New Student Scholarship on Tribal Authority to Zone Nonmember Lands under the Montana 1 Exception

Alexis Applegate has published her note, “Tribal Authority to Zone Nonmember Fee Land Using the First Montana Exception: A Game of Checkers Tribes Can Win” (PDF), in the Boston College Environmental Affairs Law Review.

The abstract:

The modern Congress and executive branch generally recognize that American Indian tribes retain their inherent sovereign authority over people and property within Indian Country unless Congress previously acted to limit that authority. The Supreme Court, however, has incrementally departed from this recognition of inherent sovereign authority by implementing limits on tribal authority over nonmembers and nonmember land. These impediments began with the divestiture of tribal jurisdiction over crimes committed by nonmembers and expanded to limitations on tribal authority to assert civil regulatory and adjudicative jurisdiction over nonmembers. The Supreme Court first applied this theory of implicit divestiture on limitations of tribal civil regulatory authority in the landmark case Montana v. United States. This limitation on tribal sovereignty continues to severely impact the ability of tribal governments to implement successful zoning and comprehensive land use plans withinreservation boundaries. This Note accepts the status of the law for the time being and offers advice and suggestions for tribes to use the language of these decisions to develop consensual relationships with nonmember fee land owners in the creation of comprehensive zoning plans.

Fifth Circuit Briefs in Miss. Band Choctaw Tribal Court Jurisdiction Matter

Here are the briefs so far in Dolgencorp. Inc. v. Mississippi Band of Choctaw Indians:

Dolgen Opening Brief

Tribal Appellee Brief

UPDATE (3/4/13): Dolgencorp Reply Brief

Lower court decision and materials here.

Update in Dollar General v. Mississippi Choctaw: Tribal Jurisdiction Upheld

Here are the materials in Dolgen Corp. v. Mississippi Band of Choctaw Indians (S.D. Miss.):

Dollar General Motion for Summary J

Mississippi Band Opposition

Memorandum Opinion and Order

Materials from a 2008 TRO motion in the same case are here.

Fracking, Tribal Sovereignty, the Montana Test, and the Turtle Mountain Band

The Turtle Mountain Band of Chippewa Indians recently passed a resolution banning fracking on reservation lands. Fracking is incredibly dangerous to the environment (and if Elizabeth Kolbert is writing about it, you can be sure it’s worse than that).

So imagine a scenario where a tribe (like Turtle Mountain) bans fracking, but an oil extraction company purchases fee land within the reservation boundaries and begins fracking. Is this going to pass the Montana test, assuming no written consent under Montana 1? So does it meet the political integrity, economic security, and health/welfare subjectivity of Montana 2? It seems like it must, if this news coverage is to be believed:

Exploration companies are injecting large volumes of water, sand and chemicals into rock formations up to a mile beneath the Blackfeet Indian Reservation in attempts to loosen embedded oil — sometimes using more than a million gallons of fluid per well.

State, tribal and federal regulators of oil development say there has never been an instance of the practice — called hydraulic fracturing — contaminating groundwater in Montana.

Yet Jack Gladstone, an enrolled member of the Blackfeet Tribe and a well-known singer and songwriter, is worried that “fracking” could taint the tribe’s “clean, fresh, cold water.”

He supports more disclosure of the chemicals used in the frack jobs, which he described as an “uncontrolled experiment.”

“And we will live with the consequences of our actions,” Gladstone said.

Potential impacts to drinking water associated with hydraulic fracturing are coming under increased scrutiny nationwide as the federal Environmental Protection Agency begins a study at 350 oil and gas wells in Louisiana, Pennsylvania, North Dakota, Texas and Colorado.

So back to Montana 2. Assuming the above conditions, and a court concludes that Montana 2 is met, and tribal jurisdiction over these hypothetical nonmembers is present, what are the limitations on tribal jurisdiction? Could a tribe simply enjoin the operation (a regulatory/judicial taking)? Could a tribe exercise the power of eminent domain? Seems like these are questions tribes should be asking.

Ethical Implications of the Montana Rule and Exceptions

Later today, I will be speaking at UNM’s “Montana v. United States: Pathmarking the Field of Indian Law for Three Decades and Counting” conference (agenda here; conference website here).

As many readers know, the Montana test limits tribal civil jurisdiction over nonmembers absent two pretty narrow exceptions. It’s fairly clear now (with the benefit of hindsight) that the Supreme Court’s concern over tribal jurisdiction over nonmembers is largely based on property rights. The Court repeatedly has implied a concern that nonmembers could somehow be subject to a loss of their private property. The Montana case, involving tribal hunting and fishing regulations aimed at members and nonmembers on privately-owned land, seemed to be about regulatory takings. Later cases, such as National Farmers Union, the case that established a federal common law right (and a cause of action) to be free of tribal court jurisdiction, came to the court amidst fears that tribes would literally confiscate nonmember property without review at all.

Consider Justice Rehnquist’s separate opinion in National Farmers Union issued prior to the granting of certiorari, where he expressly notes his concern that nonmember property could be seized without due process by tribes:

After the issuance of the mandate of the [Ninth Circuit] Court of Appeals,  tribal officials, at the behest of respondent Sage, seized 12 computer terminals, other computer equipment, and a truck from the school district. The basis for this seizure was said to be the Tribal Court judgment, and no state process was invoked.

If the Court of Appeals is correct in the conclusions which it drew in its opinion, the state of the law respecting review of jurisdictional excesses on the part of Indian tribal courts is indeed anomalous. The Court of Appeals may well be correct that tribal courts are not constrained by the Due Process or Equal Protection Clauses of the Fourteenth Amendment[.]

This excerpt is available on pages 1187-1188 here.

Ironically, very ironically, the Court’s aggressive limitation on tribal court jurisdiction (even where the tribal court provided admirable due process, as in Plains Commerce Bank) under the Montana test, coupled with the Court’s steadfast recognition of tribal immunity, encourages Indian tribes to confiscate tribal property first, and then litigate. Consider the Tenth Circuit’s decision in Miner Electric, where the tribe used a civil forfeiture ordinance to confiscate the property of a nonmember that had likely committed a crime, defend the confiscation in tribal court on the merits, but then raise sovereign immunity in federal courts (successfully). As a direct result of the Court’s very cramped view of tribal jurisdiction over nonmembers, more and more tribes are resorting to civil offense and civil forfeiture statutes as a solution to their inability to regulate offensive and illegal nonmember conduct.

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UNM Symposium on Montana v. United States

From the flyer:

Montana v. United States

Pathmarking the Field of Indian Law for Three Decades and Counting

Sponsored by UNM Law and the UNM Indian Law Program

March 24-25, 2011

Isleta Hard Rock Hotel & Casino, Albuquerque, NM

On March 24, 1981, the United States Supreme Court issued its decision in Montana v. United States, a case that addressed several important issues concerning tribes’ treaty rights, property interests, and sovereign governing authority on Indian reservations. Despite its inauspicious beginnings as a dispute over who controls access to a highly prized trout fishery on the Big Horn River within the exterior boundaries of the Crow Reservation, Montana since has served as juggernaut for a number of unprecedented changes to core doctrines of federal Indian law, all of them detrimental to tribes. The University of New Mexico School of Law and the UNM Indian Law Program will convene a one-and-a-half-day symposium—beginning on Thursday, March 24, 2011, thirty years to the day since the case was decided—to engage law professors, jurists, practicing attorneys, tribal leaders, and Indian law students in a wide-ranging reflection on Montana, including how the litigation originated and unfolded, how the case has impacted Indian law doctrines, and what potential pathways lie ahead for tribes and states in view of Montana’s enormous continuing influence.

Luger v. Luger — State Court Jurisdiction over On-Reservation Property

Here is the North Dakota Supreme Court’s opinion in Luger v. Luger. Here is an excerpt:

Here, although Robert Luger and Raymond Luger reside on the Standing Rock Reservation, they cannot benefit from the principle that states, “‘a reservation Indian’s domicile on the reservation is not an in-state contact which grants jurisdiction to state courts,'” because they are not enrolled members of that reservation. Byzewski v. Byzewski, 429 N.W.2d 394, 397 (N.D. 1988) (quoting State ex rel. Flammond v. Flammond, 621 P.2d 471, 473 (Mont. 1980)). “[Indians who are not members of the reservation on which they reside] are citizens of the State . . . .” Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 186 (1980) (Rehnquist, J., concurring). Therefore, even if an Indian reservation constitutes a dependent sovereign nation separate from a state, Robert Luger and Raymond Luger are not “out-of-state” defendants. Moreover, Robert Luger and Raymond Luger were personally served the summons and complaint by the Sioux County Sheriff on December 30, 2005, and January 3, 2006.

Here is the appellant brief and here is the appellee brief.