In the American Indian Law project draft that will be presented at the 2018 Annual Meeting, two Sections deal with tribal powers over nonmembers – § 34, Civil Regulatory and Adjudicatory Authority over Nonmembers and § 35, Tribal-Court Exhaustion Rule. This is the first of two posts that present the Black Letter and Comments from the draft.

Black Letter and Comments from Tentative Draft No. 2:

§ 34. Civil Regulatory and Adjudicatory Authority over Nonmembers

(a) Indian tribes retain authority to regulate the conduct of nonmembers on Indian lands, except when a federal statute divests an Indian tribe of that authority or when tribal authority conflicts with an overriding national interest.

(b) Indian tribes do not have authority to regulate the conduct of nonmembers on nonmember lands, except that:

(1) An Indian tribe may regulate, through taxation, licensing, or other means, the conduct of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leasing, or other arrangements.

(2) An Indian tribe may regulate the conduct of nonmembers when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.

(c) Indian tribes have authority to adjudicate actions to enforce civil regulations against nonmembers in the circumstances set forth in subsections (a) and (b).

(d) Indian tribes have authority to adjudicate common-law actions against nonmembers when they have civil regulatory authority over nonmembers in the circumstances set forth in subsections (a) and (b).

Comment

a. Nonmember conduct on Indian lands. Nonmember activities on Indian lands implicate both the internal and external sovereignty of Indian tribes. See § 21. The Supreme Court has held that Indian tribes retain the power to tax nonmember activities on Indian lands, to impose zoning regulations on nonmembers on Indian lands, and to regulate nonmember hunting and fishing activities on Indian lands.

As an attribute of their inherent sovereign authority, Indian tribes retain the power to exclude persons from Indian lands and the concomitant power to regulate conditions on their entry and their right to remain on Indian lands. See § 29.

However, in some instances, the Supreme Court has held that certain assertions of tribal power over nonmembers on Indian lands are barred. For example, the Court held that Indian tribes do not retain authority to assert criminal jurisdiction over non-Indians and nonmember Indians (although Congress later restored tribal powers to prosecute nonmember Indians and partially restored tribal powers to prosecute non-Indians, 25 U.S.C. § 1301(4)), or to assert adjudicatory jurisdiction over federal civil-rights claims brought against state officials under 42 U.S.C. § 1983. [See Chapter 5 for a more specific discussion of tribal criminal jurisdiction over non-Indians and nonmember Indians.]

Federal statutes may govern whether Indian tribes may exercise authority over nonmembers and their lands and activities. See § 22. Indian treaties, federal statutes, and executive orders govern ownership and control of Indian lands for the benefit of Indian tribes. See § 15 on Indian lands, § 20 on tribal authority, and § 22 on federal authority.

Illustrations:

1.Tribe A enters into a lease arrangement of tribal trust lands with Company B, a nonmember-owned natural-resources-extraction business. The lease requires B to pay a percentage of the value of the extracted resources to A. A then enacts an excise tax on the value of the extracted resources. B objects on the ground that A has insufficient authority over nonmembers. A’s tax is valid.

2. Tribe C requires that all persons who wish to hunt and fish on tribal trust lands purchase a license from C. Nonmember D purchases a license from State E to hunt and fish. D hunts and fishes on C’s trust lands and is cited by C for failure to be licensed under tribal law. D objects to the citation on the ground that C has insufficient authority over nonmembers. C’s citation is valid.

3. Tribe E licenses tribal member F to sell cigarettes and gasoline on tribal trust lands. E also imposes a sales and use tax on tobacco products and motor fuels sold on trust lands. F sells cigarettes and gasoline to a customer, G, a nonmember. G pays the tribal tax, and then challenges the tax on the ground that E has insufficient authority over nonmembers. E’s tax is valid.

4. H, a tribal member, sues in Tribe I’s tribal court to vindicate rights under the Price-Anderson Act, a federal statute that subjects certain utilities to limited liability for uranium-mining operations and is cognizable in federal district court. The Act operates as a bar on tribal-court jurisdiction over utilities subject to the Act.

b. Nonmember conduct on nonmember lands. Tribal authority over nonmembers on nonmember-held lands within Indian country is more limited. The Supreme Court has held that once Indian lands are alienated to nonmembers, the tribe presumptively loses jurisdiction over that land. However, there are three exceptions to this general rule, detailed in Comment c (consensual-relations exception), Comment d (political integrity, economic security, and health and welfare), and § 20 (congressionally delegated, restored, or recognized authority).

In general, federal statutes that have transferred ownership of tribal lands to nonmembers, or otherwise stripped away tribal control over those lands, have divested tribal authority over the conduct of nonmembers on those lands. See § 16 on nonmember lands, § 20 on tribal authority, and § 22 on federal authority. For example, after the General Allotment Act of 1887, Act of Feb. 8, 1887, 24 Stat. 388, and similar statutes that lifted federal restrictions on alienation on those lands, nonmembers acquired millions of acres of surplus reservation lands in fee, effectively stripping presumptive tribal authority from those lands, subject to the two exceptions in subsection (b)(1)-(2).

Illustration:

5. Nonmember J owns fee land within Tribe K’s reservation boundaries. K requires all persons who wish to hunt and fish within the reservation to acquire a tribal license. J’s land originally was alienated from tribal ownership and control through a federal surplus land act after K’s reservation had been allotted. J purchases a hunting and fishing license from State L and commences hunting and fishing on J’s land. K issues a citation to J for hunting and fishing without a tribal license. K is unable to show that J has consented to tribal law, or that J’s fishing will threaten or have some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. K’s citation is invalid.

c. Consensual-relations exception. The Supreme Court stated in Montana v. United States, “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. 544, 565 (1981). This first exception to the general rule stated in Comment b is based on consent to tribal jurisdiction and authority, usually but not necessarily expressed in a contractual arrangement. Contractual arrangements include, without limitation, employment contracts, business contracts and arrangements, and housing and property leases. Numerous nonmembers, located both on tribal lands and on nonmember lands, have consented to tribal jurisdiction and authority for at least some purposes. Examples include, without limitation, employment relationships, tribal leases, and business contracts.

d. Political integrity, economic security, health or welfare exception. The Supreme Court stated in Montana v. United States, “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.” 450 U.S. 544, 566 (1981). This second exception to the general rule stated in Comment b may be invoked when nonmember activities threaten tribal governments, Indian lands or waters, or tribal members and citizens.

Illustration:

6. Nonmember M is involved in an automobile accident with nonmember N on a state highway located on tribal trust lands on Tribe O’s reservation. Years earlier, in accordance with a federal statute, the United States and O agreed to assign a right-of-way to State P for purposes of constructing, maintaining, and patrolling the highway. N sues M in O’s court. N is unable to show that M has consented to tribal law or jurisdiction. N is also unable to show that M’s activities threaten or have some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. O’s court does not have jurisdiction over M.

Nonmember activities that harm reservation environments, such as illegal dumping and water pollution, have satisfied the second exception to the general rule. Federal statutes that authorize the United States Environmental Protection Agency to treat Indian tribes as states for purposes of enforcing certain federal environmental statutes are grounded in the recognition of this basis for tribal authority over nonmember activity. See 33 U.S.C. § 1377. Nonmember activities that infringe or interfere with tribal-government processes, including, without limitation, the conduct of tribal elections, the provision of tribal services, and the operation of tribal enterprises, also satisfy this exception.

Illustration:

7. Tribe Q is embroiled in a tribal leadership dispute involving two factions. Tribal leader R hires a nonmember investigation firm, S, to break into the tribe’s business office to retrieve sensitive documents. After the leadership dispute is resolved, Q sues S in tribal court for various torts relating to the break-in. S’s retrieval of sensitive tribal documents could be shown to have interfered with the political integrity of the tribe.

e. “Non-Indians” and “nonmembers.” This Section relies on the distinction between tribal members (or citizens) and nonmembers, rather than Indians and non-Indians. In recent decades, the Supreme Court has tended to use “nonmember” to describe conduct and “non-Indian” to describe land ownership, but it has not always adhered to this distinction. Given that the Court has drawn civil jurisdictional lines by reliance upon membership and citizenship rather than Indian status, the Restatement uses the term “nonmembers.” This focus highlights the political and consensual relationship between Indian tribes and tribal members and citizens. See § 16, Comment a.

Matthew L.M. Fletcher

Reporter, American Indian Law Restatement

Matthew L.M. Fletcher is a Professor of Law and Director of the Indigenous Law and Policy Center at Michigan State University College of Law. He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians.  He sits as the Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Grand Traverse Band, the Hoopa Valley Tribe, the Lower Elwha Tribe, the Nottawaseppi Huron Band of Potawatomi Indians, the Pokagon Band of Potawatomi Indians, and the Santee Sioux Tribe of Nebraska.

Wenona T. Singel

Associate Reporter, American Indian Law Restatement

Wenona T. Singel is an Associate Professor of and the Associate Director of the Indigenous Law & Policy Center at Michigan State University College of Law. She is a citizen of the Little Traverse Bay Bands of Odawa Indians, and serves as their Chief Appellate Justice.

Kaighn Smith, Jr.

Associate Reporter, American Indian Law Restatement

Kaighn Smith, Jr., leads Drummond Woodsum’s nationwide Indian Law Practice Group. He has represented Indian nations and their enterprises for more than 25 years in cases that focus on jurisdiction and sovereignty disputes, labor and employment relations, complex transactional disputes, environmental matters, and fishing and water rights.

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