Tribal Jurisdiction Fundamentals
Jurisdiction has multiple meanings. In its most basic form, jurisdiction refers to the governmental authority to control people and property. In other contexts, it refers to the authority of a court over a person or company. Under the laws of the United States, Indian tribes are unique. They are recognized as dependent sovereign nations, with powers of self-government and jurisdiction over tribal members and their territory. However, Tribal jurisdiction is limited, and tribal jurisdiction over non-tribal members has been strictly limited to particular situations and facts by the Supreme Court of the United States.
Indian tribes frequently have their own governing body which (e.g. a Tribal Council or Business Council), pass laws, and establish Tribal courts. As a result of their incorporation into the United States and through treaties and other federal statutes, Indian tribes do not have all attributes of sovereignty. See Montana v. United States, 450 U.S. 544, 563 (1981). Instead, Indian tribes have a special kind of limited sovereignty, with restrictions on their jurisdiction over persons who are not members of the tribe. The federal courts have had several opportunities to address these limitations.
The scope of a tribe’s jurisdiction can be divided into two categories — criminal and civil. Criminal jurisdiction defines the authority of a tribe to charge, convict, and punish a person for a criminal offense. Any offenses for which arrest and imprisonment are possible are considered criminal. Civil jurisdiction includes disputes between private parties (such as contract disputes and claims for damage to property or personal injury) and the enforcement of government regulations.
Indian tribes have no criminal jurisdiction over non-Indians. See Oliphant v. Squamish Indian Nation, 435 U.S. 191 (1978). An Indian tribe cannot arrest or incarcerate non-Indians. But by federal statute, an Indian tribe has criminal jurisdiction over an Indian who is a member of a different tribe (25 U.S.C. §1301). Even when a tribe has criminal jurisdiction, federal law limits the sentence that a tribal court can impose to no more than three years. See Tribal Law and Order Act.
In the 1981 Montana decision, the U.S. Supreme Court established the fundamental rule that “the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” The Court defined two limited exceptions to the general rule that Tribes do not have jurisdiction over non-Indians. These exceptions have become to be known as ‘The Montana Exceptions’ and are described below:
1. “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.”
This first Montana Exception is the “consensual relationship” exception. The courts have interpreted it to mean that if a non-Indian enters into a contract with a tribe, or with a Tribal member, that non-Indian has in effect “consented” to have any disputes related to that contract addressed in a tribal court, unless the contract states that no such consent is intended. There must be a connection between the relationship that the non-member entered into and the issue for which the Indian tribe is asserting jurisdiction.
2. “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 second Montana exception is the “health and welfare” exception. Although this exception refers to matters that may impact a tribe’s “health and welfare,” the mere possibility of harm is not sufficient to trigger this exception. Under a 2008 U.S. Supreme Court decision, the impact to a tribe from the threatened activity must be “catastrophic.” See Plains Commerce Bank v. Long Family Land & Cattle Co., 128 S. Ct. 2709, 2726 (2008), quoting COHEN’S HANDBOOK OF FEDERAL INDIAN LAW, § 4.02[c], at 1232, n. 220 (Nell Jessup Newton, et al., eds. 3d ed. 2005).
Despite the presumption that non-members are not subject to tribal jurisdiction, determining whether tribal jurisdiction exists can be a complicated and uncertain task. Some of the factors involved in addressing jurisdictional issues between tribes and non-Indians include, but are not limited to:
- Is the land owned by the tribe, or held in trust for the tribe, or is it owned by a non-Indian? Fee land (i.e. land for which the title is owned outright by a non-Indian) is generally considered to be outside a tribe’s jurisdiction. Land status is regarded as a critical issue.
- Is the person against whom a claim is asserted a tribal member, or a non-Indian, or an Indian who is a member of another tribe?
- Does the tribal law at issue provide for civil or criminal penalties for violations?
- Has the non-member entered into a “consensual relationship” with the tribe or a tribal member?
- Is there a health and welfare impact of the activity at issue that is of a catastrophic proportion?
At the FMC plant, the location of the facility on fee land within the boundaries of the Fort Hall Reservation, has caused many jurisdictional questions to arise. Discussion of those jurisdictional issues is found in the section entitled FMC and Tribal Regulatory Jurisdiction.