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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