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William P. Zuger

Excerpted from: William P. Zuger, Members Only: A Critique of Montana v. United States , 87 North Dakota Law Review 1-18, 1-4 (2011) (91 Footnotes Omitted)


The renowned turn-of-the-twentieth-century cynic, Ambrose Bierce, defined lawful as [c]ompatible with the will of a judge having jurisdiction. For those of us who aspire to a higher standard, we have the Law Review.

The landmark United States Supreme Court case defining civil jurisdiction of Indian courts is Montana v. United States. Four years after its decision, the Supreme Court, in the case of Strate v. A-1 Contractors, characterized Montana as the pathmarking case concerning tribal civil authority over nonmembers. As we will see, the confusing and convoluted opinion in Montana was anything but pathmarking, and remained unresolved in its scope for nearly a decade. Montana remains confusing to the present day, even to attorneys and judges familiar with Indian law.

The case was brought by the United States for two reasons. First, both in its own right and as trustee for the Crow Tribe of eastern Montana, the United States wanted to quiet title to the bed of the Big Horn River. The Court held title to the river bed had passed from the tribe to the United States, at least in part by the legislative allotment of tribal land (presumably before and after Montana statehood) intended to terminate the reservation, so that the navigable stream bed was transferred in fee title to Montana upon statehood.

Second, the United States wanted to determine the validity of Crow legislation asserting jurisdiction to regulate non-Indian hunting and fishing rights on nonmember fee land within the external boundaries of the Reservation. However, the issue of continuing civil jurisdiction over activities by non-Indians or non-tribal members, the subject of its pathmarking status and the rationale for the distinction between the two classes, was not made clear. In Montana, the Court stated the permissible extent of Indian civil jurisdiction as follows:

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.

This extent is collectively referred to in Indian law as Montana exceptions one and two because they are exceptions to the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe. This article will first discuss the precedent leading up to the decision in Montana and the reasoning by which the Court reached its conclusion. Next, this article will explain subsequent treatment of the case by the Court. Lastly, this article will discuss the practical ramifications of the case upon Indian country.

Montana was decided in the context of several other contemporary cases addressing the permissible limits of Indian jurisdiction. Of these, the criminal jurisdiction case of Oliphant v. Suquamish Indian Tribe was specifically cited as controlling authority for the holding in Montana. The majority opinion of the Court in Montana was clearly prefaced upon the Oliphant decision, as the majority opinion stated: Though Oliphant only determined inherent tribal authority in criminal matters, the principles on which it relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe. However, Oliphant did not make a distinction between members and nonmembers, but rested solely upon the Indian status of the defendant, without regard to whether he or she was a member of the tribe asserting jurisdiction.

The Oliphant Court further relied on the authority of Ex parte Crow Dog. In Ex parte Crow Dog, the Court was faced with almost the inverse issue presented in Montana: whether, prior to the passage of the Major Crimes Act, federal courts had jurisdiction to try Indians who had offended against fellow Indians on reservation land. The Oliphant Court recognized an increased sophistication of several tribal courts that now resemble state counterparts, as well as the disappearance of many of the dangers of exercised jurisdiction over non-Indians due to the passage of the Indian Civil Rights Act of 1968. The Court also acknowledged the tribe-argued need to try non-Indians due to a recognized incidence of non-Indian crime on reservations. The Court noted, however, such considerations of whether Indian tribes should be authorized to try non-Indians are ones properly made by Congress.

Nowhere in Oliphant did the Supreme Court ever address jurisdiction over members, as opposed to Indians. Ultimately, as this article will address, Montana also stands for the odd proposition that the power to invoke civil remedies is less extensive than the power to put one in jail.