, n.
6. Respondents also note, without contradiction, that the state
forum "is physically much closer by road to the accident scene ...
than [is] the tribal courthouse."
Ibid.
5 In
Duro v.
Reina, 495 U. S. 676, 684-685
(1990), we held that Indian tribes also lack criminal jurisdiction
over nonmember Indians. Shortly after our decision in
Duro,
Congress provided for tribal criminal jurisdiction over nonmember
Indians. See 25 U. S. C. § 1301(2).
446
of nonmembers of the tribe."
Ibid. The
Montana
opinion added, however, that in certain circumstances, even where
Congress has not expressly authorized it, tribal civil jurisdiction
may encompass nonmembers:
"To be sure, Indian tribes retain inherent sovereign power to
exercise some forms of civil jurisdiction over non- Indians on
their reservations, even on non-Indian fee lands. A tribe may
regulate, through taxation, licensing, or other means, the
activities of nonmembers who enter consensual relationships with
the tribe or its members, through commercial dealing, contracts,
leases, or other arrangements. A tribe may also retain inherent
power to exercise civil authority over the conduct of non- Indians
on fee lands within its reservation when that conduct threatens or
has some direct effect on the political integrity, the economic
security, or the health or welfare of the tribe." Id., at
565-566 (citations and footnote omitted).
The term "non-Indian fee lands," as used in this passage and
throughout the
Montana opinion, refers to reservation land
acquired in fee simple by non-Indian owners. See
id., at
548.
Montana thus described a general rule that, absent a
different congressional direction, Indian tribes lack civil
authority over the conduct of nonmembers on non-Indian land within
a reservation, subject to two exceptions: The first exception
relates to nonmembers who enter consensual relationships with the
tribe or its members; the second concerns activity that directly
affects the tribe's political integrity, economic security, health,
or welfare. The
Montana Court recognized that the Crow Tribe
retained power to limit or forbid hunting or fishing by nonmembers
on land still owned by or held in trust for the Tribe.
Id.,
at 557. The Court held, however, that the Tribe lacked authority to
regulate hunting and fishing by non-Indians on land within the
Tribe's
447
reservation owned in fee simple by non-Indians.
Id., at
564-567.6
Petitioners and the United States as
amicus curiae urge
that
Montana does not control this case. They maintain that
the guiding precedents are
National Farmers and
Iowa
Mutual, and that those decisions establish a rule converse to
Montana's. Whatever
Montana may instruct regarding
regulatory authority, they insist, tribal courts retain
adjudicatory authority in disputes over occurrences inside a
reservation, even when the episode-in-suit involves nonmembers,
unless a treaty or federal statute directs otherwise. Petitioners,
further supported by the United States, argue, alternately, that
Montana does not cover lands owned by, or held
6
Montana's statement of the governing law figured
prominently in
Brendale v.
Confederated Tribes and Bands
of Yakima Nation, 492 U. S. 408 (1989), and
in
South Dakota v.
Bourland, 508 U. S. 679 (1993). The
Court held in
Brendale, 6 to 3, that the Yakima Indian
Nation lacked authority to zone nonmembers' land within an area of
the Tribe's reservation open to the general public; almost half the
land in the area was owned in fee by nonmembers. The Court also
held, 5 to 4, that the Tribe retained authority to zone fee land in
an area of the reservation closed to the general public. No opinion
garnered a majority. Justice White, writing for four Members of the
Court, concluded that, under
Montana, the Tribe lacked
authority to zone fee land in both the open and closed areas of the
reservation. 492 U. S., at 422-432. JUSTICE STEVENS, writing for
two Justices, concluded that the Tribe retained zoning authority
over nonmember land only in the closed area.
Id., at
443-444. Justice Blackmun, writing for three Justices, concluded
that, under
Montana's second exception, the Tribe retained
authority to zone fee land in both the open and the closed areas.
Id., at 456-459.
In
Bourland, the Court considered whether the Cheyenne
River Sioux Tribe could regulate hunting and fishing by non-Indians
in an area within the Tribe's reservation, but acquired by the
United States for the operation of a dam and a reservoir. We
determined, dominantly, that no treaty or statute reserved to the
Tribe regulatory authority over the area, see 508 U. S., at 697,
and we left for resolution on remand the question whether either
Montana exception applied, see 508 U. S., at 695-696; see
also
39 F.3d
868, 869-870
(CA8 1994) (decision of divided panel on
remand that neither
Montana exception justified regulation
by the Tribe).
448
in trust for, a tribe or its members.
Montana holds sway,
petitioners say, only with respect to alienated reservation land
owned in fee simple by non-Indians. We address these arguments in
turn.
A
We begin with petitioners' contention that
National
Farmers and
Iowa Mutual broadly confirm tribal-court
civil jurisdiction over claims against nonmembers arising from
occurrences on any land within a reservation. We read our precedent
differently.
National Farmers and
Iowa Mutual, we
conclude, are not at odds with, and do not displace,
Montana. Both decisions describe an exhaustion rule allowing
tribal courts initially to respond to an invocation of their
jurisdiction; neither establishes tribal-court adjudicatory
authority, even over the lawsuits involved in those cases. Accord,
Brendale v.
Confederated Tribes and Bands of Yakima
Nation, 492 U. S.
408, 427, n. 10 (1989) (opinion of White, J.).
National Farmers involved a federal-court challenge to a
tribal court's jurisdiction over a personal injury action initiated
on behalf of a Crow Indian minor against a Montana school district.
The accident-in-suit occurred when the minor was struck by a
motorcycle in an elementary school parking lot. The school occupied
land owned by the State within the Crow Indian Reservation. See 471
U. S., at 847. The school district and its insurer sought a
federal-court injunction to stop proceedings in the Crow Tribal
Court. See
id., at 848. The District Court granted the
injunction, but the Court of Appeals reversed, concluding that
federal courts lacked subject-matter jurisdiction to entertain such
a case. See
id., at 848-849.
We reversed the Court of Appeals' judgment and held that federal
courts have authority to determine, as a matter "arising under"
federal law, see 28 U. S. C. § 1331, whether a tribal court has
exceeded the limits of its jurisdiction. See 471 U. S., at 852-853.
We further held, however, that the fed-
449
eral suit was premature. Ordinarily, we explained, a federal
court should stay its hand "until after the Tribal Court has had a
full opportunity to determine its own jurisdiction."
Id., at
857. Finding no cause for immediate federal-court intervention,7 we
remanded the case, leaving initially to the District Court the
question "[w]hether the federal action should be dismissed, or
merely held in abeyance pending ... further Tribal Court
proceedings."
Ibid.
Petitioners underscore the principal reason we gave in
National Farmers for the exhaustion requirement there
stated. Tribal-court jurisdiction over non-Indians in criminal
cases is categorically restricted under
Oliphant, we
observed, while in civil matters "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." 471 U.
S., at 855-856 (footnote omitted).
The Court's recognition in
National Farmers that tribal
courts have more extensive jurisdiction in civil cases than in
criminal proceedings, and of the need to inspect relevant statutes,
treaties, and other materials, does not limit
M ontan
a's instruction. As the Court made plain in
Montana, the
general rule and exceptions there announced govern only in the
absence of a delegation of tribal authority by treaty or statute.
In
Montana itself, the Court examined the treaties and
legislation relied upon by the Tribe and explained
7The Court indicated in
National Farmers that exhaustion
is not an unyielding requirement:
"We do not suggest that exhaustion would be required 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." 471 U. S., at
856, n. 21 (citation omitted).
450
why those measures did not aid the Tribe's case. See 450 U. S.,
at 557-563. Only after and in light of that examination did the
Court address the Tribe's assertion of "inherent sovereignty," and
formulate, in response to that assertion,
Montana's general
rule and exceptions to it. In sum, we do not extract from
National Farmers anything more than a prudential exhaustion
rule, in deference to the capacity of tribal courts "to explain to
the parties the precise basis for accepting [or rejecting]
jurisdiction." 471 U. S., at 857.
Iowa Mutual involved an accident in which a member of the
Blackfeet Indian Tribe was injured while driving a cattle truck
within the boundaries of the reservation. 480 U. S., at 11. The
injured member was employed by a Montana corporation that operated
a ranch on reservation land owned by Blackfeet Indians residing on
the reservation. See
ibid. The driver and his wife, also a
Tribe member, sued in the Blackfeet Tribal Court, naming several
defendants: the Montana corporation that employed the driver; the
individual owners of the ranch; the insurer of the ranch; and an
independent insurance adjuster representing the insurer. See
ibid. Over the objection of the insurer and the insurance
adjuster-both companies not owned by members of the Tribe-the
Tribal Court determined that it had jurisdiction to adjudicate the
case. See
id., at 12.
Thereafter, the insurer commenced a federal-court action against
the driver, his wife, the Montana corporation, and the ranch
owners. See
ibid. Invoking federal jurisdiction based on the
parties' diverse citizenship, see 28 U. S. C. § 1332, the insurer
alleged that it had no duty to defend or indemnify the Montana
corporation or the ranch owners because the injuries asserted by
the driver and his wife fell outside the coverage of the applicable
insurance policies. See 480 U. S., at 12-13. The Federal District
Court dismissed the insurer's action for lack of subject-matter
jurisdiction, and the Court of Appeals affirmed. See
id., at
13-14.
451
We reversed. Holding that the District Court had
diversity-of-citizenship jurisdiction over the insurer's complaint,
we remanded, as in
National Farmers, for a determination
whether "the federal action should be stayed pending further Tribal
Court proceedings or dismissed." 480 U. S., at 20, n. 14. The Court
recognized in
Iowa Mutual that the exhaustion rule stated in
National Farmers was "prudential," not jurisdictional. 480
U. S., at 20, n. 14; see also
id., at 16, n. 8 (stating that
"[e]xhaustion is required as a matter of comity, not as a
jurisdictional prerequisite"). Respect for tribal self-government
made it appropriate "to give the tribal court a 'full opportunity
to determine its own jurisdiction.'"
Id., at 16 (quoting
National Farmers, 471 U. S., at 857). That respect, the
Court reasoned, was equally in order whether federal-court
jurisdiction rested on § 1331 (federal question) or on § 1332
(diversity of citizenship). 480 U. S., at 17-18. Elaborating on the
point, the Court stated:
"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 .... In the absence of any indication that
Congress intended the diversity statute to limit the jurisdiction
of the tribal courts, we decline petitioner's invitation to hold
that tribal sovereignty can be impaired in this fashion."
Id., at 18.
Petitioners and the United States fasten upon the Court's
statement that "[c]ivil jurisdiction over such activities
presumptively lies in the tribal courts." Read in context, however,
this language scarcely supports the view that the
452
Montana rule does not bear on tribal-court adjudicatory
authority in cases involving nonmember defendants.
The statement stressed by petitioners and the United States was
made in refutation of the argument that "Congress intended the
diversity statute to limit the jurisdiction of the tribal courts."
480 U. S., at 18. The statement is preceded by three informative
citations. 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," 450 U. S., at 565,
with two prime exceptions,
id., at 565-566. The case cited
second is
Washington v.
Confederated Tribes of Colville
Reservation, 447
U. S. 134 (1980), a decision the
Montana Court listed as
illustrative of the first
Montana exception, applicable to
"nonmembers who enter consensual relationships with the tribe or
its members," 450 U. S., at 565-566; the Court in
Colville
acknowledged inherent tribal authority to tax "non-Indians entering
the reservation to engage in economic activity," 447 U. S., at 153.
The third case noted in conjunction with the
Iowa Mutual
statement is
Fisher v.
District Court of Sixteenth
Judicial Dist. of Mont., 424 U. S. 382 (1976)
(per curiam), a decision the
Montana Court cited in
support of the second
Montana exception, covering
on-reservation activity of nonmembers bearing directly "on the
political integrity, the economic security, or the health or
welfare of the tribe." 450 U. S., at 566. The Court held in
Fisher that a tribal court had exclusive jurisdiction over
an adoption proceeding when all parties were members of the tribe
and resided on its reservation. See 424 U. S., at 383, 389.
State-court jurisdiction over such matters, the Court said,
"plainly would interfere with the powers of self-government
conferred upon the ... Tribe and exercised through the Tribal
Court."
Id., at 387. The Court observed in
Fisher
that state courts may not exercise jurisdiction over disputes
arising out of
453
on-reservation conduct-even over matters involving nonIndians-if
doing so would" 'infring[e] on the right of reservation Indians to
make their own laws and be ruled by them.'"
Id., at 386
(citation omitted).
In light of the citation of
Montana, Colville, and
Fisher, the
Iowa Mutual statement emphasized by
petitioners does not limit the
Montana rule. In keeping with
the precedent to which
Iowa Mutual refers, the statement
stands for nothing more than the unremarkable proposition that,
where tribes possess authority to regulate the activities of
nonmembers, "[c]ivil jurisdiction over [disputes arising out of]
such activities presumptively lies in the tribal courts." 480 U.
S., at 18.
Recognizing that our precedent has been variously interpreted,
we reiterate that
National Farmers and
Iowa Mutual
enunciate only an exhaustion requirement, a "prudential rule," see
Iowa Mutual, 480 U. S., at 20, n. 14, based on comity, see
id., at 16, n. 8. These decisions do not expand or stand
apart from
Montana's instruction on "the inherent sovereign
powers of an Indian tribe." 450 U. S., at 565. While
Montana
immediately involved regulatory authority, the Court broadly
addressed the concept of "inherent sovereignty."
Id., at
563. Regarding activity on non-Indian fee land within a
reservation,
Montana delineated-in a main rule and
exceptions-the bounds of the power tribes retain to exercise "forms
of civil jurisdiction over non-Indians."
Id., at 565. As to
nonmembers, we hold, a tribe's adjudicative jurisdiction does not
exceed its legislative jurisdiction. Absent congressional direction
enlarging tribal-court jurisdiction, we adhere to that
understanding. Subject to controlling provisions in treaties and
statutes, and the two exceptions identified in
Montana, the
civil authority of Indian tribes and their courts with respect to
non-Indian fee lands generally "do[es] not extend to the activities
of nonmembers of the tribe."
Ibid.
454
B
We consider next the argument that
Montana does not
govern this case because the land underlying the scene of the
accident is held in trust for the Three Affiliated Tribes and their
members. Petitioners and the United States point out that in
Montana, as in later cases following
Montana's
instruction-Brendale v.
Confederated Tribes and Bands of
Yakima Nation, 492 U. S. 408 (1989), and
South Dakota v.
Bourland, 508 U. S. 679 (1993),
described
supra, at 447, n. 6-the challenged tribal
authority related to nonmember activity on alienated, non-Indian
reservation land. We "can readily agree," in accord with
Montana, 450 U. S., at 557, that tribes retain considerable
control over nonmember conduct on tribal land.8 On the particular
matter before us, however, we agree with respondents: The
right-of-way North Dakota acquired for the State's highway renders
the 6.59-mile stretch equivalent, for nonmember governance
purposes,9 to alienated, non-Indian land.
Congress authorized grants of rights-of-way over Indian lands in
1948 legislation. Act of Feb. 5, 1948, ch. 45, 62 Stat. 17, 25 U.
S. C. §§ 323-328. A grant over land belonging to a tribe requires
"consent of the proper tribal officials," § 324,
8 Petitioners note in this regard the Court's unqualified
recognition in
Montana 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." 450 U. S., at
557. The question addressed was "the power of the Tribe to regulate
non-Indian fishing and hunting on reservation land owned in fee by
nonmembers of the Tribe."
Ibid.; see Brief for Petitioners
15-16.
9For contextual treatment of rights-of-way over Indian land,
compare 18 U. S. C. § 1151 (defining "Indian country" in criminal
law chapter generally to include "rights-of-way running through [a]
reservation") with §§ 1154(c) and 1156 (term "Indian country," as
used in sections on dispensation and possession of intoxicants,
"does not include ... rights-of-way through Indian
reservations").
455
and the payment of just compensation, § 325.10 The grant
involved in this case was made, pursuant to the federal statute, in
1970. Its purpose was to facilitate public access to Lake
Sakakawea, a federal water resource project under the control of
the Army Corps of Engineers.
In the granting instrument, the United States conveyed to North
Dakota "an easement for a right-of-way for the realignment and
improvement of North Dakota State Highway No.8 over, across and
upon [specified] lands." App. to Brief for Respondents 1. The grant
provides that the State's "easement is subject to any valid
existing right or adverse claim and is without limitation as to
tenure, so long as said easement shall be actually used for the
purpose ... specified."
Id., at 3. The granting instrument
details only one specific reservation to Indian landowners:
"The right is reserved to the Indian land owners, their lessees,
successors, and assigns to construct crossings of the right-of-way
at all points reasonably necessary to the undisturbed use and
occupan[cy] of the premises affected by the right-of-way; such
crossings to be constructed and maintained by the owners or lawful
occupants and users of said lands at their own risk and said
occupants and users to assume full responsibility for avoiding, or
repairing any damage to the right-of-way, which may be occasioned
by such crossings." Id., at 3-4.
Apart from this specification, the Three Affiliated Tribes
expressly reserved no right to exercise dominion or control over
the right-of-way.
Forming part of the State's highway, the right-of-way is open to
the public, and traffic on it is subject to the State's
10 Rights-of-way granted over lands of individual Indians also
require payment of compensation, 25 U. S. C. § 325, and ordinarily
require consent of the individual owners, see § 324 (describing
circumstances in which rights-of-way may be granted without the
consent of owners).
456
controlY The Tribes have consented to, and received payment for,
the State's use of the 6.59-mile stretch for a public highway. They
have retained no gatekeeping right. So long as the stretch is
maintained as part of the State's highway, the Tribes cannot assert
a landowner's right to occupy and exclude. Cf.
Bourland, 508
U. S., at 689 (regarding reservation land acquired by the United
States for operation of a dam and a reservoir, Tribe's loss of
"right of absolute and exclusive use and occupation ... implies the
loss of regulatory jurisdiction over the use of the land by
others"). We therefore align the right-of-way, for the purpose at
hand, with land alienated to non-Indians. Our decision in
Montana, accordingly, governs this case.
III
Petitioners and the United States refer to no treaty or statute
authorizing the Three Affiliated Tribes to entertain
highway-accident tort suits of the kind Fredericks commenced
against A-l Contractors and Stockert. Rather, petitioners and the
United States ground their defense of tribal-court jurisdiction
exclusively on the concept of retained or inherent sovereignty.
Montana, we have explained, is the controlling decision for
this case. To prevail here, petitioners must show that Fredericks'
tribal-court action against nonmembers qualifies under one of
Montana's two exceptions.
The first exception to the
Montana rule covers
"activities of nonmembers who enter consensual relationships with
the
11 We do not here question the authority of tribal police to
patrol roads within a reservation, including rights-of-way made
part of a state highway, and to detain and turn over to state
officers nonmembers stopped on the highway for conduct violating
state law. Cf.
State v.
Schmuck, 121 Wash. 2d 373,
390, 850 P. 2d 1332, 1341 (en banc) (recognizing that a limited
tribal power "to stop and detain alleged offenders in no way
confers an
unlimited authority to regulate the right of the
public to travel on the Reservation's roads"), cert. denied, 510 U.
S. 931 (1993).
457
tribe or its members, through commercial dealing, contracts,
leases, or other arrangements." 450 U. S., at 565. The tortious
conduct alleged in Fredericks' complaint does not fit that
description. The dispute, as the Court of Appeals said, is
"distinctly non-tribal in nature." 76 F. 3d, at 940. It "arose
between two non-Indians involved in [a] run-of-themill [highway]
accident."
Ibid. Although A-1 was engaged in subcontract
work on the Fort Berthold Reservation, and therefore had a
"consensual relationship" with the Tribes, "Gisela Fredericks was
not a party to the subcontract, and the [T]ribes were strangers to
the accident."
Ibid.
Montana's list of cases fitting within the first
exception, see 450 U. S., at 565-566, indicates the type of
activities the Court had in mind:
Williams v.
Lee,
358 U. S. 217,
223 (1959) (declaring tribal jurisdiction exclusive over lawsuit
arising out of on-reservation sales transaction between nonmember
plaintiff and member defendants);
Morris v.
Hitchcock, 194
U. S. 384 (1904) (upholding tribal permit tax on nonmemberowned
livestock within boundaries of the Chickasaw Nation);
Buster
v.
Wright, 135 F.9d
7, 950 (CA8 1905) (upholding Tribe's permit tax on nonmembers
for the privilege of conducting business within Tribe's borders;
court characterized as "inherent" the Tribe's "authority ... to
prescribe the terms upon which noncitizens may transact business
within its borders");
Colville, 447 U. S., at 152-154
(tribal authority to tax on-reservation cigarette sales to
nonmembers "is a fundamental attribute of sovereignty which the
tribes retain unless divested of it by federal law or necessary
implication of their dependent status"). Measured against these
cases, the Fredericks-Stockert highway accident presents no
"consensual relationship" of the qualifying kind.
The second exception to
Montana's general rule concerns
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 566. Undoubtedly, those
458
who drive carelessly on a public highway running through a
reservation endanger all in the vicinity, and surely jeopardize the
safety of tribal members. But if
Montana's second exception
requires no more, the exception would severely shrink the rule.
Again, cases cited in
Montana indicate the character of the
tribal interest the Court envisioned.
The Court's statement of
Montana's second exceptional
category is followed by citation of four cases,
ibid.; each
of those cases raised the question whether a State's (or
Territory's) exercise of authority would trench unduly on tribal
self-government. In two of the cases, the Court held that a State's
exercise of authority would so intrude, and in two, the Court saw
no impermissible intrusion.
The Court referred first to the decision recognizing the
exclusive competence of a tribal court over an adoption proceeding
when all parties belonged to the Tribe and resided on its
reservation. See
Fisher, 424 U. S., at 386;
supra, at
452-453. Next, the Court listed a decision holding a tribal court
exclusively competent to adjudicate a claim by a nonIndian merchant
seeking payment from tribe members for goods bought on credit at an
on-reservation store. See
Williams, 358 U. S., at 220
("[A]bsent governing Acts of Congress, the question [of state-court
jurisdiction over onreservation conduct] has always been whether
the state action infringed on the right of reservation Indians to
make their own laws and be ruled by them."). Thereafter, the Court
referred to two decisions dealing with objections to a county or
territorial government's imposition of a property tax on
non-Indian-owned livestock that grazed on reservation land; in
neither case did the Court find a significant tribal interest at
stake. See
Montana Catholic Missions v.
Missoula
County, 200 U. S.
118, 128-129 (1906) ("the Indians' interest in this kind of
property [livestock], situated on their reservations, was not
sufficient to exempt such property, when owned by private
individuals, from [state or territorial] taxation");
Thomas
v.
Gay, 169 U.
S. 264, 273 (1898) ("[terri-
459
torial] tax put upon the cattle of [non-Indian] lessees is too
remote and indirect to be deemed a tax upon the lands or privileges
of the Indians").
Read in isolation, the
Montana rule's second exception
can be misperceived. Key to its proper application, however, is the
Court's preface: "Indian tribes retain their inherent power [to
punish tribal offenders,] to determine tribal membership, to
regulate domestic relations among members, and to prescribe rules
of inheritance for members .... But [a tribe's inherent power does
not reach] beyond what is necessary to protect tribal
self-government or to control internal relations." 450 U. S., at
564. Neither regulatory nor adjudicatory authority over the state
highway accident at issue is needed to preserve "the right of
reservation Indians to make their own laws and be ruled by them."
Williams, 358 U. S., at 220. The
Montana rule,
therefore, and not its exceptions, applies to this case.
Gisela Fredericks may pursue her case against A-l Contractors
and Stockert in the state forum open to all who sustain injuries on
North Dakota's highway.12 Opening the Tribal Court for her optional
use is not necessary to protect tribal self-government; and
requiring A-l and Stockert to defend against this commonplace state
highway accident claim in an unfamiliar court 13 is not crucial to
"the political integrity, the economic security, or the health or
welfare of the [Three Affiliated Tribes]."
Montana, 450 U.
S., at 566.14
12 See
supra, at 445, n. 4.
13 Within the federal system, when nonresidents are the sole
defendants in a suit filed in state court, the defendants
ordinarily may remove the case to federal court. See 28 U. S. C. §
1441.
14 When, as in this case, it is plain that no federal grant
provides for tribal governance of nonmembers' conduct on land
covered by
Montana's main rule, it will be equally evident
that tribal courts lack adjudicatory authority over disputes
arising from such conduct. As in criminal proceedings, state or
federal courts will be the only forums competent to adjudicate
those disputes. See
National Farmers Union Ins. Coso v.
Crow Tribe, 471 U. S. 845, 854
(1985). Therefore, when tribal-court juris-
460
***
For the reasons stated, the judgment of the Court of Appeals for
the Eighth Circuit is
Affirmed.
diction over an action such as this one is challenged in federal
court, the otherwise applicable exhaustion requirement, see
supra, at 449-450, must give way, for it would serve no
purpose other than delay. Cf.
National Farmers, 471 U. S.,
at 856, n. 21;
supra, at 449, n. 7.
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