Alexander Tallchief Skibine has posted “The Tribal Right to Exclude Non-Tribal Members from Indian-Owned Lands,” forthcoming from the American Indian Law Review, on SSRN.
Here is the abstract:
In 1981, the Supreme Court issued its decision in Montana v. United States, severely restricting the ability of Indian Tribes to assume civil regulatory and adjudicatory jurisdiction over non-tribal members for activities taking place on non-Indian lands within Indian reservations. The Court in Montana stated that “it could readily agree” with the Court of Appeals’ holding that the tribe could regulate the conduct of non-member on tribal lands. Yet, twenty years later, the Court issued its opinion in Nevada v. Hicks holding that in certain circumstances, the jurisdiction of Indian tribes could also be limited even if the activities of the non-members took place on Indian-owned lands.
It has been almost twenty years since Hicks and because of the cryptic and fractured nature of that decision, the federal circuits are divided and still trying to figure out under what circumstances tribal civil jurisdiction over non-members should be restricted when these activities take place on Indian-owned lands.
In this Article, I argue that among all the possible interpretations of Hicks, the one adopted by the Ninth Circuit makes the most sense. Under that interpretation, the so-called Montana framework used to divest tribes of jurisdiction is not applicable to cases where a tribe has retained the right to exclude. I argue that Hicks can be reasonably conceptualized as endorsing the 9th Circuit methodology. However, I also argue that Hicks should have been decided as a state jurisdiction cases and not a tribal divestiture of inherent sovereignty case. Re-imagining Hicks as a state jurisdiction case would not have changed the outcome but would have avoided the last twenty years of confusion surrounding how Hicks should be interpreted.
Here is the opinion in State v. Thompson.
The court’s syllabus:
If a tribal police officer suspects a person who is not an Indian of violating a Minnesota criminal statute on an Indian reservation, and if the victim is not an Indian or there is no victim, the tribal police officer lawfully may detain the person and deliver him or her to state law-enforcement authorities for further investigation and prosecution.
Here are the materials in Pine Bar Ranch LLC v. Interior Board of Indian Appeals:
CA9 unpublished opinion
Pine Bar Opening Brief
Interior Answer Brief
Pine Bar Reply
Lower court opinion here.
Here is that opinion, captioned Pine Bar Ranch LLC v. Acting Director, BIA (D. Mont.):
DCT Order Dismissing Pine Bar Ranch Complaint
Indeed, a contrary result could run afoul of tribal sovereignty. “The power to exercise tribal civil authority over non-Indians derives not only from the tribe’s inherent powers necessary to self-government and territorial management, but also from the power to exclude nonmembers from tribal land.” Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d 587, 592 (9th Cir.1983) (citing Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 141–44, 102 S.Ct. 894, 903–05, 71 L.Ed.2d 21 (1982). Furthermore, it is well settled that a tribe may “place conditions on entry, on continued presence, or on reservation conduct …, [and] nonmember[s] who [enter] the jurisdiction of the tribe [remain] “subject to the risk that the tribe will later exercise [this] sovereign power.” Merrion at 144–45 (footnote omitted).
On January 12, 2011, the Tribes passed Tribal Resolution Number 2010–10277 reaffirming the non-public status of the road and stating that “the unpaved portion of Surrell Creek Road is not a public road or otherwise accessible to any member of the public without the permission of the Eastern Shoshone and Northern Arapaho Tribes.” Doc. No, 20–7.
Especially in view of tribal sovereignty, the BIA had no direct statutory mandate to declare Surrell Creek Road public. Therefore, under the APA, there is no required agency action for this Court to “compel” or “hold unlawful and set aside.” Consequently, the Court is without jurisdiction, no material issue of fact remains and Defendants are entitled to summary judgment as a matter of law.