[2714] Paul A. Banker, Minneapolis, MN, for Petitioner.

David C. Frederick, Washington, D.C., for Respondents.

Curtis E. Gannon, for United States as amicus curiae, by special leave of this Court, supporting the respondents.

Robert V. Atmore, Lindquist & Vennum, P.L.L.P., Minneapolis, MN, David A. Von Wald, Hoven, SD, Paul A. Banker, Lindquist & Vennum, P.L.L.P., Minneapolis, MN, for Petitioner.

James P. Hurley, Bangs, McCullen, Butler, Foye & Simmons, L.L.P., Rapid City, SD, Michael F. Sturley, Lynn E. Blais, Austin, TX, David C. Frederick, Kelly P. Dunbar, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, D.C., Richard A. Guest, Melody L. McCoy, Boulder, CO, for Respondents.

Chief Justice ROBERTS delivered the opinion of the Court.

This case concerns the sale of fee land on a tribal reservation by a non-Indian bank to non-Indian individuals. Following the sale, an Indian couple, customers of the bank who had defaulted on their loans, claimed the bank discriminated against them by offering the land to non-Indians on terms more favorable than those the bank offered to them. The couple sued on that claim in tribal court; the bank contested the court's jurisdiction. The tribal court concluded that it had jurisdiction and proceeded to hear the case. It ultimately ruled against the bank and awarded the Indian couple damages and the right to purchase a portion of the fee land. The question presented is whether the tribal court had jurisdiction to adjudicate a discrimination claim concerning the non-Indian bank's sale of fee land it owned. We hold that it did not.

I

The Long Family Land and Cattle Company, Inc. (Long Company or Company), is a family-run ranching and farming operation incorporated under the laws of South Dakota. Its lands are located on the Cheyenne River Sioux Indian Reservation. Once a massive, 60-million acre affair, the [2715] reservation was appreciably diminished by Congress in the 1880s and at present consists of roughly 11 million acres located in Dewey and Ziebach Counties in north-central South Dakota. The Long Company is a respondent here, along with Ronnie and Lila Long, husband and wife, who together own at least 51 percent of the Company's shares. Ronnie and Lila Long are both enrolled members of the Cheyenne River Sioux Indian Tribe.

The Longs and their Company have been customers for many years at Plains Commerce Bank (Bank), located some 25 miles off the reservation as the crow flies in Hoven, South Dakota. The Bank, like the Long Company, is a South Dakota corporation, but has no ties to the reservation other than its business dealings with tribal members. The Bank made its first commercial loan to the Long Company in 1989, and a series of agreements followed. As part of those agreements, Kenneth Long—Ronnie Long's father and a non-Indian—mortgaged to the Bank 2,230 acres of fee land he owned inside the reservation. At the time of Kenneth Long's death in the summer of 1995, Kenneth and the Long Company owed the Bank $750,000.

In the spring of 1996, Ronnie and Lila Long began negotiating a new loan contract with the Bank in an effort to shore up their Company's flagging financial fortunes and come to terms with their outstanding debts. After several months of back-and-forth, the parties finally reached an agreement in December of that year— two agreements, to be precise. The Company and the Bank signed a fresh loan contract, according to which Kenneth Long's estate deeded over the previously mortgaged fee acreage to the Bank in lieu of foreclosure. App. 104. In return, the Bank agreed to cancel some of the Company's debt and to make additional operating loans. The parties also agreed to a lease arrangement: The Company received a two-year lease on the 2,230 acres, deeded over to the Bank, with an option to purchase the land at the end of the term for $468,000. Id., at 96-103.

It is at this point, the Longs claim, that the Bank began treating them badly. The Longs say the Bank initially offered more favorable purchase terms in the lease agreement, allegedly proposing to sell the land back to the Longs with a 20-year contract for deed. The Bank eventually rescinded that offer, the Longs claim, citing "`possible jurisdictional problems'" that might have been caused by the Bank financing an "`Indian owned entity on the reservation.'" 491 F.3d 878, 882 (C.A.8 2007) (case below).

Then came the punishing winter of 1996-1997. The Longs lost over 500 head of cattle in the blizzards that season, with the result that the Long Company was unable to exercise its option to purchase the leased acreage when the lease contract expired in 1998. Nevertheless, the Longs refused to vacate the property, prompting the Bank to initiate eviction proceedings in state court and to petition the Cheyenne River Sioux Tribal Court to serve the Longs with a notice to quit. In the meantime, the Bank sold 320 acres of the fee land it owned to a non-Indian couple. In June 1999, while the Longs continued to occupy a 960-acre parcel of the land, the Bank sold the remaining 1,910 acres to two other nonmembers.

In July 1999, the Longs and the Long Company filed suit against the Bank in the Tribal Court, seeking an injunction to prevent their eviction from the property and to reverse the sale of the land. They asserted a variety of claims, including breach of contract, bad faith, violation of tribal-law self-help remedies, and discrimination. The discrimination claim alleged [2716] that the Bank sold the land to nonmembers on terms more favorable than those offered the Company. The Bank asserted in its answer that the court lacked jurisdiction and also stated a counterclaim. The Tribal Court found that it had jurisdiction, denied the Bank's motion for summary judgment on its counterclaim, and proceeded to trial. Four causes of action were submitted to the seven-member jury: breach of contract, bad faith, violation of self-help remedies, and discrimination.

The jury found for the Longs on three of the four causes, including the discrimination claim, and awarded a $750,000 general verdict. After denying the Bank's posttrial motion for judgment notwithstanding the verdict by finding again that it had jurisdiction to adjudicate the Longs' claims, the Tribal Court entered judgment awarding the Longs $750,000 plus interest. A later supplemental judgment further awarded the Longs an option to purchase the 960 acres of the land they still occupied on the terms offered in the original purchase option, effectively nullifying the Bank's previous sale of that land to non-Indians.

The Bank appealed to the Cheyenne River Sioux Tribal Court of Appeals, which affirmed the judgment of the trial court. The Bank then filed the instant action in the United States District Court for the District of South Dakota, seeking a declaration that the tribal judgment was null and void because, as relevant here, the Tribal Court lacked jurisdiction over the Longs' discrimination claim. The District Court granted summary judgment to the Longs. The court found tribal court jurisdiction proper because the Bank had entered into a consensual relationship with the Longs and the Long Company. 440 F.Supp.2d 1070, 1077-1078, 1080-1081 (SD 2006). According to the District Court, this relationship brought the Bank within the first category of tribal civil jurisdiction over nonmembers outlined in Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). See 440 F.Supp.2d, at 1077-1078.

The Court of Appeals for the Eighth Circuit affirmed. 491 F.3d 878. The Longs' discrimination claim, the court held, "arose directly from their preexisting commercial relationship with the bank." Id., at 887. When the Bank chose to deal with the Longs, it effectively consented to substantive regulation by the tribe: An antidiscrimination tort claim was just another way of regulating the commercial transactions between the parties. See ibid. In sum, the Tribe had authority to regulate the business conduct of persons who "voluntarily deal with tribal members," including, here, a nonmember's sale of fee land. Ibid.

We granted certiorari, 552 U.S. ___, 128 S.Ct. 829, 169 L.Ed.2d 626 (2008), and now reverse.

II

Before considering the Tribal Court's authority to adjudicate the discrimination claim, we must first address the Longs' contention that the Bank lacks standing to raise this jurisdictional challenge in the first place. Though the Longs raised their standing argument for the first time before this Court, we bear an independent obligation to assure ourselves that jurisdiction is proper before proceeding to the merits. See Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

We begin by noting that whether a tribal court has adjudicative authority over nonmembers is a federal question. See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987); National Farmers Union Ins. Cos. [2717] v. Crow Tribe, 471 U.S. 845, 852-853, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985). If the tribal court is found to lack such jurisdiction, any judgment as to the nonmember is necessarily null and void. The Longs do not contest this settled principle but argue instead that the Bank has suffered no "injury in fact" as required by Article III's case-or-controversy provision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

The Longs appear to recognize their argument is somewhat counterintuitive. They concede the jury found the Bank guilty of discrimination and awarded them $750,000 plus interest. But the Longs contend the jury's damages award was in fact premised entirely on their breach-of-contract rather than on their discrimination claim. The Bank does not presently challenge the breach-of-contract verdict.

In support of their argument, the Longs point to their amended complaint in the Tribal Court. The complaint comprised nine counts. Several of the counts sought damages; the discrimination count did not. As relief for the discrimination claim, the Longs asked to be granted "possession and title to their land." App. 173. The Longs contend that the damage award therefore had nothing to do with the discrimination claim. As a result, a decision from this Court finding no jurisdiction with respect to that claim—the only claim the Bank appeals—would not change anything.

We are not persuaded. The jury verdict form consisted of six special interrogatories, covering each claim asserted against the Bank, with another one covering the amount of damages to be awarded. Id., at 190-192. The damages interrogatory specifically allowed the jury to make an award after finding liability as to any of the individual claims: "If you answered yes to Numbers 1, 3, 4, or 5 what amount of damages should be awarded to the Plaintiffs?" Id., at 192 (emphasis added). The jury found against the Bank on three of the special interrogatories, including number 4, the discrimination claim. The Bank, the jurors found, "intentionally discriminate[d] against the Plaintiffs Ronnie and Lila Long." Id., at 191. The jury then entered an award of $750,000. Id., at 192. These facts establish that the jury could have based its damages award, in whole or in part, on the finding of discrimination.

There is, in addition, the option to purchase. The Longs argue that requiring the Bank to void the sale to nonmembers of a 960-acre parcel and sell that parcel to them instead does not constitute injury-in-fact, because the Tribal Court actually denied the relief the Longs sought for the Bank's discrimination. In its supplemental judgment, the Tribal Court refused to permit the Longs (or the Long Company) to purchase all the land—as they had requested—instead granting an option to purchase only the 960 acres the Longs occupied at the time. See Supplemental Judgment in No. R-120-99, Long Family Land & Cattle Co. v. Maciejewski, (Feb. 18, 2003), App. to Pet. for Cert. A-69 to A-70. Even this partial relief, the Longs insist, was crafted as an equitable remedy for their breach-of-contract claim, see Brief for Respondents 32-34, and in any event the Bank really suffered no harm, because it would gain as much income selling to the Longs as it did selling to the nonmembers, see id., at 34-35.

These arguments do not defeat the Bank's standing. The Longs requested, as a remedy for the alleged discrimination, "possession and title" to the subject land. App. 173. They received an option to acquire a portion of exactly that. See App. to Pet. for Cert. A-69 to A-70. The Tribal Court's silence in its supplemental judgment as to which claim, exactly, the option to purchase was meant to remedy is immaterial. See ibid. Of the four claims presented to the jury, only the discrimination [2718] claim sought deed to the land as relief. See Amended Complaint (Jan. 3, 2000), App. 158, 173. Nor does the fact that the remedial purchase option applied only to a portion of the total parcel eliminate the Bank's injury. The Bank had no obligation to sell the land to the Longs before the Tribal Court's judgment—indeed, the Bank had already sold the acreage to third parties. The Tribal Court judgment effectively nullified a portion of that sale. This judicially imposed burden certainly qualifies as an injury for standing purposes. As for the Longs' speculation that the Bank would make as much money selling the land to them as it did selling the parcel to nonmembers, the argument is entirely beside the point. There is more than adequate injury in being compelled to undo one deed and enter into another—particularly with individuals who had previously defaulted on loans.

Both with respect to damages and the option to purchase, the Bank was injured by the Tribal Court's exercise of jurisdiction over the discrimination claim. Those injuries can be remedied by a ruling in favor of the Bank that the Tribal Court lacked jurisdiction and that its judgment on the discrimination claim is null and void. The ultimate collateral consequence of such a determination, whatever it may be—vacatur of the general damages award, vacatur of the option to purchase, a new trial on the other claims—does not alter the fact that the Bank has shown injury traceable to the challenged action and likely to be redressed by a favorable ruling. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). The Bank has Article III standing to pursue this challenge.

III

A

For nearly two centuries now, we have recognized Indian tribes as "distinct, independent political communities," Worcester v. Georgia, 6 Pet. 515, 559, 8 L.Ed. 483 (1832), qualified to exercise many of the powers and prerogatives of self-government, see United States v. Wheeler, 435 U.S. 313, 322-323, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). We have frequently noted, however, that the "sovereignty that the Indian tribes retain is of a unique and limited character." Id., at 323, 98 S.Ct. 1079. It centers on the land held by the tribe and on tribal members within the reservation. See United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975) (tribes retain authority to govern "both their members and their territory," subject ultimately to Congress); see also Nevada v. Hicks, 533 U.S. 353, 392, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) ("[T]ribes retain sovereign interests in activities that occur on land owned and controlled by the tribe") (O'Connor, J., concurring in part and concurring in judgment).

As part of their residual sovereignty, tribes retain power to legislate and to tax activities on the reservation, including certain activities by nonmembers, see Kerr-McGee Corp. v. Navajo Tribe, 471 U.S. 195, 201, 105 S.Ct. 1900, 85 L.Ed.2d 200 (1985), to determine tribal membership, see Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), and to regulate domestic relations among members, see Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U.S. 382, 387-389, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976) (per curiam). They may also exclude outsiders from entering tribal land. See Duro v. Reina, 495 U.S. 676, 696-697, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990). But tribes do not, as a general matter, possess authority over non-Indians who come within their borders: "[T]he [2719] inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." Montana, at 450 U.S., at 565, 101 S.Ct. 1245. As we explained in Oliphant v. Suquamish Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), the tribes have, by virtue of their incorporation into the American republic, lost "the right of governing ... person[s] within their limits except themselves." Id., at 209, 98 S.Ct. 1011 (emphasis and internal quotation marks omitted).

This general rule restricts tribal authority over nonmember activities taking place on the reservation, and is particularly strong when the nonmember's activity occurs on land owned in fee simple by non-Indians—what we have called "non-Indian fee land." Strate v. A-1 Contractors, 520 U.S. 438, 446, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997) (internal quotation marks omitted). Thanks to the Indian General Allotment Act of 1887, 24 Stat. 388, as amended, 25 U.S.C. § 331 et seq., there are millions of acres of non-Indian fee land located within the contiguous borders of Indian tribes. See Atkinson Trading Co. v. Shirley, 532 U.S. 645, 648, 651, n. 1, 121 S.Ct. 1825, 149 L.Ed.2d 889 (2001). The history of the General Allotment Act and its successor statutes has been well rehearsed in our precedents. See, e.g., Montana, supra, at 558-563, 101 S.Ct. 1245; County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U.S. 251, 254-255, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992). Suffice it to say here that the effect of the Act was to convert millions of acres of formerly tribal land into fee simple parcels, "fully alienable," id., at 264, 112 S.Ct. 683, and "free of all charge or encumbrance whatsoever," 25 U.S.C. § 348 (2000 ed., Supp. V). See F. Cohen, Handbook of Federal Indian Law § 16.03[2][b], pp. 1041-1042 (2005 ed.) (hereinafter Cohen).

Our cases have made clear that once tribal land is converted into fee simple, the tribe loses plenary jurisdiction over it. See County of Yakima, supra, at 267-268, 112 S.Ct. 683 (General Allotment Act permits Yakima County to impose ad valorem tax on fee land located within the reservation); Goudy v. Meath, 203 U.S. 146, 149-150, 27 S.Ct. 48, 51 L.Ed. 130 (1906) (by rendering allotted lands alienable, General Allotment Act exposed them to state assessment and forced sale for taxes); In re Heff, 197 U.S. 488, 502-503, 25 S.Ct. 506, 49 L.Ed. 848 (1905) (fee land subject to plenary state jurisdiction upon issuance of trust patent (superseded by the Burke Act, 34 Stat. 182, 25 U.S.C. § 349) (2000 ed.)). Among the powers lost is the authority to prevent the land's sale, see County of Yakima, supra, at 263, 112 S.Ct. 683 (General Allotment Act granted fee holders power of voluntary sale)—not surprisingly, as "free alienability" by the holder is a core attribute of the fee simple, C. Moynihan, Introduction to Law of Real Property § 3, p. 32 (2d ed.1988). Moreover, when the tribe or tribal members convey a parcel of fee land "to non-Indians, [the tribe] loses any former right of absolute and exclusive use and occupation of the conveyed lands." South Dakota v. Bourland, 508 U.S. 679, 689, 113 S.Ct. 2309, 124 L.Ed.2d 606 (1993) (emphasis added). This necessarily entails the "the loss of regulatory jurisdiction over the use of the land by others." Ibid. As a general rule, then, "the tribe has no authority itself, by way of tribal ordinance or actions in the tribal courts, to regulate the use of fee land." Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U.S. 408, 430, 109 S.Ct. 2994, 106 L.Ed.2d 343 (1989) (opinion of White, J.).

We have recognized two exceptions to this principle, circumstances in which tribes may exercise "civil jurisdiction over [2720] non-Indians on their reservations, even on non-Indian fee lands." Montana, 450 U.S., at 565, 101 S.Ct. 1245. First, "[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." Ibid. Second, a tribe may exercise "civil authority over the conduct of non-Indians on fee lands within the 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." Id., at 566, 101 S.Ct. 1245. These rules have become known as the Montana exceptions, after the case that elaborated them. By their terms, the exceptions concern regulation of "the activities of nonmembers" or "the conduct of non-Indians on fee land."

Given Montana's "`general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe,'" Atkinson, supra, at 651, 121 S.Ct. 1825 (quoting Montana, supra, at 565, 101 S.Ct. 1245), efforts by a tribe to regulate nonmembers, especially on non-Indian fee land, are "presumptively invalid," Atkinson, supra, at 659, 121 S.Ct. 1825. The burden rests on the tribe to establish one of the exceptions to Montana's general rule that would allow an extension of tribal authority to regulate nonmembers on non-Indian fee land. Atkinson, 532 U.S., at 654, 121 S.Ct. 1825. These exceptions are "limited" ones, id., at 647, 121 S.Ct. 1825, and cannot be construed in a manner that would "swallow the rule," id., at 655, 121 S.Ct. 1825, or "severely shrink" it, Strate, 520 U.S., at 458, 117 S.Ct. 1404. The Bank contends that neither exception authorizes tribal courts to exercise jurisdiction over the Longs' discrimination claim at issue in this case. We agree.

B

According to our precedents, "a tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction." Id., at 453, 117 S.Ct. 1404. We reaffirm that principle today and hold that the Tribal Court lacks jurisdiction to hear the Longs' discrimination claim because the Tribe lacks the civil authority to regulate the Bank's sale of its fee land.

The Longs' discrimination claim challenges a non-Indian's sale of non-Indian fee land. Despite the Longs' attempt to recharacterize their claim as turning on the Bank's alleged "failure to pay to respondents loans promised for cattle-raising on tribal trust land," Brief for Respondents 47, in fact the Longs brought their discrimination claim "seeking to have the land sales set aside on the ground that the sale to nonmembers `on terms more favorable' than the bank had extended to the Longs" violated tribal tort law, 491 F.3d, at 882 (quoting Plaintiffs' Amended Complaint, App. 173). See also Brief for United States as Amicus Curiae 7. That discrimination claim thus concerned the sale of a 2,230-acre fee parcel that the Bank had acquired from the estate of a non-Indian.

The status of the land is relevant "insofar as it bears on the application of ... Montana's exceptions to [this] case." Hicks, 533 U.S., at 376, 121 S.Ct. 2304 (SOUTER, J., concurring). The acres at issue here were alienated from the Cheyenne River Sioux's tribal trust and converted into fee simple parcels as part of the Act of May 27, 1908, 35 Stat. 312, commonly called the 1908 Allotment Act. See Brief for Respondents 4, n. 2. While the General Allotment Act provided for the division of tribal land into fee simple parcels [2721] owned by individual tribal members, that Act also mandated that such allotments would be held in trust for their owners by the United States for a period of 25 years—or longer, at the President's discretion—during which time the parcel owners had no authority to sell or convey the land. See 25 U.S.C. § 348 (2000 ed., and Supp. V). The 1908 Act released particular Indian owners from these restrictions ahead of schedule, vesting in them full fee ownership. See § 1, 35 Stat. 312. In 1934, Congress passed the Indian Reorganization Act, 48 Stat. 984, 25 U.S.C. § 461 et seq., which "pu[t] an end to further allotment of reservation land," but did not "return allotted land to pre-General Allotment status, leaving it fully alienable by the allottees, their heirs, and assigns." County of Yakima, 502 U.S., at 264, 112 S.Ct. 683.

The tribal tort law the Longs are attempting to enforce, however, operates as a restraint on alienation. It "set[s] limits on how nonmembers may engage in commercial transactions," 491 F.3d, at 887— and not just any transactions, but specifically nonmembers' sale of fee lands they own. It regulates the substantive terms on which the Bank is able to offer its fee land for sale. Respondents and their principal amicus, the United States, acknowledge that the tribal tort at issue here is a form of regulation. See Brief for Respondents 52; Brief for United States as Amicus Curiae 25-26; see also Riegel v. Medtronic, Inc., 552 U.S. ___, ___, 128 S.Ct. 999, 1008, 169 L.Ed.2d 892 (2008). They argue the regulation is fully authorized by the first Montana exception. They are mistaken.

Montana does not permit Indian tribes to regulate the sale of non-Indian fee land. Montana and its progeny permit tribal regulation of nonmember conduct inside the reservation that implicates the tribe's sovereign interests. Montana expressly limits its first exception to the "activities of nonmembers," 450 U.S., at 565, 101 S.Ct. 1245, allowing these to be regulated to the extent necessary "to protect tribal self-government [and] to control internal relations," id., at 564, 101 S.Ct. 1245. See Big Horn Cty. Elect. Cooperative, Inc. v. Adams, 219 F.3d 944, 951 (C.A.9 2000) ("Montana does not grant a tribe unlimited regulatory or adjudicative authority over a nonmember. Rather, Montana limits tribal jurisdiction under the first exception to the regulation of the activities of nonmembers" (internal quotations omitted; emphasis added)).

We cited four cases in explanation of Montana's first exception. Each involved regulation of non-Indian activities on the reservation that had a discernable effect on the tribe or its members. The first concerned a tribal court's jurisdiction over a contract dispute arising from the sale of merchandise by a non-Indian to an Indian on the reservation. See Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). The other three involved taxes on economic activity by nonmembers. See Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 152-153, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980) (in cases where "the tribe has a significant interest in the subject matter," tribes retain "authority to tax the activities or property of non-Indians taking place or situated on Indian lands"); Morris v. Hitchcock, 194 U.S. 384, 393, 24 S.Ct. 712, 48 L.Ed. 1030 (1904) (upholding tribal taxes on nonmembers grazing cattle on Indian-owned fee land within tribal territory); Buster v. Wright, 135 F. 947, 950 (C.A.8 1905) (Creek Nation possessed power to levy a permit tax on nonmembers for the privilege of doing business within the reservation).

[2722] Our cases since Montana have followed the same pattern, permitting regulation of certain forms of nonmember conduct on tribal land. We have upheld as within the tribe's sovereign authority the imposition of a severance tax on natural resources removed by nonmembers from tribal land. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982). We have approved tribal taxes imposed on leasehold interests held in tribal lands, as well as sales taxes imposed on nonmember businesses within the reservation. See Kerr-McGee, 471 U.S., at 196-197, 105 S.Ct. 1900. We have similarly approved licensing requirements for hunting and fishing on tribal land. See New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 337, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983).

Tellingly, with only "one minor exception, we have never upheld under Montana the extension of tribal civil authority over nonmembers on non-Indian land." Hicks, supra, at 360, 121 S.Ct. 2304 (emphasis added). See Atkinson, 532 U.S., at 659, 121 S.Ct. 1825 (Tribe may not tax nonmember activity on non-Indian fee land); Strate, 520 U.S., at 454, 457, 117 S.Ct. 1404 (tribal court lacks jurisdiction over tort suit involving an accident on non-tribal land); Montana, supra, at 566, 101 S.Ct. 1245 (Tribe has no authority to regulate nonmember hunting and fishing on non-Indian fee land). The exception is Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343, and even it fits the general rubric noted above: In that case, we permitted a tribe to restrain particular uses of non-Indian fee land through zoning regulations. While a six-Justice majority held that Montana did not authorize the Yakima Nation to impose zoning regulations on non-Indian fee land located in an area of the reservation where nearly half the acreage was owned by nonmembers, 492 U.S., at 430-431, 109 S.Ct. 2994 (opinion of White, J.); id., at 444-447, 109 S.Ct. 2994 (opinion of STEVENS, J.), five Justices concluded that Montana did permit the Tribe to impose different zoning restrictions on nonmember fee land isolated in "the heart of [a] closed portion of the reservation," 492 U.S., at 440, 109 S.Ct. 2994 (opinion of STEVENS, J.), though the Court could not agree on a rationale, see id., at 443-444, 109 S.Ct. 2994 (same); id., at 458-459, 109 S.Ct. 2994 (opinion of Blackmun, J.).

But again, whether or not we have permitted regulation of nonmember activity on non-Indian fee land in a given case, in no case have we found that Montana authorized a tribe to regulate the sale of such land. Rather, our Montana cases have always concerned nonmember conduct on the land. See, e.g., Hicks, 533 U.S., at 359, 121 S.Ct. 2304 (Montana and Strate concern "tribal authority to regulate nonmembers' activities on [fee] land" (emphasis added)); Atkinson, 532 U.S., at 647, 121 S.Ct. 1825 ("conduct of nonmembers on non-Indian fee land"); id., at 660, 121 S.Ct. 1825 (SOUTER, J., concurring) ("the activities of nonmembers"); Bourland, 508 U.S., at 689, 113 S.Ct. 2309 ("use of the land"); Brendale, supra, at 430, 109 S.Ct. 2994 ("use of fee land"); Montana, supra, at 565, 101 S.Ct. 1245 (first exception covers "activities of nonmembers").^[1]

[2723] The distinction between sale of the land and conduct on it is well-established in our precedent, as the foregoing cases demonstrate, and entirely logical given the limited nature of tribal sovereignty and the liberty interests of nonmembers. By virtue of their incorporation into the United States, the tribe's sovereign interests are now confined to managing tribal land, see Worcester, 6 Pet., at 561, 8 L.Ed. 483 (persons are allowed to enter Indian land only "with the assent of the [tribal members] themselves"), "protect[ing] tribal self-government," and "control[ling] internal relations," see Montana, supra, at 564, 101 S.Ct. 1245. The logic of Montana is that certain activities on non-Indian fee land (say, a business enterprise employing tribal members) or certain uses (say, commercial development) may intrude on the internal relations of the tribe or threaten tribal self-rule. To the extent they do, such activities or land uses may be regulated. See Hicks, supra, at 361, 121 S.Ct. 2304 ("Tribal assertion of regulatory authority over nonmembers must be connected to that right of the Indians to make their own laws and be governed by them"). Put another way, certain forms of nonmember behavior, even on non-Indian fee land, may sufficiently affect the tribe as to justify tribal oversight. While tribes generally have no interest in regulating the conduct of nonmembers, then, they may regulate nonmember behavior that implicates tribal governance and internal relations.

The regulations we have approved under Montana all flow directly from these limited sovereign interests. The tribe's "traditional and undisputed power to exclude persons" from tribal land, Duro, 495 U.S., at 696, 110 S.Ct. 2053, for example, gives it the power to set conditions on entry to that land via licensing requirements and hunting regulations. See Bourland, supra, at 691, n. 11, 113 S.Ct. 2309 ("Regulatory authority goes hand in hand with the power to exclude"). Much taxation can be justified on a similar basis. See Colville, 447 U.S., at 153, 100 S.Ct. 2069 (taxing power "may be exercised over ... nonmembers, so far as such nonmembers may accept privileges of trade, residence, etc., to which taxes may be attached as conditions" (quoting Powers of Indian Tribes, 55 I.D. 14, 46 (1934), emphasis added)). The power to tax certain nonmember activity can also be justified as "a necessary instrument of self-government and territorial management," Merrion, 455 U.S., at 137, 102 S.Ct. 894, insofar as taxation "enables a tribal government to raise revenues for its essential services," to pay its employees, to provide police protection, and in general to carry out the functions that keep peace and order, ibid.

Justice GINSBURG wonders why these sorts of regulations are permissible under Montana but regulating the sale of fee land is not. See post, at 2729-2730. The reason is that regulation of the sale of non-Indian fee land, unlike the above, cannot be justified by reference to the tribe's sovereign interests. By definition, fee land owned by nonmembers has already been removed from the tribe's immediate control. See Strate, 520 U.S., at 456, 117 S.Ct. 1404 (tribes lack power to "assert [over non-Indian fee land] a landowner's right to occupy and exclude"). It has already been alienated from the tribal trust. The tribe cannot justify regulation of such land's sale by reference to its power to superintend tribal land, then, because non-Indian fee parcels have ceased to be tribal land.

Nor can regulation of fee land sales be justified by the tribe's interests in protecting internal relations and self-government. Any direct harm to its political integrity that the tribe sustains as a result of fee land sale is sustained at the point the land [2724] passes from Indian to non-Indian hands. It is at that point the tribe and its members lose the ability to use the land for their purposes. Once the land has been sold in fee simple to non-Indians and passed beyond the tribe's immediate control, the mere resale of that land works no additional intrusion on tribal relations or self-government. Resale, by itself, causes no additional damage.

This is not to suggest that the sale of the land will have no impact on the tribe. The uses to which the land is put may very well change from owner to owner, and those uses may well affect the tribe and its members. As our cases bear out, see supra, at 2721-2723, the tribe may quite legitimately seek to protect its members from noxious uses that threaten tribal welfare or security, or from nonmember conduct on the land that does the same. But the key point is that any threat to the tribe's sovereign interests flows from changed uses or nonmember activities, rather than from the mere fact of resale. The tribe is able fully to vindicate its sovereign interests in protecting its members and preserving tribal self-government by regulating nonmember activity on the land, within the limits set forth in our cases. The tribe has no independent interest in restraining alienation of the land itself, and thus, no authority to do so.

Not only is regulation of fee land sale beyond the tribe's sovereign powers, it runs the risk of subjecting nonmembers to tribal regulatory authority without commensurate consent. Tribal sovereignty, it should be remembered, is "a sovereignty outside the basic structure of the Constitution." United States v. Lara, 541 U.S. 193, 212, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004) (KENNEDY, J., concurring in judgment). The Bill of Rights does not apply to Indian tribes. See Talton v. Mayes, 163 U.S. 376, 382-385, 16 S.Ct. 986, 41 L.Ed. 196 (1896). Indian courts "differ from traditional American courts in a number of significant respects." Hicks, 533 U.S., at 383, 121 S.Ct. 2304 (SOUTER, J., concurring). And nonmembers have no part in tribal government—they have no say in the laws and regulations that govern tribal territory. Consequently, those laws and regulations may be fairly imposed on nonmembers only if the nonmember has consented, either expressly or by his actions. Even then, the regulation must stem from the tribe's inherent sovereign authority to set conditions on entry, preserve tribal self-government, or control internal relations. See Montana, 450 U.S., at 564, 101 S.Ct. 1245.

In commenting on the policy goals Congress adopted with the General Allotment Act, we noted that "[t]here is simply no suggestion" in the history of the Act "that Congress intended that the non-Indians who would settle upon alienated allotted lands would be subject to tribal regulatory authority." Id., at 560, n. 9, 101 S.Ct. 1245. In fact, we said it "defies common sense to suppose" that Congress meant to subject non-Indians to tribal jurisdiction simply by virtue of the nonmember's purchase of land in fee simple. Ibid. If Congress did not anticipate tribal jurisdiction would run with the land, we see no reason why a nonmember would think so either.

The Longs point out that the Bank in this case could hardly have been surprised by the Tribe's assertion of regulatory power over the parties' business dealings. The Bank, after all, had "lengthy on-reservation commercial relationships with the Long Company." Brief for Respondents 40. Justice GINSBURG echoes this point. See post, at 2728-2729. But as we have emphasized repeatedly in this context, when it comes to tribal regulatory authority, it is not "in for a penny, in for a Pound." Atkinson, 532 U.S., at 656, 121 [2725] S.Ct. 1825 (internal quotation marks omitted). The Bank may reasonably have anticipated that its various commercial dealings with the Longs could trigger tribal authority to regulate those transactions—a question we need not and do not decide. But there is no reason the Bank should have anticipated that its general business dealings with respondents would permit the Tribe to regulate the Bank's sale of land it owned in fee simple.

Even the courts below recognized that the Longs' discrimination claim was a "novel" one. 491 F.3d, at 892. It arose "directly from Lakota tradition as embedded in Cheyenne River Sioux tradition and custom," including the Lakota "sense of justice, fair play and decency to others." 440 F.Supp.2d, at 1082 (internal quotation marks omitted). The upshot was to require the Bank to offer the same terms of sale to a prospective buyer who had defaulted in several previous transactions with the Bank as it offered to a different buyer without such a history of default. This is surely not a typical regulation. But whatever the Bank anticipated, whatever "consensual relationship" may have been established through the Bank's dealing with the Longs, the jurisdictional consequences of that relationship cannot extend to the Bank's subsequent sale of its fee land.

The Longs acknowledge, if obliquely, the critical importance of land status. They emphasize that the Long Company "operated on reservation fee and trust lands," Brief for Respondents 40, and n. 24, 41, and note that "the fee land at issue in the lease-repurchase agreement" had previously belonged to a tribal member, id., at 47. These facts, however, do not change the status of the land at the time of the challenged sale. Regardless of where the Long Company operated, the fee land whose sale the Longs seek to restrain was owned by the Bank at the relevant time. And indeed, before that, it was owned by Kenneth Long, a non-Indian. See Hicks, supra, at 382, n. 4, 121 S.Ct. 2304 (SOUTER, J., concurring) ("Land status ... might well have an impact under one (or perhaps both) of the Montana exceptions"), Atkinson, supra, at 659, 121 S.Ct. 1825 (SOUTER, J., concurring) (status of territory as "tribal or fee land may have much to do (as it does here) with the likelihood (or not) that facts will exist that are relevant under the [Montana] exceptions").

The Longs attempt to salvage their position by arguing that the discrimination claim is best read to challenge the Bank's whole course of commercial dealings with the Longs stretching back over a decade— not just the sale of the fee land. Brief for Respondents 44. That argument is unavailing. The Longs are the first to point out that their breach-of-contract and bad-faith claims, which do involve the Bank's course of dealings, are not before this Court. Ibid. Only the discrimination claim is before us and that claim is tied specifically to the sale of the fee land.^[2] Ibid. Count six of the Longs' amended complaint in the Tribal Court alleges that "[i]n selling the Longs' land, [Plains Commerce Bank] unfairly discriminated against the [2726] Company and the Longs." App. 172-173 (emphasis added). As relief, the Longs claimed they "should get possession and title to their land back." Id., at 173. The Longs' discrimination claim, in short, is an attempt to regulate the terms on which the Bank may sell the land it owns.^[3]

Such regulation is outside the scope of a tribe's sovereign authority. Justice GINSBURG asserts that if "[t]he Federal Government and every State, county, and municipality can make nondiscrimination the law governing ... real property transactions," tribes should be able to do so as well. Post, at 2731. This argument completely overlooks the very reason cases like Montana and this one arise: Tribal jurisdiction, unlike the jurisdiction of the other governmental entities cited by Justice GINSBURG, generally does not extend to nonmembers. See Montana, supra, at 565, 101 S.Ct. 1245. The sovereign authority of Indian tribes is limited in ways state and federal authority is not. Contrary to Justice GINSBURG's suggestion, that bedrock principle does not vary depending on the desirability of a particular regulation.

Montana provides that, in certain circumstances, tribes may exercise authority over the conduct of nonmembers, even if that conduct takes place on non-Indian fee land. But conduct taking place on the land and the sale of the land are two very different things. The Cheyenne River Sioux Tribe lost the authority to restrain the sale of fee simple parcels inside their borders when the land was sold as part of the 1908 Allotment Act. Nothing in Montana gives it back.

C

Neither the District Court nor the Court of Appeals relied for its decision on the second Montana exception. The Eighth Circuit declined to address the exception's applicability, see 491 F.3d, at 888, n. 7, while the District Court strongly suggested in passing that the second exception would not apply here, see 440 F.Supp.2d, at 1077. The District Court is correct, for the same reasons we explained above. The second Montana exception stems from the same sovereign interests that give rise to the first, interests that do not reach to regulating the sale of non-Indian fee land.

The second exception authorizes the tribe to exercise civil jurisdiction when non-Indians'"conduct" menaces the "political integrity, the economic security, or the health or welfare of the tribe." Montana, 450 U.S., at 566, 101 S.Ct. 1245. The conduct must do more than injure the tribe, it must "imperil the subsistence" of the tribal community. Ibid. One commentator has noted that "th[e] elevated threshold for application of the second Montana exception suggests that tribal power must be necessary to avert catastrophic consequences." Cohen § 4.02[3][c], at 232, n. 220.

The sale of formerly Indian-owned fee land to a third party is quite possibly disappointing to the tribe, but cannot fairly be called "catastrophic" for tribal self-government. See Strate, 520 U.S., at 459, 117 S.Ct. 1404. The land in question here has been owned by a non-Indian party for at least 50 years, Brief for Respondents 4, during which time the project of tribal self-government has proceeded without interruption. [2727] The land's resale to another non-Indian hardly "imperil[s] the subsistence or welfare of the tribe." Montana, supra, at 566, 101 S.Ct. 1245. Accordingly, we hold the second Montana exception inapplicable in this case.

D

Finally, we address the Longs' argument that the Bank consented to tribal court jurisdiction over the discrimination claim by seeking the assistance of tribal courts in serving a notice to quit. Brief for Respondents 44-46. When the Longs refused to vacate the land, the Bank initiated eviction proceedings in South Dakota state court. The Bank then asked the Tribal Court to appoint a process server able to reach the Longs. Seeking the Tribal Court's aid in serving process on tribal members for a pending state-court action does not, we think, constitute consent to future litigation in the Tribal Court. Notably, when the Longs did file their complaint against the Bank in Tribal Court, the Bank promptly contended in its answer that the court lacked jurisdiction. Brief for United States as Amicus Curiae 7. Under these circumstances, we find that the Bank did not consent by its litigation conduct to tribal court jurisdiction over the Longs' discrimination claim.

* * *

The judgment of the Court of Appeals for the Eighth Circuit is reversed.

It is so ordered.

Justice GINSBURG, with whom Justice STEVENS, Justice SOUTER, and Justice BREYER join, concurring in part, concurring in the judgment in part, and dissenting in part.

I agree with the Court that petitioner Plains Commerce Bank (Bank) has Article III standing to contest the jurisdiction of the Cheyenne River Sioux Tribal Court, and therefore join Part II of the Court's opinion. Further, I take no issue with the Court's jurisdictional ruling insofar as it relates to the Tribal Court's supplemental judgment. In that judgment, the Tribal Court ordered the Bank to give Ronnie and Lila Long an option to repurchase fee land the Bank had already contracted to sell to non-Indian individuals. See App. to Pet. for Cert. A-69 to A-71.

I dissent from the Court's decision, however, to the extent that it overturns the Tribal Court's principal judgment awarding the Longs damages in the amount of $750,000 plus interest. See App. 194-196. That judgment did not disturb the Bank's sale of fee land to non-Indians. It simply responded to the claim that the Bank, in its on-reservation commercial dealings with the Longs, treated them disadvantageously because of their tribal affiliation and racial identity. A claim of that genre, I would hold, is one the Tribal Court is competent to adjudicate. As the Court of Appeals correctly understood, the Longs' case, at heart, is not about "the sale of fee land on a tribal reservation by a non-Indian bank to non-Indian individuals," ante, at 2714. "Rather, this case is about the power of the Tribe to hold nonmembers like the bank to a minimum standard of fairness when they voluntarily deal with tribal members." 491 F.3d 878, 887 (C.A.8 2007) (case below).

As the basis for their discrimination claim, the Longs essentially asserted that the Bank offered them terms and conditions on land-financing transactions less favorable than the terms and conditions offered to non-Indians. Although the Tribal Court could not reinstate the Longs as owners of the ranch lands that had been in their family for decades, that court could hold the Bank answerable in damages, [2728] the law's traditional remedy for the tortious injury the Longs experienced.

I

In the pathmarking case, Montana v. United States, 450 U.S. 544, 564-565, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), this Court restated that, absent a treaty or statute, Indian tribes generally lack authority to regulate the activities of nonmembers. While stating the general rule, Montana also identified two exceptions:

"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. 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." Id., at 565-566 [450 U.S. 544] (citations omitted).

These two exceptions, Montana explained, recognize that "Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands." Id., at 565, 101 S.Ct. 1245 (emphasis added).

Montana specifically addressed the regulatory jurisdiction of tribes. See id., at 557, 101 S.Ct. 1245. This Court has since clarified that when a tribe has authority to regulate the activity of nonmembers, tribal courts presumably have adjudicatory authority over disputes arising out of that activity. See Strate v. A-1 Contractors, 520 U.S. 438, 453, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997) (as to nonmembers, a tribe's adjudicative jurisdiction coincides with its legislative jurisdiction). In my view, this is a clear case for application of Montana's first or "consensual relationships" exception. I therefore do not reach the Longs' alternative argument that their complaint also fits within Montana's second exception.

Ronnie and Lila Long, husband and wife and owners of the Long Family Land and Cattle Company (Long Company), are enrolled members of the Cheyenne River Sioux Tribe. Although the Long Company was incorporated in South Dakota, the enterprise "was overwhelmingly tribal in character, as were its interactions with the bank." 491 F.3d, at 886. All Long Company property was situated—and all operations of the enterprise occurred—within the Cheyenne River Sioux Indian Reservation. The Long Company's articles of incorporation required Indian ownership of a majority of the corporation's shares. This requirement reflected the Long Company's status as an Indian-owned business entity eligible for Bureau of Indian Affairs (BIA) loan guarantees. See 25 CFR § 103.25 (2007) (requiring at least 51% Indian ownership). Loan guarantees are among the incentives the BIA offers to promote the development of on-reservation Indian enterprises. The Long Company "was formed to take advantage of [the] BIA incentives." 491 F.3d, at 886.

The history of the Bank's commercial dealings with the Long Company and the Long family is lengthy and complex. The business relationship dates from 1988, when Ronnie Long's parents—one of them a member of the Tribe—mortgaged some 2,230 acres of land to the Bank to gain working capital for the ranch. As security for the Bank's loans over the years, the Longs mortgaged both their land and their personal property. The Bank benefited significantly from the Long Company's status as an Indian-owned business entity, for the BIA loan guarantees "allowed [it] [2729] to greatly reduce its lending risk." Ibid. Eventually, the Bank collected from the BIA almost $400,000, more than 80% of the net losses resulting from its loans to the Longs. See 440 F.Supp.2d 1070, 1078 (SD 2006) (case below); App. 135-138.

The discrimination claim here at issue rests on the allegedly unfair conditions the Bank exacted from the Longs when they sought loans to sustain the operation of their ranch. Following the death of Ronnie's father, the Bank and the Longs entered into an agreement under which the mortgaged land would be deeded over to the Bank in exchange for the Bank's canceling some debt and making additional loans to keep the ranch in business. The Longs were given a two-year lease on the property with an option to buy the land back when the lease term expired. Negotiating sessions for these arrangements were held at the Tribe's on-reservation offices and were facilitated by tribal officers and BIA employees. 491 F.3d, at 881.

Viewing the deal they were given in comparative light, the Longs charged that the Bank offered to resell ranch land to them on terms less advantageous than those the Bank offered in similar dealings with non-Indians. Their claim, all courts prior to this one found, fit within the Montana exception for "activities of nonmembers who enter [into] ... commercial dealing, contracts, leases, or other arrangements" with tribal members. 450 U.S., at 565, 101 S.Ct. 1245. Cf. Strate, 520 U.S., at 457, 117 S.Ct. 1404 (citing Williams v. Lee, 358 U.S. 217, 223, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959)) (Montana's consensual-relationships exception justifies tribal-court adjudication of claims "arising out of on-reservation sales transaction between nonmember plaintiff and member defendants"). I am convinced that the courts below got it right.

This case, it bears emphasis, involves no unwitting outsider forced to litigate under unfamiliar rules and procedures in tribal court. Cf. Nevada v. Hicks, 533 U.S. 353, 382-385, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) (SOUTER, J., concurring). Hardly a stranger to the tribal court system, the Bank regularly filed suit in that forum. See Brief for Cheyenne River Sioux Tribe as Amicus Curiae 29-31. The Bank enlisted tribal-court aid to serve notice to quit on the Longs in connection with state-court eviction proceedings. The Bank later filed a counterclaim for eviction and motion for summary judgment in the case the Longs commenced in the Tribal Court. In its summary judgment motion, the Bank stated, without qualification, that the Tribal Court "ha[d] jurisdiction over the subject matter of this action." App. 187-188. Had the Bank wanted to avoid responding in tribal court or the application of tribal law, the means were readily at hand: The Bank could have included forum selection, choice-of-law, or arbitration clauses in its agreements with the Longs, which the Bank drafted. See Brief for Respondents 42.

II

Resolving this case on a ground neither argued nor addressed below, the Court holds that a tribe may not impose any regulation—not even a nondiscrimination requirement—on a bank's dealings with tribal members regarding on-reservation fee lands. See ante, at 2714, 2725-2726. I do not read Montana or any other case so to instruct, and find the Court's position perplexing.

First, I question the Court's separation of land sales tied to lending activities from other "activities of nonmembers who enter consensual relationships with the tribe or its members," Montana, 450 U.S., at 565, 101 S.Ct. 1245. Sales of land—and related [2730] conduct—are surely "activities" within the ordinary sense of the word. See, e.g., County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U.S. 251, 269, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992) ("The excise tax remains a tax upon the Indian's activity of selling the land...." (emphasis added)). Cf. 14 Oxford English Dictionary 388 (2d ed.1989) (defining "sale" as "[t]he action or an act of selling" (def. 1(a))).

Second, the Court notes the absence of any case "f[i]nd[ing] that Montana authorized a tribe to regulate the sale of [non-Indian fee] land." Ante, at 2722. But neither have we held that Montana prohibits all such regulation. If the Court in Montana, or later cases, had intended to remove land sales resulting from loan transactions entirely from tribal governance, it could have spoken plainly to that effect. Instead, Montana listed as examples of consensual relationships that tribes might have authority to regulate "commercial dealing, contracts, [and] leases." 450 U.S., at 565, 101 S.Ct. 1245. Presumably, the reference to "leases" includes leases of fee land. But why should a nonmember's lease of fee land to a member be differentiated, for Montana exception purposes, from a sale of the same land? And why would the enforcement of an antidiscrimination command be less important to tribal self-rule and dignity, cf. ante, at 2723-2724, when the command relates to land sales than when it relates to other commercial relationships between nonmembers and members?

III

As earlier observed, see supra, at 2727, I agree that the Tribal Court had no authority to grant the Longs an option to purchase the 960-acre parcel the Bank had contracted to sell to individuals unaffiliated with the Tribe. The third parties' contracts with the Bank cannot be disturbed based on Montana's exception for "the activities of nonmembers who enter consensual relationships with the tribe or its members." 450 U.S., at 565, 101 S.Ct. 1245. Although the Tribal Court overstepped in its supplemental judgment ordering the Bank to give the Longs an option to purchase land third parties had contracted to buy, see App. to Pet. for Cert. A-69 to A-71, it scarcely follows that the Tribal Court lacked jurisdiction to adjudicate the Longs' discrimination claim, and to order in its principal judgment, see App. 194-196, monetary relief.^[4]

The Court recognizes that "[t]he Bank may reasonably have anticipated that its various commercial dealings with the Longs could trigger tribal authority to regulate those transactions." Ante, at 2725. Today's decision, furthermore, purports to leave the Longs' breach-of-contract and bad-faith claims untouched. Ante, at 2725, n. 2. Noting that the Bank "does not presently challenge the breach-of-contract verdict," ante, at 2717, the Court emphasizes that "[o]nly the discrimination claim is before us and that claim is tied specifically to the sale of the fee land," ante, at 2725. But if the Tribal Court is a proper forum for the Longs' claim that the Bank has broken its promise or acted deceptively in the land-financing transactions [2731] at issue, one is hard put to understand why the Tribe could not likewise enforce in its courts a law that commands: Thou shall not discriminate against tribal members in the terms and conditions you offer them in those same transactions. The Federal Government and every State, county, and municipality can make nondiscrimination the law governing contracts generally, and real property transactions in particular. See, e.g., 42 U.S.C. §§ 1981, 1982. Why should the Tribe lack comparable authority to shield its members against discrimination by those engaging in on-reservation commercial relationships—including land-secured lending— with them?

A

The "fighting issue" in the tribal trial court, the Eighth Circuit underscored, "was whether the bank denied the Longs favorable terms on a deal solely on the basis of their race or tribal affiliation." 491 F.3d, at 891. The Longs maintained that the Bank initially offered them more favorable terms, proposing to sell the mortgaged land back to them with a 20-year contract for deed. Thereafter, the Bank sent a letter to Ronnie Long withdrawing its initial offer, "citing `possible jurisdictional problems' posed by the Long Company's status as an `Indian owned entity on the reservation.'" Id., at 882 (quoting Letter from Charles Simon, Vice President, Bank of Hoven, to Ronnie Long (Apr. 26, 1996), App. 91). In the final agreement, the Bank promised no long-term financing; instead, it gave the Longs only a two-year lease with an option to purchase that required a large balloon payment within 60 days of the lease's expiration. When the Longs were unable to make the required payment within the specified deadline, the Bank sold the land to nonmembers on more favorable terms.

In their complaint, the Longs alleged that the Bank allowed the non-Indians "ten years to pay for the land, but the bank would not permit [the] Longs even 60 days to pay for their land," and that "[s]uch unfair discrimination by the bank prevented the Longs and the [Long] Company from buying back their land from the bank." App. 173. Although the allegations about the Bank's contracts to sell to nonmembers were central to the Longs' lawsuit, those transactions with third parties were not the wrong about which the Longs complained. Rather, as the tribal trial court observed, the contracts with nonmembers simply supplied "evidence that the Bank denied the Longs the privilege of contracting for a deed because of their status as tribal members." App. to Pet. for Cert. A-78 to A-79 (emphasis added).

The Tribal Court instructed the jury to hold the Bank liable on the discrimination claim only if the less favorable terms given to the Longs rested "solely" upon the Longs' "race or tribal identity." 491 F.3d, at 883 (internal quotation marks omitted). In response to a special interrogatory, the jury found that "the Defendant Bank intentionally discriminate[d] against the Plaintiffs Ronnie and Lila Long [in the lease with option to purchase] based solely upon their status as Indians or tribal members." App. 191. Neither the instruction nor the special finding necessitated regulation of, or interference with, the Bank's fee-land sales to non-Indian individuals. See ante, at 2714.^[5]

Tellingly, the Bank's principal jurisdictional argument below bore no relationship [2732] to the position the Court embraces. The Bank recognized that the Longs were indeed complaining about discriminatory conduct of a familiar sort. Cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968) (42 U.S.C. § 1982 "bars all racial discrimination... in the sale or rental of property"). In Hicks, 533 U.S. 353, 121 S.Ct. 2304, 150 L.Ed.2d 398, this Court held that tribal courts could not exercise jurisdiction over a claim arising under federal law, in that case, 42 U.S.C. § 1983. Relying on Hicks, the Bank insisted that the Longs' discrimination claim could not be heard in tribal court because it arose under well-known federal antidiscrimination law, specifically, 42 U.S.C. § 1981 or § 2000d. 491 F.3d, at 882-883. The Tribal Court of Appeals, however, held that the claim arose under Lakota common law, which resembled federal and state antidiscrimination measures. See App. to Pet. for Cert. A-54 to A-55, and n. 5.^[6]

B

The Longs requested a remedy the Tribal Court did not have authority to grant—namely, an option to repurchase land the Bank had already contracted to sell to nonmember third parties. See supra, at2717. That limitation, however, does not affect the court's jurisdiction to hear the Longs' discrimination claim and to award damages on that claim. "The nature of the relief available after jurisdiction attaches is, of course, different from the question whether there is jurisdiction to adjudicate the controversy." Avco Corp. v. Machinists, 390 U.S. 557, 561, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968). See also Davis v. Passman, 442 U.S. 228, 239-240, n. 18, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) ("[J]urisdiction is a question of whether a federal court has the power ... to hear a case"; "relief is a question of the various remedies a federal court may make available.").

Under the procedural rules applicable in Cheyenne River Sioux Tribal Courts, as under the Federal Rules, demand for one form of relief does not confine a trial court's remedial authority. See Law and Order Code of Cheyenne River Sioux Tribe, Rule Civ. Proc. 25(c)(1) ("[E]very final judgment shall grant the relief to [2733] which the party in whose favor it is rendered is entitled, even if such relief is not demanded in the pleadings."); Fed. Rule Civ. Proc. 54(c) (materially identical). A court does not lose jurisdiction over a claim merely because it lacks authority to provide the form of relief a party primarily demands. See Avco, 390 U.S., at 560-561, 88 S.Ct. 1235; 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2664, pp. 181-182 (3d ed. 1998) ("[I]t is not ... the type of relief requested in the demand that determines whether the court has jurisdiction.").^[7] In such a case, authority to provide another remedy suffices to permit the court to adjudicate the merits of the claim. See Avco, 390 U.S., at 560-561, 88 S.Ct. 1235.

* * *

For the reasons stated, I would leave undisturbed the Tribal Court's initial judgment, see App. 194-196, awarding the Longs damages, prejudgment interest, and costs as redress for the Bank's breach of contract, bad faith, and discrimination. Accordingly, I would affirm in large part the judgment of the Court of Appeals.

---------

[1] Justice GINSBURG questions this distinction between sales and activities on the ground that "[s]ales of land—and related conduct—are surely `activities' within the ordinary sense of the word." Post, at 2729-2730. We think the distinction is readily understandable. In any event, the question is not whether a sale is, in some generic sense, an action. The question is whether land ownership and sale are "activities" within the meaning of Montana and the other cited precedents.

[2] Justice GINSBURG contends that if the Tribal Court has jurisdiction over the Longs' other claims, it is hard to understand why jurisdiction would not also extend to the discrimination claim. Post, at 2732-2733. First, we have not said the Tribal Court has jurisdiction over the other claims: That question is not before us and we decline to speculate as to its answer. Moreover, the claims on which the Longs prevailed concern breach of a loan agreement, see App. 190, and bad faith in connection with Bureau of Indian Affairs loan guarantees, see id., at 192. The present claim involves substantive regulation of the sale of fee land.

[3] We point to the relief requested by the Longs—and partially granted by the Tribal Court—to rebut the Longs' contention that their claim did not focus on the sale of the fee land. Contrary to Justice GINSBURG's assertion, however, the nature of this remedy does not drive our jurisdictional ruling. See post, at 2732-2733. The remedy is invalid because there is no jurisdiction, not the other way around.

[4] The Longs joined their discrimination claim with claims of breach of contract and bad-faith dealings. The jury found in favor of the Longs on all three claims. App. 190-192. The latter claims alleged that the Bank "never provided the ... operating loans" promised during the parties' negotiations. 491 F.3d 878, 882 (C.A.8 2007). "[A]s a result," the Longs asserted, "the company was not able [to] sustain its ranching operation through the particularly harsh winter of 1996-97." Ibid. Nothing in the Court's opinion precludes decision of those claims by the Tribal Court. See ante, at 2717, 2718, 2725, n. 2.

[5] The Court criticizes the Tribal Court for "requir[ing] the Bank to offer the same terms of sale to a prospective buyer who had defaulted in several previous transactions with the Bank as it offered to a different buyer without such a history of default." Ante, at 2728. That criticism is unfair. First, the record does not confirm that the Longs were riskier buyers than the nonmembers to whom the Bank eventually sold the land. Overlooked by the Court, the Bank's loans to the Longs were sheltered by BIA loan guarantees. See supra, at 2715-2716. Further, a determination that the Longs had encountered intentional discrimination based solely on their status as tribal members in no way inhibited the Bank from differentiating evenhandedly among borrowers based on their creditworthiness. The proscription of discrimination simply required the Bank to offer the Longs the same terms it would have offered similarly situated non-Indians.

[6] The Court types the Longs' discrimination claim as "`novel,'" ante, at 2728 (quoting 491 F.3d, at 892), because the Tribal Court of Appeals derived the applicable law "`directly from Lakota tradition,'" ante, at 2728 (quoting 440 F.Supp.2d 1070, 1082 (SD 2006) (case below)). Concerning the content of the Tribe's law, however, the appeals court drew not only from "Tribal tradition and custom," it also looked to federal and state law. See App. to Pet. for Cert. A-55. Just as state courts may draw upon federal law when appropriate, see, e.g., Dawson v. Birenbaum, 968 S.W.2d 663, 666-667 (Ky.1998), and federal courts may look to state law to fill gaps, see, e.g., United States v. Kimbell Foods, Inc., 440 U.S. 715, 728-730, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979), so too may tribal courts "borrow from the law of ... the federal government," see F. Cohen, Handbook of Federal Indian Law § 4.05[1], p. 275 (2005 ed.). With regard to checks against discrimination, as the Tribal Court of Appeals observed, "there is a direct and laudable convergence of federal, state, and tribal concern." App. to Pet. for Cert. A-55 to A-56.

[7] As in this case, see App. 177-179, the complaint in Avco sought injunctive relief, but also included a residual clause asking for other relief, see Avco Corp. v. Aero Lodge No. 735, Int'l Assn. of Mach. and Aerospace Workers, 376 F.2d 337, 339 (C.A.6 1967).

FMC Corp.

v.

Shoshone-Bannock Tribes

 15 Indian L. Rep. 6023 (Sho-Ban. Tr. Ct., App. Div., May 19, 1988)

MYERS, Appellate Judge

On July 22, 1987, the trial court of the Shoshone-Bannock Tribal Court system decided the matter of Shoshone-Bannock Tribes v. FMC Corporation, No. C-87-39 (Sho-Ban. Tr. Ct., July 22, 1987) 14 Indian L. Rep. 6046, Judge Robert L. Hunter, Jr., presiding by special designation. FMC Corporation (FMC), the appellant in this matter, seeks review of the trial court decision from this court on several grounds: (1) that the tribal government has no civil jurisdiction or regulatory authority over appellant's business situated on non-Indian fee land within the exterior boundaries of the reservation; (2) that tribes are without governmental power to levy fines, impose civil penalties, require bonds, enter restraining orders or order removal of non-Indians from employment with a non-Indian firm doing business on fee land within the exterior boundaries of the reservation; (3) that the lower court decision is contrary to and not supported by the evidence; (4) that the trial court failed to join indispensable parties, and; (5) that this case amounts to selective enforcement of the Tribal Employment Rights Ordinance (TERO).

Proceedings Below

On April 15, 1987, the Tribal Employment Rights Office of the Shoshone-Bannock Tribes, the appellee, brought an action in tribal court alleging that appellant had violated provisions of the TERO. The appellee sought and was granted a temporary restraining order (TRO) restraining the appellant from recalling or promoting non-Indians on appellee's temporary recall list pending a ruling on appellee's request for a preliminary injunction. On May 1, 1987, the tribal court heard oral arguments on the motion for preliminary injunction. It extended the temporary restraining order for 10 days and on May 11, 1987 issued the requested preliminary injunction.

On April 24, 1987, appellant filed for a preliminary injunction in federal district court to enjoin the tribal court from enforcing its temporary restraining order or preliminary injunction. The federal district court issued an order on May 19, 1987, enjoining the tribal court until tribal jurisdiction over appellant was addressed by this court.

The appellee amended its original complaint, adding a cause of action alleging that appellant violated § 4.8 of the TERO by hiring 13 non-Indians in the past two years for temporary laborer positions without first giving the TERO office an opportunity to locate and refer Indians for these positions. An expedited hearing was held before Judge Robert L. Huner, Jr., on May 14, 1987. Judge Hunter rendered an opinion and order on July 22, 1987. It is from that decision that this appeal is made. In that decision Judge Hunter ordered appellant to remove from its employ 13 non-Indians he found to be hired improperly and instructed the parties to set a date for a hearing on fines and penalties. On July 31, 1987, appellant filed a notice of appeal from that decision, as well as a request for a stay and a waiver of the appeal bond requirement. On August 18, 1987, Judge Lohah of the tribal court granted the appellant's request for a stay but ordered it to post a $10,000 bond. On December 3, 1987, this court ruled on appellant's appeal from Judge Lohah's decision of August 18, 1987. The preliminary injunction was stayed and no appellate bond was imposed for this appeal.

Factual Background

Since 1949, the appellate has operated a phosphate processing plant on fee land within the exterior boundaries of the Fort Hall Reservation. The phosphate ore for that plant is mined from Indian and tribally owned land on the Fort Hall Indian Reservation and other areas of the region. In 1980 the Shoshone-Bannock Tribes enacted a Tribal Employment Rights Ordinance and set up a TERO office to administer a tribal employment program. The ordinance requires employers located on the reservation to give preference in employment, contracting, and subcontracting to Indians (see TERO § 4). It further required the employers to notify the TERO office of any vacancies and to give the office five days to refer qualified Indians for those vacancies. (see TERO § 4.8). Another TERO provision instructed the TERO Commission to negotiate compliance plans with each employer. The appellant entered into an employment agreement with the tribal government in July 1981.

In late 1986, the appellee became concerned about appellant's compliance with the ordinance. The appellant agreed in the compliance plan to give the TERO office the first consideration to fill temporary positions. When appellee confronted appellant about the lack of Indian hires, the explanations were unsatisfactory. The explanations appeared to range from general affirmative action obligations to emergency conditions. The appellee requested that appellant correct the situation by increasing the seniority of Indians on the temporary recall list.[1] Sixteen non-Indians were hired by appellant for temporary positions in 1985 and 1986. This court has been informed that ten have been promoted to permanent positions.

I. Challenge to Tribal Jurisdiction

The threshold issue of FMC's appeal is its argument that the tribal government has no civil jurisdiction or regulatory authority over its business situated on (non-Indian owned) fee land within the exterior boundaries of the Fort Hall Indian Reservation. In its analysis the appellant relies in part upon the United States Supreme Court's decision in Oliphent v. Suquamish Indian Tribe, 435 U.S. 191 [5 Indian L. Rep. A-91] (1978). The Oliphant decision focused exclusively upon criminal jurisdiction of tribal governments over non-Indian defendants who violate tribal criminal laws. Using an historical perspective, the Court in effect exempted non-Indians from criminal liability to tribal governments by noting the "commonly shared presumption of Congress, the Executive branch, and lower federal courts that tribal courts do not have the power to try non-Indians." Id. at 206. There is no comparable presumption concerning the civil jurisdiction of tribal courts. On the contrary, the different rule applicable to the assertion of tribal civil jurisdiction was recognized as early as 1855 in an opinion of the attorney general cited by the Supreme Court in the Oliphant decision.[2] Certainly, the absence of tribal criminal jurisdiction over non-Indians provides no basis for disabling tribal governments from exercising civil jurisdiction over non-Indians and, since Congress is said to possess plenary power over the affairs of Indian tribes in the United States, then it has the federal responsibility when necessary to infringe upon the civil jurisdiction of Indian tribes. Absent congressional action, civil jurisdictional limitations on tribes may be self-imposed. The tribal government in this instance imposed no limiting language concerning civil jurisdiction in the law and order code.[3]

The United States Supreme Court has long recognized that Indian tribes constitute political communities which enjoy substantial sovereign powers over both Indians and non-Indians within the exterior boundaries of Indian reservations. That point has been made by the Supreme Court time and time again. See Williams v. Lee, 358 U.S. 217, 223 (1939); Warren Trading Post Co v. Arizona Tax Comm’n, 380 U.S. 685, 690-92 (1965); Kennerly v. District Court, 400 U.S. 423, 42 & 27 (1971); United States v. Mazurie, 419 U.S. at 557-58 [2 Indian L. Rep. No. 2, p.1] (1975); United States v. Antelope, 430 U.S. 641, 645 [4 Indian L. Rep. A-76] (1977); Santa Clara Pueblo v. Martinez, 436 U S. at 55-56 [5 Indian L. Rep. A-55]; Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. at 152-54 [7 Indian L. Rep. 1023]; White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142, 151 [7 Indian L. Rep. 1055] (1980); Montana v. United States, 450 U.S. 544, 565-66 [8 Indian L. Rep. 1005] (1981); Merrion v. Jicarilla Apache Tribe, 455 U.S. at 140, 146-48; Ramah Navajo School Board, Inc. v. Bureau of Revenue, 458 U.S. 832, 837-38 [9 Indian L. Rep. 1035] (1982); New Mexico v. Mescalero Apache Tribe, slip op. 8-12 [10 Indian L. Rep. 1028].

In recent years, the Supreme Court has established Several principles for determining whether or not a tribe's sovereign authority empowers it to exercise civil jurisdiction over non-Indians located on fee land within a reservation. In Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980), the Court held that tribes possessed that authority unless its exercise was inconsistent with the overriding interests of the federal government. In Montana v. United States, 450 U.S. 544 (1981), the Supreme Court held that tribes do not retain that authority unless the non-Indian had entered into "consensual relations” with the tribe or the non-Indians' activities threaten or have some direct effect on the political integrity, the economic security or the health and welfare of the tribe. In Merrion v. Jicorilla Apache Tribe, 455 U.S. 130 (1982), the Supreme Court concluded that a tribe’s civil jurisdiction is not diminished just because the activity takes place on non-Indian fee land.

In each Supreme Court decision noted above, either expressly or implicitly, tribal civil jurisdiction is recognized based upon a historical exercise of that jurisdiction through an understanding by the parties that tribal civil jurisdiction is applicable. Until this controversy, the appellant had acknowledged that it was subject to the civil jurisdiction of the tribal government through contracts, leases, taxation and its initial efforts to comply with the TERO.

Not unlike many Indian reservations, the Fort Hall Indian Reservation has suffered chronically from a depressed economy and an absence of sufficient employment opportunities for its tribal members. The preamble of its TERO reiterates its constitutional responsibility to protect the "general welfare." Enactment of this ordinance is authorized by the tribal constitution and the spirit of the ordinance reflects a concern for improving the employment status of members of the Shoshone-Bannock Tribes.

In democratic governments of the modern world organic documents are construed broadly so that governments maintain the ability to respond to the changes in social patterns and needs, population increases and diversities, technological improvements, and governmental developments. No less accord should be granted to the Constitution of the Shoshone-Bannock Tribes.

Because the TERO directly affects nonmembers of the Fort Hall Indian Reservation, it was subject to the review of the Secretary of the Interior pursuant to the tribal constitution.[4] In a memorandum dated October 21, 1980, the Bureau of Indian Affairs stated that their regional solicitor's office had reviewed the TERO and found no legal impediments to its approval. The ordinance was then approved on behalf of the Secretary of the Interior.[5]

The TERO has the effect of statutory law applicable to the employment policies and practices of employers within the exterior boundaries of the Fort Hall Reservation. Governed by its constitution, its statutory laws and the mandate of the Indian Civil Rights Act of 1968 (25 U.S.C. § 1301 et. seq.), the Shoshone-Bannock tribal government regulates in the first instance the general employment policies and practices of its jurisdiction. This is a constitutional mandate and a governmental responsibility to protect the "general welfare."

The exercise of civil jurisdiction over appellant in this case cannot be successfully questioned given the current state of the law and the historical and present relationship between the parties. Even when analyzed against the impotency of Montana v. United States 450 U.S. 544 (198l) concerning the exercise of tribal civil jurisdiction over non-Indians on non-Indian fee land within the exterior boundaries of a reservation. FMC is convincingly subject to the civil jurisdiction of the tribal government in this controversy.

In Montana, the regulatory powers of the state of Montana on its fee land situated within the exterior boundaries of the Crow Reservation was pitted against the jurisdiction of the tribal government. In order to characterize regulatory jurisdiction in that instance with the state of Montana, the United States Supreme Court look sparingly upon the civil jurisdiction of tribal governments over non-Indians on non-Indian fee land within the exterior boundaries of the reservation. The Court created its “Montana” tests to determine whether or not an Indian tribe could properly exercise civil regulatory jurisdiction over non-indians on (non-indian owned) fee land within the exterior boundaries of the reservation. According to Montana, the tribal government may exercise civil regulatory jurisdiction over appellant if it has entered into “consensual relationships” with that government through commercial transactions, contracts, leases or other arrangements. Secondly, the tribal government retains inherent power to exercise civil jurisdiction over non-Indians on fee land within the exterior boundaries of the reservation when the conduct of those non-Indians threatens or has some direct effect upon the political integrity, the economic security, or the health or welfare of the tribe. Supra at 366.

There is substantial evidence in the record below that since 1949, many “consensual relationships” have been struck between the tribal government and FMC. This extensive record of consensual relationships is viewed by this court as firmly establishing a relationship between the tribal government and FMC as a linkage between a local government doing business with and having the authority to regulate a business enterprise within its substantive and territorial limits.[6]

Pursuing the course of Montana, this court only needs to examine the "consensual relationship" established when FMC signed the 1981 employment agreement. This "consensual relationship" is one in which FMC declares by the writing that it is subject to the regulatory authority of the tribal government to promulgate and enforce employment policies and practices of firms doing business on the Fort Hall Reservation. This agreement was later canceled; however, that fact does not detract from the establishment of the consensual relationship between a government and a firm doing business in and consenting to the territorial and the civil regulatory jurisdiction of said government.

The TERO of 1980 is a legislative enactment of the tribal government for the purpose of regulating the employment policies and practices of all the employers doing business on the Fort Hall Indian Reservation. Since unemployment is a crisis situation on the reservation, the tribal government has a substantial governmental interest and obligation to take measures to improve the negative employment conditions of its members by developing employment opportunities. As long as the ordinance invokes a compliance mechanism which assures the due process mandate of the Civil Rights Act of 1968, the tribal government is exercising valid civil regulatory powers. The "compliance plan" provision of the TERO provides adequate assurances that employers would be treated fairly by the tribal government.

The second prong of Montana states that a tribal government retains inherent power to exercise civil jurisdiction over non-Indians on fee land within the exterior boundaries of the reservation when the conduct of those non-Indians threatens or has some direct effect upon the political integrity, the economic security or the health or welfare of the tribe.

From the record below it appears that the conduct of the appellant has infringed substantially upon the political integrity of the tribal government. FMC has consented to tribal taxation and entered into agreements with the tribal government, including the 1981 employment agreement the acknowledgment of which by FMC indicates to this court that FMC recognized the tribal government's civil jurisdiction over its activities on the reservation. The appellant cannot arbitrarily stand outside the civil regulation of the tribal government at its convenience. Such conduct impacts negatively upon the tribal government in regulating others within its jurisdiction. Again, it is the province of either Congress or the tribal government to determine the parameters of tribal civil jurisdiction. The appellant's effort to circumvent the regulatory authority of the tribal government by claiming that the tribal court has no jurisdiction to hear this case is a definite threat to the political integrity of this tribal government .

The tribal government has a compelling and overriding governmental interest in promulgating and implementing laws which regulate employment policies and practices of firms doing business on the reservation. The interest here is the governmental obligation to improve economic conditions on the reservation and thereby develop a healthy economic integrity for the people of the Fort Hall Reservation. The measuring device for gauging that integrity is the assessment (continuing) of the economic status of the citizenry of the reservation.

Chronic poverty is a historical fact of Indian Country. Fort Hall is no exception. In the early 1800s many Indian tribes were forced to give up their homelands. In dramatic efforts to seek peace tribes made enormous land concessions to the United States in return for the promise of peace. Tribes were ordered to exist within the confines of Indian reservations where the cancer of poverty has raged for generations. The TERO is an effort to improve the economic conditions of Indians of the Fort Hall Reservation. Appellant's challenge to the TERO is a threat to the economic integrity of the tribes. The tribal citizenry is the tribal government and community.

Before: SMITH, HAYNES, and GRAVES, Circuit Judges.

JAMES E. GRAVES, Jr., Circuit Judge.

The court previously issued its opinion in this case on October 3, 2013. Dolgencorp, Inc. v. Miss. Band of Choctaw Indians, 732 F.3d 409 (5th Cir. 2013). We hereby withdraw the previous opinion and substitute the following.

Dolgencorp, Inc. and Dollar General Corp. (collectively "Dolgencorp") brought an action in the district court seeking to enjoin John Doe, a member of the Mississippi Band of Choctaw Indians, and other defendants (collectively "the tribal defendants") from adjudicating tort claims against Dolgencorp in the Choctaw tribal court. The district court denied Dolgencorp's motion for summary judgment and granted summary judgment in favor of the tribal defendants, concluding that the tribal court may properly exercise jurisdiction over Doe's claims. Because we agree that Dolgencorp's consensual relationship with Doe gives rise to tribal court jurisdiction over Doe's claims under Montana v. United States, 450 U.S. 544, 564-66 (1981), we AFFIRM the district court's judgment.

BACKGROUND

Dolgencorp operates a Dollar General store on the Choctaw reservation in Mississippi. The store sits on land held by the United States in trust for the Mississippi Band of Choctaw Indians, and operates pursuant to a lease agreement with the tribe and a business license issued by the tribe. At all relevant times, Dale Townsend was the store's manager. The tribe operates a job training program known as the Youth Opportunity Program ("YOP"), which attempts to place young tribe members in short-term, unpaid positions with local businesses for educational purposes. In the spring of 2003, Townsend, in his capacity as manager of the store, agreed to participate in the YOP. Pursuant to this program, John Doe, a thirteen-year-old tribe member, was assigned to the Dollar General store. Doe alleges that Townsend sexually molested him while he was working at the Dollar General store.

In January 2005, Doe sued Dolgencorp and Townsend in tribal court. Doe alleges that Dolgencorp is vicariously liable for Townsend's actions, and that Dolgencorp negligently hired, trained, or supervised Townsend. Doe further alleges that the assault has caused him severe mental trauma, and seeks "actual and punitive damages in a sum not less than 2.5 million dollars."

Dolgencorp and Townsend filed motions in the tribal court seeking to dismiss Doe's claims based on lack of subject-matter jurisdiction. The tribal court denied both motions. Both parties petitioned the Choctaw Supreme Court for interlocutory review of the lower court's order denying the motions to dismiss. Under an analysis based on Montana v. United States, 450 U.S. 544 (1981), the Choctaw Supreme Court held that subject-matter jurisdiction existed as to both Dolgencorp and Townsend and therefore dismissed the appeal, remanding the case to the lower court.

On March 10, 2008, Dolgencorp and Townsend filed an action in the U.S. District Court for the Southern District of Mississippi against the tribal defendants. Dolgencorp and Townsend allege that the tribal court lacks jurisdiction over them in the suit filed by Doe and seek to enjoin the prosecution of Doe's suit in tribal court. Dolgencorp and Townsend each filed a subsequent motion for a temporary restraining order and a preliminary injunction.

The district granted Townsend's motion but denied Dolgencorp's motion. The district court reasoned that "[i]f John Doe performed services for Dolgen that had value to Dolgen such that Dolgen enjoyed a commercial benefit from its agreement to allow his placement in its store, then it would be reasonable to conclude that there existed the kind of consensual relationship required by Montana's first exception."^[1] Dolgen Corp., Inc. v. Mississippi Band of Choctaw Indians, No. 4:08CV22, 2008 WL 5381906, at *5 (S.D. Miss. Dec. 19, 2008). The district court found no evidence as to "whether Dolgen's participation was essentially gratuitous or whether it received a commercial benefit from the arrangement." Id. at *6. Accordingly, the district court held that Dolgencorp had not carried its burden of establishing likely success on the merits (i.e. showing that the first Montana exception does not apply). Id. The district court also rejected Dolgencorp's argument that Doe's lawsuit has no nexus to the alleged consensual relationship between Dolgencorp and the tribe regarding the YOP. Id. However, the district court held that because Townsend personally had not entered into any consensual relationship with either the tribe or Doe, the tribal court had no jurisdiction over him. Id. at *7.

Dolgencorp and the tribal defendants subsequently filed cross motions for summary judgment. In its order granting the tribal defendants' motion and denying Dolgencorp's motion, the district court explained:

It now appears undisputed that Dale Townsend, purportedly on behalf of Dolgen, agreed with the Tribe to participate in the Tribal Youth Opportunity Program, and that based on such agreement, John Doe was placed in the Dollar General store under Townsend's direct supervision. Doe did not thereby become an employee of Dolgen, but he functioned as an unpaid intern or apprentice, receiving job training from Dolgen and in turn provid[ing] free labor to Dolgen for the period of his assignment. In the court's opinion, as a consequence of this arrangement, Dolgen implicitly consented to the jurisdiction of the Tribe with respect to matters connected to this relationship.

Dolgencorp Inc. v. Mississippi Band of Choctaw Indians, 846 F. Supp. 2d 646, 650 (S.D. Miss. 2011) (footnote omitted). The district court further held that Doe's tort claims, "being based on Townsend's alleged molestation of John Doe during his tenure at the store, arise directly from this consensual relationship so that the requirement of a sufficient nexus between the consensual relationship and exertion of tribal authority is satisfied." Id.

The district court also rejected Dolgencorp's argument, based on Plains Commerce Bank v. Long Family Land and Cattle Co., Inc., 554 U.S. 316 (2008), that "the consensual relationship exception does not support tribal jurisdiction since the nonmember conduct at issue does not implicate tribal governance or internal relations." Dolgencorp, 846 F. Supp. 2d at 650-51. The district court explained:

The parties disagree as to the meaning and import of Plains Commerce Bank with respect to the first Montana exception. Plaintiffs submit that under the Court's interpretation of the exception in Plains Commerce Bank, no longer will every consensual relationship between a nonmember and a tribal member occurring on the reservation be sufficient to establish tribal jurisdiction over claims with a nexus to that relationship; rather, only those consensual relationships that are evaluated and determined to have an impact on tribal self governance or internal relations will trigger tribal jurisdiction. Plaintiffs contend that since the consensual relationship here involved does not implicate tribal self-governance or internal relations, then the exception does not apply and there can be no basis for tribal jurisdiction.

Defendants, on the other hand, maintain that nothing in Plains Commerce Bank altered the basic Montana framework and that to establish applicability of the consensual relationship exception, no showing is required to be made beyond the existence of the consensual relationship which supports a finding of consent to tribal jurisdiction, and the nexus between the consensual relationship and exertion of tribal authority. According to defendants, it is implicit in Montana and its progeny that the right of Indian tribes to self governance includes the right to adjudicate civil disputes arising from voluntary consensual relationships between tribes and their members and nonmembers. That is, disputes arising from member-nonmember or tribe-nonmember consensual relationships are deemed as a matter of law to impact tribal rights of self-government sufficient to permit the exercise of tribal court jurisdiction to adjudicate such disputes.

Id. at 652-53 (footnote omitted). The district court agreed with the tribal defendants' position, stating that "although a number of post-Plains Commerce Bank cases have considered the consensual relationship exception, none has identified the additional showing advocated by plaintiffs as a prerequisite to its application." Id. at 653-54 & n.3. Accordingly, the district court concluded that tribal court jurisdiction was permitted under the first Montana exception. Id. at 654.

Dolgencorp appealed. Dolgencorp does not contend that there are disputed questions of material fact; instead, it argues that the district court erred in its legal determination that the Montana consensual relationship exception was satisfied.

DISCUSSION

This case deals with the inherent sovereign authority of Indian tribes. Indian tribes can be viewed as independent sovereign communities that have lost some aspects of sovereignty. See, e.g., United States v. Wheeler, 435 U.S. 313, 322-23 (1978).

The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.

Id. at 323. The Supreme Court has recognized that "both the tribes and the Federal Government are firmly committed to the goal of promoting tribal self-government, a goal embodied in numerous federal statutes." New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334-35 (1983). Moreover, "[t]ribal courts play a vital role in tribal self-government, . . . and the Federal Government has consistently encouraged their development." Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14-15 (1987).

Generally, Indian tribes retain the power to govern themselves and to control relations between members of the tribe. See Wheeler, 435 U.S. at 326. On the other hand, "by virtue of their dependent status," Indian tribes have been largely divested of control over external relations; i.e. "relations between an Indian tribe and nonmembers of the tribe." See id. In other words, "exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation." Montana, 450 U.S. at 564.

In Montana, the Supreme Court recognized that generally, "the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." 450 U.S. at 565. However, the Court explained:

To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. 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.^[2]

Id. The Court later held that "Montana's consensual relationship exception requires that the tax or regulation imposed by the Indian tribe have a nexus to the consensual relationship itself." Atkinson Trading Co., Inc. v. Shirley, 532 U.S. 645, 656 (2001). Despite the limitations recognized in Montana and subsequent cases, the Court has consistently acknowledged that "[t]ribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty." Iowa Mut., 480 U.S. at 18.

"[W]here tribes possess authority to regulate the activities of nonmembers, civil jurisdiction over disputes arising out of such activities presumptively lies in the tribal courts." Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997) (quotation and brackets omitted). A tribe's regulation of nonmember conduct through tort law is analyzed under the Montana framework. See, e.g., Attorney's Process & Investigation Services, Inc. v. Sac & Fox Tribe, 609 F.3d 927, 938 (8th Cir. 2010) ("If the Tribe retains the power under Montana to regulate . . . conduct, we fail to see how it makes any difference whether it does so through precisely tailored regulations or through tort claims . . . ."); Philip Morris USA, Inc. v. King Mountain Tobacco Co., Inc., 569 F.3d 932, 939 (9th Cir. 2009) ("The Montana framework is applicable to tribal adjudicative jurisdiction, which extends no further than the Montana exceptions.").^[3] In considering regulation through tort law, "courts applying Montana should not simply consider the abstract elements of the tribal claim at issue, but must focus on the specific nonmember conduct alleged, taking a functional view of the regulatory effect of the claim on the nonmember." Attorney's Process, 609 F.3d at 938.

Dolgencorp presents several arguments as to why tribal court jurisdiction over Doe's tort claims is not justified under the Montana consensual relationship exception.

I. Commercial relationship

Under Montana, a tribe may regulate "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. at 565 (emphasis added). Relying on a single repudiated appellate opinion, Dolgencorp argues that "`other arrangements' . . . also must be of a commercial nature." Boxx v. Long Warrior, 265 F.3d 771, 776 (9th Cir. 2001); see Smith v. Salish Kootenai College, 434 F.3d 1127, 1137 n.4 (9th Cir. 2006) (en banc) (disapproving of this language in Boxx). In other words, Dolgencorp argues that noncommercial relationships do not give rise to tribal jurisdiction under the first Montana exeption. We decline to impose such a restriction, which does not appear to be supported by any compelling rationale. Moreover, such a requirement would be easily satisfied in this case. Although Doe worked for only a brief time at the Dollar General store and was not paid, he was essentially an unpaid intern, performing limited work in exchange for job training and experience. This is unquestionably a relationship "of a commercial nature."

II. Nexus

Dolgencorp argues that there is no nexus between its participation in the YOP and Doe's tort claims. We disagree. The conduct for which Doe seeks to hold Dolgencorp liable is its alleged placement, in its Dollar General store located on tribal lands, of a manager who sexually assaulted Doe while he was working there. This conduct has an obvious nexus to Dolgencorp's participation in the YOP. In essence, a tribe that has agreed to place a minor tribe member as an unpaid intern in a business located on tribal land on a reservation is attempting to regulate the safety of the child's workplace. Simply put, the tribe is protecting its own children on its own land. It is surely within the tribe's regulatory authority to insist that a child working for a local business not be sexually assaulted by the employees of the business. The fact that the regulation takes the form of a tort duty that may be vindicated by individual tribe members in tribal court makes no difference. See, e.g., Attorney's Process, 609 F.3d at 938. To the extent that foreseeability is relevant to the nexus issue, as Dolgencorp suggests, it is present here. Having agreed to place a minor tribe member in a position of quasi-employment on Indian land in a reservation, it would hardly be surprising for Dolgencorp to have to answer in tribal court for harm caused to the child in the course of his employment.^[4]

Dolgencorp confuses the merits of Doe's case with the question of tribal jurisdiction. It may very well be that Dolgencorp did not do, or fail to do, anything that would cause it to be held liable to Doe. The nexus component of the tribal jurisdiction question, however, centers on the nexus between the alleged misconduct and the consensual action of Dolgencorp in participating in the YOP.

III. The effect of Plains Commerce

Dolgencorp argues that Plains Commerce narrowed the Montana consensual relationship exception, allowing tribes to regulate consensual relationships with nonmembers only upon a showing that the specific relationships "implicate tribal governance and internal relations." In Plains Commerce, 554 U.S. at 334-35, the Supreme Court described the Montana consensual relationship exception as follows:

The logic of Montana is that certain activities on non-Indian fee land (say, a business enterprise employing tribal members) or certain uses (say, commercial development) may intrude on the internal relations of the tribe or threaten self-rule. To the extent they do, such activities or land uses may be regulated. Put another way, certain forms of nonmember behavior, even on non-Indian fee land, may sufficiently affect the tribe as to justify tribal oversight. While tribes generally have no interest in regulating the conduct of nonmembers, then, they may regulate nonmember behavior that implicates tribal governance and internal relations.

(citation and parenthetical omitted). The Court further stated:

[Indian] laws and regulations may be fairly imposed on nonmembers only if the nonmember has consented, either expressly or by his actions. Even then, the regulation must stem from the tribe's inherent sovereign authority to set conditions on entry, preserve tribal self-government, or control internal relations. See Montana, 450 U.S., at 564, 101 S.Ct. 1245.

Id. at 337.

We do not interpret Plains Commerce to require an additional showing that one specific relationship, in itself, "intrude[s] on the internal relations of the tribe or threaten[s] self-rule." It is hard to imagine how a single employment relationship between a tribe member and a business could ever have such an impact. On the other hand, at a higher level of generality, the ability to regulate the working conditions (particularly as pertains to health and safety) of tribe members employed on reservation land is plainly central to the tribe's power of self-government. Nothing in Plains Commerce requires a focus on the highly specific rather than the general.

Dolgencorp notes the statement in Plains Commerce that "a business enterprise employing tribal members . . . may intrude on the internal relations of the tribe or threaten self-rule," and that "[t]o the extent [it does], [its] activities . . . may be regulated." 554 U.S. at 334-35 (emphasis added). This statement expresses nothing more than the uncontroversial proposition that a tribe cannot impose any conceivable regulation on a business simply because it is operating on a reservation and employing tribe members. However, such a limitation is already built into the first Montana exception. Under that exception, the tribe may only regulate activity having a logical nexus to some consensual relationship between a business and the tribe or its members. See, e.g., Philip Morris, 569 F.3d at 941 ("The mere fact that a nonmember has some consensual commercial contacts with a tribe does not mean that the tribe has jurisdiction over all suits involving that nonmember, or even over all such suits that arise within the reservation; the suit must also arise out of those consensual contacts.").

Our conclusion is strengthened by the fact that since Plains Commerce was decided, no court has, despite finding a consensual relationship with a nexus to a tribal regulation, rejected tribal jurisdiction because the relationship did not "implicate tribal governance and internal relations."^[5] We also note that any discussion in Plains Commerce of tribal authority to regulate nonmember conduct under Montana is dicta; its result is based on a holding that Montana does not allow a tribe to regulate the sale of land owned by a non-member. See, e.g., Plains Commerce, 554 U.S. at 340 ("Montana provides that, in certain circumstances, tribes may exercise authority over the conduct of nonmembers, even if that conduct takes place on non-Indian fee land. But conduct taking place on the land and the sale of the land are two very different things.").^[6]

IV. Off-reservation conduct

Dolgencorp argues that Doe failed to adequately allege and prove that Dolgencorp's negligent hiring, training, or supervision of Townsend occurred on the reservation.^[7] However, Dolgencorp failed to present this argument either to the district court or to the tribal courts. "Under this Circuit's general rule, arguments not raised before the district court are waived and will not be considered on appeal unless the party can demonstrate `extraordinary circumstances.'" Ag Acceptance Corp. v. Veigel, 564 F.3d 695, 700 (5th Cir. 2009). Because Dolgencorp has not demonstrated extraordinary circumstances, we decline to consider this argument for the first time on appeal.

Dolgencorp notes that a tribal court's jurisdiction over a nonmember is an issue of subject-matter jurisdiction. See Nevada v. Hicks, 533 U.S. 346, 367 n.8. Dolgencorp further notes that because the "concept of subject-matter jurisdiction. . . can never be forfeited or waived . . . [,] defects in subject-matter jurisdiction require correction regardless of whether the error was raised in district court." United States v. Cotton, 535 U.S. 625, 630 (2002). Dolgencorp therefore contends that arguments pertaining to the tribal court's lack of jurisdiction can never be waived.

Although it is true that defects in federal subject-matter jurisdiction cannot be waived in a federal case, a federal court has no independent obligation to "correct" a tribal court's lack of subject-matter jurisdiction over another case. Dolgencorp, as a plaintiff, must set forth a meritorious case to enjoin the tribal court proceedings based on lack of subject-matter jurisdiction. If it fails to present its arguments at the appropriate time, they are generally waived.

V. Punitive damages

Dolgencorp argues that the tribal court lacks jurisdiction over Doe's claims because Doe seeks punitive damages. Because the inherent sovereign authority of Indian tribes does not include criminal jurisdiction over non-Indians, Indian tribes "do not have inherent jurisdiction to try and to punish non-Indians." Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195, 212 (1978). Dolgencorp argues, based on Oliphant, that Indian tribes likewise have no jurisdiction to impose civil punitive damages on a nonmember. Dolgencorp notes that "the Bill of Rights and the Fourteenth Amendment do not of their own force apply to Indian tribes." Hicks, 533 U.S. at 383 (Souter, J., concurring). Dolgencorp also notes that an award of punitive damages may implicate constitutional protections against excessive punishment, in that "grossly excessive" punitive damages awards violate the Due Process Clause of the Fourteenth Amendment. BMW of North America v. Gore, 517 U.S. 559, 568 (1996). Dolgencorp therefore argues: "Because these protections are not present in tribal court, federal recognition of tribal jurisdiction over non-Indians in claims for punitive damages would in and of itself violate the Due Process clause. The federal government simply cannot waive a citizen's constitutional right by making them subject to the jurisdiction of a court where constitutional rights do not apply."

Dolgencorp identifies no authority applying Oliphant in the context of civil punitive damages or otherwise holding that Indian tribes are categorically prohibited from imposing punitive damages on nonmembers. Although punitive damages share many characteristics of criminal punishment, they are distinct; for example, punitive damages in civil cases do not invoke double jeopardy concerns. See, e.g., Hudson v. United States, 522 U.S. 93, 103 (1997) (a penalty that is "civil in nature" does not implicate double jeopardy). Furthermore, Dolgencorp's broader argument simply proves too much. If the federal government could never "waive a citizen's constitutional right" by subjecting him to the jurisdiction of a court lacking full constitutional protections, a non-Indian could never be subjected to tribal court jurisdiction. Yet the Supreme Court has acknowledged that by entering certain consensual relationships with Indian tribes, a nonmember may implicitly consent to jurisdiction in a tribal court that operates differently from federal and state courts. Accordingly, we conclude that the availability of punitive damages has no effect on the tribal court's jurisdiction over Doe's claims against Dolgencorp.

AFFIRMED.

JERRY E. SMITH, Circuit Judge, dissenting:

For the first time ever, a federal court of appeals upholds Indian tribal-court tort jurisdiction over a non-Indian, based on a consensual relationship, without a finding that jurisdiction is "necessary to protect tribal self-government or to control internal relations." Montana v. United States, 450 U.S. 544, 564 (1981). The majority's alarming and unprecedented holding far outpaces the Supreme Court, which has never upheld Indian jurisdiction over a nonmember defendant.

This ruling profoundly upsets the careful balance that the Supreme Court has struck between Indian tribal governance, on the one hand, and American sovereignty and the constitutional rights of U.S. citizens, on the other hand. The majority's bold announcement is conspicuous for its audacity, given that this court hears few Indian cases and decides little Indian law. I respectfully dissent.

I.

The majority pays only lip service to, but does not heed, the Supreme Court's guidance that "exercise of tribal power beyond what is necessary to pro-tect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express con-gressional delegation." Id. One manifestation of that maxim is that Indian tribes lack "inherent sovereign authority to exercise criminal jurisdiction over non-Indians." Id. at 565 (citing Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)). Absent express congressional delegation, therefore, store manager Townsend could not have been criminally prosecuted in tribal court for the alleged molestation of John Doe.^[8]

The principle on which Oliphant relies, moreover, "support[s] the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." Id. Although the Supreme Court has not yet explicitly adopted an Oliphant-like rule for civil cases, it has "never held that a tribal court had jurisdiction over a nonmember defendant." Nevada v. Hicks, 533 U.S. 353, 358 n.2 (2001). It remains an open question whether there are any circumstances under which the Court would find that a tribal court retains civil jurisdiction over a non-Indian defendant such as Dolgencorp.^[9]

The civil action here—an ordinary tort action, despite the seriousness of the alleged offense—comes nowhere close to implicating Indian self-government or internal tribal relations.^[10] It is therefore easy to conclude that any putative exception to the well-established restriction on jurisdiction over non-Indian defendants could never extent to the instant facts. Even assuming arguendo that the Supreme Court would recognize an exception, the logic and structure of Montana dictate that its exceptions apply only where adjudicatory or regula-tory authority "is needed to preserve the right of reservation Indians to make their own laws and be ruled by them."^[11] The Court recently reiterated the limited nature of tribal-court jurisdiction over nonmember defendants by making expli-cit that Montana's first exception, like its second, "grants Indian tribes nothing beyond what is necessary to protect tribal self-government or to control internal relations."^[12]

The majority concedes that "[i]t is hard to imagine how a single employ-ment relationship between a tribe member and a business could ever have such an impact." I agree: Montana and its progeny contemplate a profoundly narrow scope for tribal-court jurisdiction over nonmembers, not least because "the Bill of Rights and the Fourteenth Amendment do not of their own force apply to Indian tribes."^[13] I also agree with the district court that "in no sense can it rea-sonably be said that the Tribal Court's assuming jurisdiction over the Does' claim against Dolgen[corp] . . . is necessary to protect tribal self-government or control internal relations."^[14]

"The Montana rule, therefore, and not its exceptions, applies to this case." Strate, 520 U.S. at 459. Doe was free to pursue his claims in the state court open to all Mississippi tort claimants. See id. Because Dolgencorp's conduct indisput-ably falls outside the Choctaw Indians' authority to "protect tribal self-government or to control internal relations," Montana, 450 U.S. at 544, the juris-dictional inquiry should be easily and rightfully at an end.

This court therefore should reverse the district court and render judgment for Dolgencorp without reaching the first Montana exception. I will address it, nonetheless, because I also disagree with the majority that there was a legally sufficient nexus between Dolgencorp's participation in a short-term, unpaid internship program and the full body of Indian tort law.

II.

Before today, no circuit court has upheld Indian-court jurisdiction, under Montana's first exception, over a tort claim against a nonmember defendant.^[15] That exception provides that "[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." Montana, 450 U.S. at 565.

Assuming "the tribal tort at issue here is a form of regulation," Plains Commerce Bank, 554 U.S. at 332, "Montana's consensual relationship exception requires that [it] have a nexus to the consensual relationship itself," Atkinson, 532 U.S. at 656. The relevant consensual relationship is Dolgencorp's voluntary participation in the Youth Opportunity Program. The majority errantly contends that, "[h]aving agreed to place a minor tribe member in a position of quasi-employment on Indian land in a reservation, it would hardly be surprising for Dolgencorp to have to answer in tribal court for harm caused to the child in the course of his employment."

That reasoning is foreclosed by Plains Commerce Bank, 554 U.S. at 338. There is no reason Dolgencorp should could reasonably have anticipated that, solely on the basis of its participation in a short-term, unpaid internship pro-gram, it would be subject to the entire—and largely undefined—body of Indian tribal tort law. As the Supreme Court has "emphasized repeatedly in this con-text, when it comes to tribal regulatory authority, it is not in for a penny, in for a Pound." Id. (citation and internal quotation marks omitted).

The elements of Doe's claims under Indian tribal law are unknown to Dol-gencorp and may very well be undiscoverable by it.^[16] Choctaw law expressly incorporates, as superior to Mississippi state law, the "customs . . . and usages of the tribes." CHOCTAW TRIBAL CODE § 1-1-4. "Where doubt arises as to the cus-toms and usages of the Tribe, the court may request the advice of persons gen-erally recognized in the community as being familiar with such customs and usages." Id. Although the claims that Doe wishes to press against Dolgencorp have familiar state-law analogues, the majority's aggressive holding extends to the entire body of tribal tort law—including any novel claims recognized by the Choctaws but not by Mississippi. Cf. Plains Commerce Bank, 554 U.S. at 338.

Because Dolgencorp could not have anticipated that its consensual rela-tionship with Doe would subject it to any and all tort claims actionable under tribal law, there is an insufficient nexus to satisfy Montana's first exception. For the majority to hold otherwise raises serious due-process concerns insofar as Dol-gencorp will be forced to defend Doe's claims in an unfamiliar forum without the benefit of constitutional protections.^[17]

Even accepting as accurate that, in the majority's words, "[i]t is surely within the tribe's regulatory authority to insist that [Doe] not be sexually assaulted by the employees of [Dolgencorp]," it cannot be true that, as the major-ity insists, "[t]he fact that the regulation takes the form of a tort duty that may be vindicated by individual tribe members in tribal court makes no difference." Although "a tribe's adjudicative jurisdiction does not exceed its legislative juris-diction," Strate, 520 U.S. at 453, it does not necessarily follow that the two are coextensive. There are good reasons to construe the former more narrowly: Mon-tana's first exception envisages discrete regulations consented to ex ante; the majority, to the contrary, upholds an unprecedented after-the-fact imposition of an entire body of tort law based on Dolgencorp's participation in a brief, unpaid internship program.

And finally, the majority's pronouncement is vague and unworkable in practice. On the one hand, the majority opines that "[h]aving agreed to place a minor tribe member in a position of quasi-employment on Indian land in a reservation, it would hardly be surprising for Dolgencorp to have to answer in tribal court for harm caused to the child in the course of his employment." That broad statement would authorize a tort action in Indian court if, for example, the minor had slipped on a poorly-maintained floor at the store and had cut his finger. In the majority's words, that would violate "the safety of the child's workplace."

On the other hand, the majority emphasizes that "[i]t is surely within the tribe's regulatory authority to insist that a child working for a local business not be sexually assaulted by the employees of the business." Is the majority recog-nizing tribal-court authority over any tort related to the voluntary job-training program, or only over especially despicable incidents such as sexual assaults? What if the boy had fatally hit his head on the floor? Or would it have to be an intentional tort—a slap on the face, perhaps, for bad performance? Is the major-ity's unprecedented expansion of Indian-court jurisdiction limited to only highly reprehensible acts, or only to "really bad" acts, or to "sort of bad acts," or to any minor, negligent act, or only to situations in which, in the majority's words, "the tribe is protecting its own children on its own land?

The limits to the majority's dramatic holding remain a secret. In short, the majority gives no real indication of what it means by foreseeability, which means that the next actor in the place of Dolgencorp will have no idea whether it can be subjected to the uncertainties of the Indian courts.^[18]

III.

Although Dolgencorp failed to assert timely that the tribal court lacks jur-isdiction to adjudicate Doe's claim of negligent hiring, training, and supervision —because Doe failed adequately to allege and prove that the conduct underlying that claim occurred on the reservation—I would not stop there, as the majority does. This case presents the sort of "extraordinary circumstances" that justify considering a claim presented for the first time on appeal. See N. Alamo Water Supply Corp. v. City of San Juan, Tex., 90 F.3d 910, 916 (5th Cir. 1996).

"Extraordinary circumstances exist when the issue involved is a pure ques-tion of law and a miscarriage of justice would result from our failure to consider it." Id. The issue raised by Dolgencorp is a pure question of law that requires no factual development in the district court. Whether its argument is waived turns on whether it has met its burden to show that a miscarriage of justice would result from the panel's failure to consider it. See AG Acceptance Corp. v. Veigel, 564 F.3d 695, 700 (5th Cir. 2009).

To identify a miscarriage of justice, "we have often considered whether the alleged error is obvious or merely debatable." Id. at 701. In this case, the alleged error is obvious. As the majority notes, "Montana and its progeny permit tribal regulation of nonmember conduct inside the reservation that implicates the tribe's sovereign interests." Plains Commerce Bank, 554 U.S. at 332 (empha-sis added). Montana contains an exception for "civil jurisdiction over non-Indians on their reservations." Id. at 329 (emphasis added). The Court has given no hint that tribal jurisdiction extends to activity taking place outside of Indian country, as did the hiring, training, and supervision here.^[19]

Failure to consider the argument regarding off-reservation conduct causes significant harm to Dolgencorp and does violence to the law. Cf. AG Acceptance, 564 F.3d at 701. Dolgencorp will be required, without usual procedural and con-stitutional protections and in an unfamiliar forum, to defend its off-reservation training, hiring, and supervision procedures. The majority opinion also has pro-found implications for the due-process rights of other non-Indians who do busi-ness on Indian lands in Mississippi, Louisiana, and Texas. The majority's con-clusion is flawed, because the Indian court lacks jurisdiction over Doe's claim of negligent hiring, training, and supervision.

As already explained, the Indian court also lacks jurisdiction over the on-reservation conduct for which Doe seeks to hold Dolgencorp vicariously liable, because the conduct does not threaten Indian self-government, nor is there a foreseeable nexus between the whole body of tribal tort law and Dolgencorp's voluntary participation in a brief internship program. The majority's stunning pronouncement expands Indian-court jurisdiction over nonmember defendants far beyond the scope permitted by the Supreme Court or any other appellate authority. It is grave error from which I respectfully dissent.

[1] As explained more fully below, Montana and its progeny provide two exceptions to the general rule that Indian tribes cannot exercise civil jurisdiction over non-members. The first Montana exception, also known as the consensual relationship exception, provides that a tribe may regulate conduct that has a nexus to some consensual relationship between the non-member and the tribe or its members.

[2] The Court further held that "[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." Montana, 450 U.S. at 566. Because the tribal defendants do not argue that this second exception is applicable here, we do not consider it further.

[3] The dissenting opinion suggests that "[b]efore today, no circuit court has upheld Indian-court jurisdiction, under Montana's first exception, over a tort claim against a nonmember defendant." However, every circuit court to consider the question — including the — has either held or assumed that tribal courts may exercise jurisdiction over tort claims against non-members under the first Montana exception. See, e.g., Bank One, N.A. v. Shumake, 281 F.3d 507, 509-12 & n.13 (5th Cir. 2002) (finding colorable tribal court jurisdiction over fraud claims by Choctaw tribe members against a non-member bank based on the first Montana exception, such that tribal exhaustion was required). No circuit court has held that such tort claims are not allowed or suggested that they should be treated differently from other types of regulation of non-member conduct. Furthermore, no circuit court has held that tribal court tort jurisdiction over a non-member is allowed under the first Montana exception only where such jurisdiction is shown in that specific case to be necessary to protect tribal self-government or to control internal relations.

[4] The dissenting opinion suggests that the nexus is insufficient here because "Dolgencorp could not have anticipated that its consensual relationship with Doe would subject it to any and all tort claims actionable under tribal law." We are not concerned here with "any and all tort claims actionable under tribal law." Doe has brought two specific claims, both of which are based on the alleged sexual molestation of a child by a store manager. We suspect that Dolgencorp could have easily anticipated that such a thing would be actionable under Choctaw law. Accordingly, under the facts of this case, we need not reach the hypothetical factual scenarios posited by the dissenting opinion.

Furthermore, we do not agree that tribal law and tribal court are entirely unfamiliar to Dolgencorp. For example, in its commercial lease agreement, Dolgencorp agrees to "comply with all codes and requirements of all tribal and federal laws and regulations" pertaining to the leased premises. The agreement also provides that it "shall be construed according to the laws of the Mississippi Band of Choctaw Indians and the state of Mississippi" and that it "is subject to the Choctaw Tribal Tort Claims Act." Finally, the agreement provides that "[e]xclusive venue and jurisdiction shall be in the Tribal Court of the Mississippi Band of Choctaw Indians." Although we do not consider whether the lease agreement in itself would have a sufficient nexus to support tribal court jurisdiction over Doe's tort claims, we highlight this agreement to show that a business operating on Indian land in a reservation is unlikely to be surprised by the possibility of being subjected to tribal law in tribal court.

[5] Two district court opinions have suggested that such an additional showing is necessary but have not relied on its absence to reject tribal jurisdiction. Salt River Project Agricultural Improvement and Power District v. Lee, No. 08-CV-8028, 2013 WL 321884 at *13-15 (D. Az. Jan. 28, 2013) (finding the first Montana exception applicable and stating that "regulating employment implicates the tribe's sovereign authority to control internal relations"); Rolling Frito-Lay Sales LP v. Stover, No. 11-CV-1361, 2012 WL 252938 at *4 (D. Az. Jan. 26, 2012) (rejecting tribal court jurisdiction based on a lacking nexus between the consensual relationship and the tort claim).

[6] The dissenting opinion, relying on law review articles and dicta from Plains Commerce, would adopt a "profoundly narrow" interpretation of the Montana consensual relationship exception. As the dissent all but admits, this would read the first Montana exception out of existence. If regulation of some consensual relationship is necessary to protect tribal self-government or to control internal relations, it would seem to fall necessarily within the second Montana exception, which allows tribes to regulate non-member conduct that "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Montana, 450 U.S. at 566.

This highly restrictive interpretation appears to be largely driven by the concern that subjecting non-members to the jurisdiction of tribal courts will violate their due process rights, a concern we find to be exaggerated. It is true that "the Bill of Rights and the Fourteenth Amendment do not of their own force apply to Indian tribes." Nevada v. Hicks, 533 U.S. 353, 383 (2001) (Souter, J., concurring). However, the Indian Civil Rights Act of 1968 imposes numerous constraints on Indian tribes, including a provision that no tribe may "deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law." 25 U.S.C. § 1302(a)(8). Although the interpretation of this statute may not precisely track the Supreme Court's interpretation of the analogous constitutional language, see id. at 384, we have no reason to believe that this results in injustice to litigants. While hypothesizing about potential unfairness in a tribal court, neither Dolgencorp nor the dissenting opinion points to any actual unfairness in the procedures of this particular tribal court.

[7] Although the Supreme Court has never explicitly held that Indian tribes lack inherent authority to regulate nonmember conduct that takes place outside their reservations, this is at least strongly implied. For example, Plains Commerce states that "Montana and its progeny permit tribal regulation of nonmember conduct inside the reservation that implicates the tribe's sovereign interests." 554 U.S. at 332 (emphasis added and removed); see also Philip Morris, 569 F.3d at 938 ("The jurisdiction of tribal courts does not extend beyond tribal boundaries."); Hornell Brewing Co. v. Rosebud Sioux Tribal Court, 133 F.3d 1087, 1091-92 (8th Cir. 1998) ("Neither Montana nor its progeny purports to allow Indian tribes to exercise civil jurisdiction over the activities or conduct of non-Indians occurring outside their reservations."); but see DISH Network Service L.L.C. v. Laducer, 725 F.3d 877, 884 (8th Cir. 2013) ("Even if the alleged abuse of process tort occurred off tribal lands, jurisdiction would not clearly be lacking in the tribal court because the tort claim arises out of and is intimately related to DISH's contract with Brian and that contract relates to activities on tribal land.").

[8] Cf. Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997) ("As to nonmembers . . . a tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction.").

[9] See Hicks, 533 U.S. at 358 n.2; see also Jesse Sixkiller, Procedural Fairness: Ensuring Tribal Civil Jurisdiction After Plains Commerce Bank, 26 ARIZ. J. INT'L & COMP. L. 779, 797 (2009) ("[T]he Court seems to be inching toward an Oliphant-like rule based on fairness to nonmembers . . . .").

[10] The majority's unsupported statement that "the ability to regulate the working conditions (particularly as pertains to health and safety) of tribe members employed on reservation land is plainly central to the tribe's power of self-government" is—in addition to being alarming for its breadth—nothing more than the majority's ipse dixit.

[11] Strate, 520 U.S. at 459 (internal quotation marks omitted). Although TTEA v. Ysleta del Sur Pueblo, 181 F.3d 676, 684 (5th Cir. 1999), relied on Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9, 18 (1987), for the proposition that "civil jurisdiction over nonIndians on reservation lands `presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute,'" that presumption was abrogated by subsequent Supreme Court authority. See Hicks, 533 U.S. at 381 (Souter, J., concurring) ("[I]n explaining and distinguishing Iowa Mutual, we confirmed in Strate what we had indicated in Montana: that as a general matter, a tribe's civil jurisdiction does not extend to the `activities of non-Indians on reservation lands,' Iowa Mutual, [480 U.S.] at 18 . . . and that the only such activi-ties that trigger civil jurisdiction are those that fit within one of Montana's two exceptions.").

[12] Atkinson Trading Co. v. Shirley, 532 U.S. 645, 658-59 (2001) (citations and internal quotation marks omitted); see Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 332 (2008) ("Montana expressly limits its first exception to the `activities of nonmem-bers,' 450 U.S., at 565 . . ., allowing these to be regulated to the extent necessary `to protect tribal self-government [and] to control internal relations,' id., at 564.'").

The majority dismisses the relevant language in Plains Commerce Bank as dictum, but the scholarly consensus agrees that Plains Commerce Bank built on a principle articulated in Montana and reinforced by its progeny. See, e.g., Sarah Krakoff, Tribal Civil Judicial Juris-diction over Nonmembers: A Practical Guide for Judges, 81 U. COLO. L. REV. 1187, 1190 (2010) ("Hicks and Plains Commerce, like Strate, refrained from adopting a categorical prohibition against tribal civil jurisdiction over nonmembers, but further narrowed the circumstances in which the Court will approve such exercises of tribal authority."). Moreover, the claim that court statements that run contrary to one's legal assertions can be ignored or avoided as "dic-tum" or "dicta" is often the last refuge when favorable authority is scant. "Even assuming it is dictum, however, we give serious consideration to this recent and detailed discussion of the law by a majority of the Supreme Court." Gearlds v. Entergy Servs., Inc., 709 F.3d 448, 452 (5th Cir. 2013). The Supreme Court's "recent dictum . . . provides the best, though not infalli-ble, guide to what the law is." Reich v. Cont'l Cas. Co., 33 F. 3d 754, 757 (7th Cir. 1994). As compared to other dicta, "[d]icta of the Supreme Court are, of course, another matter." United States v. Becton, 632 F.2d 1294, 1296 n.3 (5th Cir. 1980). In Gearlds, a recent panel of this court viewed itself legally bound by Supreme Court dicta to the extent that, despite our rule of orderliness, it declared prior precedent to have been implicitly overruled by that dicta.

[13] Hicks, 533 U.S. at 383 (Souter, J., concurring). As aptly stated by the Chief Justice of the Supreme Court of the Citizen Potawatomi Nation of Oklahoma, Director of the U.C.L.A. American Indian Studies Center, and Co-Director of the Native Nations Law and Policy Cen-ter, "Though seemingly capacious, these two exceptions to the so-called Montana rule have been construed exceedingly narrowly by subsequent Supreme Court decisions." Angela R. Riley, Indians and Guns, 100 GEO. L.J. 1675, 1720 (2012), excerpted in IX SCHOLARLY PERSPEC-TIVES 101 (U.C.L.A. School of Law Fall 2013).

[14] Dolgen Corp. v. The Mississippi Band of Choctaw Indians, No. 4:08-CV-22, 2008 WL 5381906, at *3 (S.D. Miss. Dec. 19, 2008); cf. Strate, 520 U.S. at 457-58 ("Undoubtedly, those who drive carelessly on a public highway running through a reservation endanger all in the vicinity, and surely jeopardize the safety of tribal members. But if Montana's second exception requires no more, the exception would severely shrink the rule.").

[15] One recent survey reports only four cases upholding tribal-court jurisdiction over a non-member defendant, and just two involving tort law. See Krakoff, supra note 5, at 1236. In McDonald v. Means, 309 F.3d 530 (9th Cir. 2002), the court upheld tribal jurisdiction over a tort suit that occurred on a Bureau of Indian Affairs road over which the tribe retained gate-keeping authority. The Ninth Circuit, however, does not acknowledge that Montana's general rule applies to non-Indian conduct on reservation trust land. See, e.g., Water Wheel Camp Rec-reational Area, Inc. v. LaRance, 642 F.3d 802, 813-14, 819 (9th Cir. 2011) (rejecting applica-tion of Montana but upholding jurisdiction over trespass claim under second exception). Both the Choctaw Supreme Court and the district court a quo have ruled, in light of dicta in Hicks and Plains Commerce Bank, that the Ninth Circuit's narrow application of Montana is incor-rect, a ruling that the tribal defendants do not challenge.

The only decision from a federal circuit that found tribal-court jurisdiction over a tort claim against a non-member defendant is Attorney's Process & Investigation Servs., Inc. v. Sac & Fox Tribe of Miss. in Iowa, 609 F.3d 927 (8th Cir. 2010), which involved Montana's second exception. The court found that defendants' outrageous alleged conduct—"API's armed agents entered onto tribal trust land without permission of the elected governing body, stormed build-ings vital to the Tribe's economy and its self government, committed violent torts against tri-bal members, forcibly seized sensitive information related to the Tribe's finances and gaming operations, and damaged tribal property"—"menace[d] the `political integrity, the economic security, [and] the health [and] welfare' of the Tribe to such a degree that it `imperil[ed] the subsistence' of the tribal community.'" Id. at 939 (quoting Plains Commerce Bank, 554 U.S. at 341 (alterations in original)). In DISH Network Service L.L.C. v. Laducer, 725 F.3d 877, 884 (8th Cir. 2013), the court invoked Montana's first exception in denying a preliminary injunc-tion against Indian court jurisdiction over an unexhausted tort claim, but the court postponed "a definitive resolution of the question."

[16] Even for the tribes and their members, the status of the law may be unknowable in light of Montana and the tribal reliance on custom and practice, "leaving tribes to wonder as to the scope of tribal civil jurisdiction over nonmembers operating on non-Indian lands within Indian Country." Riley, supra note 6, at 1720. Accord Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 HARV. L. REV. 431, 435 (2005) ("Even the Chief Justice of the North Dakota Supreme Court recently said that, `in matters involving jurisdic-tion on Indian reservations, we often are unable to know what the law is until the United States Supreme Court tells us what it is.'").

[17] Justice Souter explained this serious due-process concern as follows:

The ability of nonmembers to know where tribal jurisdiction begins and ends, it should be stressed, is a matter of real, practical consequence given "[t]he special nature of [Indian] tribunals," which differ from traditional Ameri-can courts in a number of significant respects. To start with the most obvious one, it has been understood for more than a century that the Bill of Rights and the Fourteenth Amendment do not of their own force apply to Indian tribes. Although the Indian Civil Rights Act of 1968 (ICRA) makes a handful of analo-gous safeguards enforceable in tribal courts, "the guarantees are not identical," and there is a "definite trend by tribal courts" toward the view that they "ha[ve] leeway in interpreting" the ICRA's due process and equal protection clauses and "need not follow the U.S. Supreme Court precedents `jot-for-jot."` In any event, a presumption against tribal-court civil jurisdiction squares with one of the principal policy considerations underlying Oliphant, namely, an overriding con-cern that citizens who are not tribal members be "protected . . . from unwarranted intrusions on their personal liberty."

Hicks, 533 U.S. at 383-84 (Souter, J., concurring) (citations omitted).

[18] The majority's facile statement that "under the facts of this case, we need not reach the hypothetical factual scenarios posited by the dissenting opinion" is a duck, not an answer. The majority suggests no test by which future parties in Dolgencorp's circumstance can pos-sibly know when they might be hauled into Indian court pursuant to a consensual relationship" such as the apprentice program.

[19] See also Philip Morris USA, Inc. v. King Mountain Tobacco Co., 569 F.3d 932, 938 (9th Cir. 2009) ("[T]ribal jurisdiction is, of course, cabined by geography: The jurisdiction of tribal courts does not extend beyond tribal boundaries."); Hornell Brewing Co. v. Rosebud Sioux Tribal Court, 133 F.3d 1087, 1091 (8th Cir. 1998) ("[N]either Montana nor its progeny purports to allow Indian tribes to exercise civil jurisdiction over the activities or conduct of non-Indians occurring outside their reservations."). But see DISH Network, 725 F.3d at 883-85.

[1312] Jeanette Wolfley, General Counsel, Shoshone-Bannock Tribes, Fort Hall, Idaho, for defendants-appellants.

Gary L. Cooper, Racine, Olson, Nye, Cooper & Budge, Pocatello, Idaho, for plaintiff-appellee.

Melody L. McCoy, Boulder, Colo., for amicus, Native American Rights Fund.

Before FARRIS, PREGERSON and BOOCHEVER, Circuit Judges.

FARRIS, Circuit Judge:

This case presents the question of the extent of power Indian tribes have over non-Indians acting on fee land located within the confines of a reservation. The Shoshone-Bannock Tribes are attempting to enforce a Tribal Employment Rights Ordinance, which requires all employers working on the reservation to give mandatory preferences in hiring to Indians. FMC, a non-Indian business operating on fee land inside the Reservation, challenges the Tribes' power to enforce the ordinance. The district court held that the Tribes did not have jurisdiction over FMC, reversing the decision of the Tribal Appellate Court, which had upheld the Tribes' jurisdiction to enforce the regulation. We reverse the decision of the district court and affirm the decision of the Tribal Appellate Court.

I.

BACKGROUND

The Shoshone-Bannock Tribes are federally recognized tribes residing on the Fort Hall Reservation in southeastern Idaho. The reservation encompasses 870 square miles, of which 96 per cent is tribal land or is held in trust by the United States for the benefit of the Tribes or their members, and four per cent is fee land owned by individuals, including non-Indians. As on many reservations, unemployment is rampant among the Shoshone-Bannock and contributes to the concomitant problems of poverty, alcoholism, drug abuse, and economic dependency.

In order to combat the problem of unemployment, in 1980 the Tribal Business Council, the governing body of the Tribes, adopted a Tribal Employment Rights Ordinance, EMPT-80-54, July 22, 1980. The TERO required employers working on the Reservation to give preference in employment, contracting, and subcontracting to Indians. The Secretary of the Interior approved the Ordinance on October 14, 1980. The TERO applies to all employers within the Reservation, including those owned by non-Indians operating on fee land.

FMC is such an employer. This non-Indian owned company has a plant on fee land within the Reservation that manufactures elemental phosphorus. FMC is the largest employer on the Reservation, with 600 employees. FMC has other connections to the Reservation in addition to the location of its plant. The company currently gets all of the phosphate shale (one of the three primary raw materials required for production) from mining leases located within the Reservation. The phosphate shale constitutes approximately 90 percent of the minerals used at the facility. The shale leases are on lands owned by the Tribes or by individual Indians. FMC's leases are managed and operated by J.R. Simplot Company, whose operation of the mines is regulated by the TERO. The mining leases account for revenue to the Tribes and to individual members. All other materials used in production come from areas off-Reservation. The final product, elemental phosphate, is all shipped off-Reservation.

Upon notification of the passage of the TERO, FMC objected to the ordinance's application to its plant. After negotiations [1313] with the Tribes, FMC entered into an employment agreement based on the TERO in 1981 that resulted in a large increase in the number of Indian employees at FMC.

In late 1986, the Tribes became dissatisfied with FMC's compliance with the employment agreement. After attempts to negotiate an end to the alleged violations of the agreement failed, the Tribes filed civil charges in Tribal Court. FMC immediately challenged the Tribal Court's jurisdiction in federal district court and persuaded the district court to enjoin the Tribes from enforcing any orders against FMC until the Tribal Court had an opportunity to rule on the Tribes' jurisdiction over FMC. The Tribal Court then found that the Tribes had jurisdiction over FMC and held that the company had violated the TERO. The Tribal Appellate Court affirmed those rulings. When the parties could not reach agreement for compliance, the Tribal Appellate Court entered its own compliance plan, which required 75% of all new hires and 100% of all promotions to be awarded to qualified Indians, mandated that one-third of all internal training opportunities be awarded to local Indians, and levied an annual TERO fee of approximately $100,000 on FMC. FMC then returned to federal district court for a preliminary injunction, which it received. In April 1988, the district court reversed the Tribal Appellate Court. The Tribes now appeal.

II.

STANDARD OF REVIEW

We review the decision of the district court, involving mixed questions of fact and law, de novo. United States v. McConney, 728 F.2d 1195, 1204 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

The standard of review of a tribal court decision regarding tribal jurisdiction is a question of first impression among the circuits. The district court applied an "independent review" standard. The Tribes and amicus argue for a more deferential standard of clearly erroneous or arbitrary and capricious on both factual and legal questions, while FMC argues for clearly erroneous on factual questions and de novo on federal legal questions. We hold that FMC's proposed standard of review is the correct one.

The leading case on the question of tribal court jurisdiction is National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985), which established that a federal court must initially "stay[] its hand until after the Tribal Court has had a full opportunity to determine its own jurisdiction and to rectify any errors it may have made." This exhaustion of tribal remedies

allow[s] a full record to be developed in the Tribal Court before either the merits or any question concerning appropriate relief is addressed.... [It also will] encourage tribal courts to explain to the parties the precise basis for accepting jurisdiction, and will provide other courts with the benefit of their expertise in such matters in the event of further judicial review.

Farmers Union, 471 U.S. at 856-57, 105 S.Ct. at 2454 (citations and footnotes omitted). The existence of this Indian exhaustion requirement and the Court's earlier admonition that tribal courts are competent law-applying bodies, see, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65-66, 98 S.Ct. 1670, 1680-81, 56 L.Ed.2d 106 (1978), demonstrate that federal courts must show some deference to a tribal court's determination of its own jurisdiction.

The Farmers Union Court contemplated that tribal courts would develop the factual record in order to serve the "orderly administration of justice in the federal court." Id. This indicates a deferential, clearly erroneous standard of review for factual questions. This standard accords with traditional judicial policy of respecting the factfinding ability of the court of first instance. See generally McConney, 728 F.2d at 1200-04 (noting that the central goal in setting standards of review is to favor the court in the stronger position to determine the correct answer efficiently).

As to legal questions, the Farmers Union Court stated that the fact that a tribal [1314] court reviews a question first is helpful because other courts might "benefit [from] their expertise." Farmers Union, 471 U.S. at 857, 105 S.Ct. at 2454. This indicates that federal courts have no obligation to follow that expertise, but need only be guided by it. Moreover, federal courts are the final arbiters of federal law, and the question of tribal court jurisdiction is a federal question. Id. at 852-53, 105 S.Ct. at 2451-52. Federal legal questions should therefore be reviewed de novo.

III.

TRIBAL JURISDICTION

The Tribal Appellate Court held that the Tribes had jurisdiction to enforce the TERO against FMC. The court based its decision on Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), the leading case on tribal civil jurisdiction over non-Indians. The Montana Court stated:

[There are two circumstances in which] Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. [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. [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.

Montana, 450 U.S. at 565-66, 101 S.Ct. at 1258 (citations omitted). The Tribal Appellate Court found that both Montana circumstances were present here. The court held that there was a consensual relationship between the Tribes and FMC sufficient to support application of the TERO to FMC, and also that the Tribes' economic security and general welfare would suffer by not enforcing the TERO against FMC. We reach only the first Montana factor, as we hold that the Tribal Appellate Court's decision on this ground was correct, and therefore the district court erred in its reversal.

Montana's First Test: Consensual Relationships.

In order to allow tribal jurisdiction over non-Indians on fee land, Montana requires "consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements." 450 U.S. at 565, 101 S.Ct. at 1258. FMC has certainly entered into consensual relationships with the Tribes in several instances. Most notable are the wide ranging mining leases and contracts FMC has for the supply of phosphate shale to its plant. FMC also explicitly recognized the Tribes' taxing power in one of its mining agreements. FMC agreed to royalty payments and had entered into an agreement with the Tribes relating specifically to the TERO's goal of increased Indian employment and training. There is also the underlying fact that its plant is within reservation boundaries, although, significantly, on fee and not on tribal land. In sum, FMC's presence on the reservation is substantial, both physically and in terms of the money involved.

The district court held and FMC argues on appeal that these connections between the company and the Tribes, although substantial, do not provide a sufficiently close "nexus" to employment to support the TERO. FMC cites Cardin v. De La Cruz, 671 F.2d 363 (9th Cir.), cert. denied, 459 U.S. 967, 103 S.Ct. 293, 74 L.Ed.2d 277 (1982), to support its argument that a direct linkage must exist between the regulation and the particular activity regulated. In Cardin, a non-Indian owner of a grocery store on fee land inside the reservation sought to enjoin the tribe from enforcing its health regulations against him. We held that the non-Indian had entered into "consensual relations" with the tribe "through commercial dealings": The owner invited tribe members to come into the store for his products and depended on [1315] them to support his business. Cardin contains no explicit requirement of a nexus.

The commercial relationships here are at least as substantial as in Cardin. FMC depends on leases with the Tribes or tribal members for a substantial percentage of its raw materials at this plant, it has signed numerous contracts with the Tribes, including one relating particularly to employment, and finally, the company employed some, though few, Indians at the plant even before the TERO applied. FMC actively engaged in commerce with the Tribes and so has subjected itself to the civil jurisdiction of the Tribes. See, e.g., Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d 587 (9th Cir.1983) (car dealer subjected himself to tribal jurisdiction by conducting business with the tribe), cert. denied, 466 U.S. 926, 104 S.Ct. 1707, 80 L.Ed.2d 180 (1984).

FMC is of course correct that at some point the commercial relationship becomes so attenuated or stale that Montana's consensual relationship requirement would not be met. For example, in UNC Resources, Inc. v. Benally, 514 F.Supp. 358, 362 (D.N.M.1981), cited by FMC, none of the tribe's dealings with the company related directly to the plant in question, which was not even inside the reservation. See also United States v. Anderson, 736 F.2d 1358, 1364-65 (9th Cir.1984) (finding no consensual relationship). The relationship here, however, is close enough to support the regulation.

CONCLUSION

We reverse the decision of the district court. The Tribes may subject FMC to regulation of employment at its plant on fee land within the Reservation. We remand to the Tribal Court to give FMC an opportunity to challenge the application of the TERO under the Indian Civil Rights Act, 25 U.S.C. § 1302.

FMC Corp.

v.

Shoshone-Bannock Tribes Ex Rel. Tero Corp.

16 Indian L. Rep. 6026 (Sho-Ban. Tr. Ct., App. Div., Oct. 10, 1988)

MYERS, Appellate Judge

This order and compliance plan are made pursuant to this court's order dated September 7, 1988. The jurisdictional and factual basis upon which the plan is imposed is set forth in this court's opinion in this case rendered on May 19, 1988 [see 15 Indian L. Rep. 6023]. Since this court only heard testimony and reviewed evidence concerning the hiring controversy of individual Indian employees by FMC on the Fort Hall Reservation, this order and compliance plan addresses hiring practices concerning individuals. It has no force and effect upon issues of contracting and subcontracting nor does it address the Warbonnet Electric controversy.

The Shoshone-Bannock tribal government and FMC shall be bound by the provisions of the plan until the parties formally inform this court that they intend to modify the plan. If the parties agree in writing to modify the plan, at that time this court will permit the parties to negotiate a modification or draft a new plan. However, the parties must inform this court in writing of any intention to deviate from this plan. Efforts by either party to circumvent this plan or render it unworkable shall be subject to the contempt powers of this court.

FMC is a major corporate entity that has a legal and moral obligation to fairly serve the employment needs of the Indian residents of the Fort Hall Reservation as reasoned by this court in its opinion of May 19, 1988. More importantly, it has a commonsense obligation to promote community harmony in the areas where its work sites are located. In this instance, that obligation is being ignored and that attitude appears to be an origin of racial tensions both on and off the Fort Hall Reservation. Such tensions are unhealthy for the communities involved, impacting negatively upon the growing minds of children exposed.

The tribal government of the Fort Hall Reservation has a duty to protect the basic rights and interests of everyone within its territorial boundaries. This includes the duty to seek employment opportunities from firms doing business on the reservation for unemployed Indians who live on or near the Fort Hall Reservation. The enactment of the Tribal Employment Rights Ordinance (TERO) is the tribal government's effort to perform that duty. The compliance plan provision of the ordinance seeks to fairly apply its mandate to reservation employers.

The parties to this litigation mutually agreed at one point that the TERO was too harsh for a fair regulation of appellant's employment policies and practices concerning Indian hires. They decided to negotiate a workable compliance plan. Unfortunately the plan failed its purpose, resulting in this litigation.

Since the parties are unable to resolve their differences in this matter, this court binds the parties to the compliance plan set forth below.

FMC Compliance Plan

Indian Preference

FMC shall give preference to Indians for 75 percent of the initial hires and for 75 percent of the vacancies, regardless of level, where positions are not covered by, or cannot be filled pursuant to, the terms of FMC's collective bargaining agreement. This shall include vacancies in the positions not subject to a collective bargaining agreement and vacancies subject to a collective bargaining agreement for which there are no qualified employees to exercise their promotion rights under a collective bargaining agreement. Before filling any position with a non-Indian, FMC shall give the TERO office no less than three days to locate and refer a qualified local Indian. In emergency situations, FMC may request that the TERO office have less than three days; the TERO office shall liberally grant such requests. The TERO office shall recruit Indians who reside on or near the Fort Hall Reservation. Recruitment efforts to other reservations and other states shall stand outside the mandate of this plan.

Promotions

Local Indians shall be given preference for all positions in which the provision of such preference will not be in conflict with a collective bargaining agreement to which FMC is a party.

Training of Indians

For internal training programs conducted by FMC, one out of every three trainees shall be a local Indian if qualified Indian trainees are available. In addition, FMC shall assist the TERO office to establish a training program that will enable local Indians to prepare for employment with FMC. This program shall utilize any existing tribal training office and shall include local institutions of higher learning such as Idaho State University. These training efforts shall have the goal of preparing local Indians for projected vacancies at non-entry level positions for which FMC anticipates hiring from outside its existing workforce or will be open for bid internally where seniority is not the only determining factor. Each year, FMC shall project the vacancies for the coming three-year period in an effort to determine vacancies it will not be able to fill from its existing workforce, and then shall develop a comprehensive plan to train local Indians for such positions. When they are available, FMC shall place no less than 10 Indian graduates from the training program each year in vacancies at FMC. First preference among local Indians shall go to those who were laid off because of the closing of the Gay Mine and those on FMC's temporary recall list. FMC shall bear the cost of such training programs. However, some costs may be spread by persuading the Bureau of Indian Affairs to participate in this vocational training program.

Pre-Employment Screening and Orientation

With assistance from FMC, the TERO office shall screen employees referred to FMC to ensure that they qualify for the positions of the referral. In addition, the TERO office shall give all FMC referrals a work orientation to afford them the best opportunity for job success.

Counseling

Whenever FMC has determined that a local Indian employee referred by the TERO office is not performing adequately and is in danger of being dismissed, it shall notify the TERO office about the problem. The TERO office shall: immediately provide job counseling to that employee. FMC agrees not to terminate any Indian employee until the TERO office has been given an opportunity to provide such counseling, unless immediate termination is determined by management to be necessary.

Community Education

The TERO office with the assistance of FMC shall develop and deliver community education programs on the Fort Hall Reservation which explain the preference program and the opportunities it makes available to tribal members. The programs shall emphasize that preference requires qualified corkers who will perform satisfactorily on the job. The intent of this plan is to identify local Indians who have a real interest in gaining the skills necessary to become effective members of appellant's workforce. Employment opportunities may be provided but hard work is determinative of employment success.

High School Presentations

FMC and the TERO office shall make presentations at the local high schools about the opportunities available at FMC. They shall identify Indian students interested in working at FMC and offer them career counseling, summer jobs at FMC and other assistance to encourage Indian high school students to consider careers at FMC's operation at Fort Hall

TERO Fee

FMC shall pay a TERO fee in an amount equal to one-half of one percent of its total annual payroll minus that portion of the payroll paid to Indian employees.

Non-Compliance

The spirit of this plan is to afford employment opportunities to Indians who reside on or near the Fort Hall Reservation where the unemployment rate soars far beyond that of the general Pocatello area. The resources exploited from the Fort Hall Reservation by appellant and its contractors amount to enormous economic gain to off-reservation interests. Aside from the TERO and its application herein and the jurisdictional determination made by this court, there is a profound human interest obligation here that is incumbent upon FMC to honor this compliance plan. To do otherwise is not honorable.

If the TERO office has good cause to believe that FMC has seriously violated any requirement of this compliance plan it shall notify FMC and shall seek to resolve the alleged violation through negotiations and other cooperative methods. If such efforts fail, this court shall impose appropriate sanctions

In conformance with the assessments made herein,

This order and compliance plan are hereby entered on this 10th day of October 1988.

MILLER, J.

In this consolidated appeal, Defendants/Appellants Beverly Mosbarger (Mosbarger) and William L. Parsons (Parsons) contend that the Skokomish Tribal Government and Tribal Court lack jurisdiction to impose civil penalties on them for speeding on the Skokomish Indian Reservation. At a hearing on August 18, 2005, the Skokomish Trial Court found Mosbarger liable for speeding on Washington State Highway 106 in a school zone on the Reservation on May 25, 2005 and imposed a civil fine on her. At a hearing on February 17, 2005, the trial court found Parsons liable for speeding on U.S. Highway 101 on the Reservation on October 1, 2004 and imposed a civil fine on him. At a hearing on June 9, 2005, the trial court denied Parsons’ Motion to Reconsider for Lack of Jurisdiction and on June 16, 2005 the trial court filed the Order Denying Motion to Reconsider. Mosbarger and Parsons appealed those decisions.

For the reasons set forth below, and after fully considering the written and oral arguments of the parties and the relevant federal and tribal law, this Court affirms the August 18, 2005 Decision of the trial court imposing a civil penalty on Mosbarger for violating the motor vehicle speed limit in a school zone located on the Reservation.

We vacate, however, the trial court decision finding Parsons liable and we dismiss the Tribe’s suit against Parsons due to a lack of jurisdiction because the Tribe failed to establish the basic factual prerequisites necessary for this Court to determine whether the Tribe has civil jurisdiction in Parsons’ situation.

I. Factual Background

The following facts are undisputed on appeal: on May 25, 2005, Mosbarger was driving on Washington State Highway 106, at a point within the external boundaries of the Skokomish Reservation. She was cited by a tribal police officer for violating the Tribal Code due to driving her vehicle 31 miles per hour in a zone with a posted 20 mile per hour speed limit. She was exceeding the 20 mph speed limit in a “posted school zone” and “an active school zone” in front of the Hood Canal School on the reservation. The school is located directly on Highway 106. The 20 mph speed limit and the existence of the school zone were posted. The infraction occurred at approximately 9:01 a.m. on a Wednesday.

We take judicial notice of the following facts: the Hood Canal School is a grade school (kindergarten through eighth grade) attended by 351 students in March 2004, of which, according to a federal report filed by the school, 125 students were in the category of “Federally recognized, including Alaska Natives”; the office hours of the Hood Canal School are 7:30 – 4:00 and students are scheduled to be at school from 8:45 a.m. to 3:00 p.m. each school day; theHood Canal School was in session on May 25, 2005; and the Skokomish Tribal Nation has approximately nine hundred enrolled members/citizens.

In its appellate brief, the Tribe alleges that school was in session on the date Mosbarger was speeding in the school zone and that children were present on the school ground immediately adjacent to the highway. The Tribe also asserts that most, if not all, Skokomish Tribal children residing on the reservation attend the Hood Canal School. Mosbarger did not dispute these allegations by the Tribe.

Parsons was cited for speeding for traveling 57 miles per hour in a 45 miles per hour posted zone on U.S. Highway 101 within the exterior boundary of the Reservation. The infraction describes the location of the alleged speeding as “Hy. 101 (N)/Hwy. 106.”

II. Standard of Review

“The Skokomish Tribal Code is silent regarding the standard for appellate court review of a trial court decision. In the absence of any specified standard of review, we review issues of fact under the ‘clearly erroneous’ standard and issues of law de novo.” Johns and McGhee v. Allen, No. SKO CV 06/03-171, at 1 (Skokomish Tribal Ct. App. Oct. 22, 2004) (forthcoming Vol. 6 Northwest Intertribal Court System Appellate Reporter). The question whether the Skokomish Tribe has civil jurisdiction over the conduct of non-Indians within the reservation’s border is a question of law which we review de novo. Compare Smith v. Salish Kootenai College, 434 F.3d 1127, 1130 (9th Cir. 2006 (en banc) (“The question of tribal court jurisdiction is a federal question of law, which we review de novo.”).

III. Discussion

The jurisdictional issue presented in this appeal is whether the Tribal Government and the Tribal Court have regulatory and adjudicatory jurisdiction to prosecute the civil traffic infractions issued to Mosbarger and Parsons for speeding on the Skokomish Reservation.

“Jurisdictional disputes have been called ‘[t]he most complex problems in the field of Indian Law.’” County of Lewis v. Allen, 163 F.3d 509, 513 (9th Cir. 1998) (en banc) (quoting William C. Canby, Jr., American Indian Law 111 (1998)). It is the duty of a tribal court “to explain to the parties the precise basis for accepting jurisdiction . . . .” National Farmer’s Union Ins. Co. v. Crow Tribe, 471 U.S. 845, 857 (1985).

The Constitution of the Skokomish Tribe provides: “Except as prohibited by the Treaty of Point No Point and Federal Law, the Skokomish Tribe shall have jurisdiction over all persons, property, lands . . . and all activities occurring within the exterior boundaries of the Skokomish Indian Reservation.” Skokomish Const., art. I, sec. 1, www.skokomish.org. We are directed by tribal law to review the tribal treaty and federal law to determine the issue before us. We have reviewed the 1855 Skokomish Treaty of Point No Point and find no relevant provisions to guide us. See www.skokomish.org/SkokConstitution&Codes/Constitution/Treaty.htm. Thus, we will turn to federal case law because we are unaware of any federal statutory provisions that apply to this situation, and the parties have cited none.

There is extensive federal case law on the subject of tribal civil jurisdiction over non-Indians and their activities on Indian reservations. The rule that we must apply is found in Montana v. United States, 450 U.S. 544 (1981). The Supreme Court has called Montana the “pathmarking case concerning tribal civil authority over nonmembers.” Strate v. A-1 Contractors, 520 U.S. 438, 445 (1997); accord Nevada v. Hicks, 533 U.S. 353, 358 (2001).

According to the Strate Court, “Montana thus described a general rule that, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation, subject to two exceptions[.]” Strate, 520 U.S. at 446. The two exceptions that recognize factual situations where a tribal government does possess civil jurisdiction over non-Indians for their activities on non-Indian owned lands within a reservation were defined in Montana, 450 U.S. at 565-66:

To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non- Indian fee lands. 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.... 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. (citations omitted).

A. Mosbarger

In addressing Mosbarger’s appeal, we focus on the second Montana exception because the Tribe did not allege that she had entered any kind of contract or “other arrangements” with the Tribe or its members that might recognize jurisdiction in the Tribe under the first exception. The Supreme Court test for the second exception is plainly a factual one: Does the “conduct of non- Indians on fee lands within [a] reservation . . . threaten[] or ha[ve] some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Montana, 450 U.S. at 566. We will apply that test to the factual situation presented in this case.

On May 25, 2005, Mosbarger was driving on the Skokomish Reservation on Washington State Highway 106. In a nearly identical situation in Strate, the Supreme Court decided to “align the [state highway] . . . with land alienated to non-Indians.” Strate, 520 U.S. at 456. Following that decision, we will do the same. Because Mosbarger was speeding on land considered the equivalent of land within a reservation owned in fee simple by non-Indians, we must apply the Montana test. Under that test and its second exception, the Skokomish Tribe could not have jurisdiction over Mosbarger unless her “conduct threaten[d] or ha[d] some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Montana, 450 U.S. at 566. We hold that the facts in this case meet that test and the Tribe has authority to regulate Mosbarger and the speed limit on state roads by the school on the reservation and that the Tribal Court has adjudicatory jurisdiction to decide this case.

Mosbarger exceeded the tribal 20 mph speed limit for school zones by 11 miles per hour. She was aware that she was speeding within a school zone because the existence of the school zone and the speed limit was posted on the highway. She was ticketed on Wednesday May 25, which was a school day, at 9:01 a.m. in the morning. Numerous Indian and Skokomish children attend the school.

These facts establish that Mosbarger’s “conduct threaten[d] or ha[d] some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Montana, 450 U.S. at 566. By speeding in front of the grade school, Mosbarger endangered every student in the school. See Oregon Department of Transportation, A Guide to School Area Safety, (February 2005) (school zones are particularly hazardous because of large numbers of motorists and pedestrians; most children do not perceive traffic dangers like “an adult would under the same circumstances.”); Elizabeth J. Young & Karen K. Dixon, The Effects of School Zones on Driver Behavior, (May 2003 Georgia Institute of Technology) (speeding in school zones is dangerous to children) [http://www.urbanstreet.org/2nd_sym_proceedings/Volume%202/Young.pdf].

Jurisdictions throughout the United States recognize this seemingly self- evident fact -- speeding near schools is extremely dangerous to children. See, e.g., ORS 801.462 (school zones are 20 mph statutory speeds limits); Oregon Dept. of Transportation, Children in Traffic (videos presenting traffic situations from the child’s point of view and developmental limitations); Oregon Dept of Education, The Oregon Pedestrian and School Bus Safety Book and the Oregon Traffic Patrol Manual; American Automobile Association, Traffic Safety Services Catalog (materials for adult crossing guards, school bus safety, traffic safety education for preschool children and student pedestrians); Federal Highway Admin. & National Highway Traffic Safety Comm., Pedestrian Safety Program Resource Kit; Harborview Injury Prevention and Research Center, Seattle, Washington (pedestrian safety research and program for child pedestrian safety).

The Oregon Court of Appeals recently noted that the very “purpose” of a “speed limit is ... to protect the health, welfare, and safety of citizens,” and that this is “one of the most fundamental of all public policies.” Machado-Miller v. Mercereau & Shannon, LLP, 43 P.3d 1207, 180 Or. App. 586, 594 (2002). Thus, it is evident that the Skokomish laws controlling speeding in the school zone on the reservation serve the purpose of protecting the health and welfare of the Tribe’s minor citizens and the other children attending the Hood Canal School.

Also important to our decision affirming jurisdiction in this case under Montana is the fact that simply posting 20 mph signs and designating school zones has been shown not to control dangerous speeding around children. Traffic signs alone do not address nor solve the public policy issue for the Skokomish Tribe of protecting the health and welfare of its youngest citizens. See, e.g., Young & Dixon, at 4, 7 & 9; Charlie Saibel et al., Driver Perception of School Traffic Control Devices, ITE Journal, Vol. 69, Issue 11, at 38-42 (1999 Institute of Transportation Engineers, Washington D.C.); Patrick McCoy et al., School Speed Limit and Speeds in School Zones, Transportation Research Record 1254, at 1-7 (1990 Transportation Research Board, Washington D.C.). These studies show that speed limit signs are not effective at controlling speeding in school zones. Young & Dixon, at 4, 7 & 9; Saibel et al., at 38-42; McCoy et al., at 1- 7. They conclude that only a police presence and the actual enforcement of school zone speed limits is effective in achieving lower and safer speeds. Young & Dixon, at 4. Consequently, the only effective tool to protect the young tribal citizens enrolled at Hood Canal School is for the Skokomish Tribe to proactively control speeding near the reservation school. Tribal police enforcement of the school zone speed limit is crucial to protect all the children at the Hood Canal School, Indian and non-Indian, and directly affects the protection and the health and welfare of the Tribe and its citizens.

Governmental entities throughout the United States recognize these facts and strive to protect their youngest citizens and their families from traffic related threats to their health and welfare by enacting and enforcing low speed limits near schools. The Skokomish Tribe agrees with this policy and is attempting to protect the physical health and welfare of its school aged children so that these future leaders and citizens can grow up to help perpetuate and govern the Tribe. It is instructive to note that in Montana the Supreme Court cited as an example of the proper application and definition of the second exception one of its own cases about adoptions of Indian children. Montana, 450 U.S. at 566 (citing Fisher v. District Court, 424 U.S. 382 (1976)). This citation implies that the Supreme Court intended that issues regarding the protection of tribal children could fall within the second exception. We agree and find that this is one of those factual situations where protecting the health and welfare of tribal members requires tribal jurisdiction over non-Indians speeding in the reservation school zone. The Skokomish Tribe also complies with another aspect of the Montana exception when it protects its young citizens who attend the reservation school because the Tribe is working to advance its own political integrity and economic security. Nearly every society and government throughout human history has recognized the paramount need to educate, protect, and nurture its younger citizens to perpetuate the future existence and economic success of the society and the government itself. Most societies and governments spend enormous amounts of time, money, and effort in educating, protecting and preserving these societal resources. It appears to us beyond question that the political integrity of the Skokomish Tribe, that is, the preservation of its future existence and operation is well served by protecting its future leaders and citizens. Furthermore, the economic success of the Tribe is guaranteed by educating and protecting tribal youth to become productive tribal citizens in the future and by avoiding catastrophic injuries and the economic costs which could devastate family and tribal resources. Lastly, it is evident that protecting the health and welfare of the Tribe as a unit and of the individual tribal families and citizens depends upon the physical protection of its youngest citizens. Nothing less than an all out effort to serve these fundamental public policies can be expected of the Tribe.

In addition, it is no surprise that the Tribe is pursuing policies and working to protect its minor citizens because this honorable conduct is an obligation of government and is part of the parens patriae duty all governments owe to protect their youngest and most vulnerable citizens. See, e.g., Schall v. Martin, 467 U.S. 253, 263 (1984) (“The State has ‘a parens patriae interest in preserving and promoting the welfare of the child,’”) (quoting Santosky v. Kramer, 455 U.S. 745, 766 (1982)); Black’s Law Dictionary 1003 (5th ed. 1979).

Some might argue that adverse conditions which only affect individual tribal members cannot be a “threat[] or [a] direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” That leads to the natural question of what is a tribe? Isn’t a tribe a group of Indian people who have voluntarily banded together bound by blood and family ties who agree to live under some form of tribal governmental control? What is the United States, or the States of Oregon or Washington for example? Aren’t they just conglomerations of their citizens? What is Washington other than a political entity with a designated territory, comprised of its citizens, and empowered by its people to govern, protect, and manage their political and macroeconomic affairs of state? When one speaks of the health or safety of the United States and protecting it from terrorist attacks, for example, aren’t we talking about the health and safety of the people of the United States? When the Supreme Court set out a test that focuses on the political integrity, economic security, and health and welfare of a tribe, wasn’t it considering the welfare of tribal citizens?

In our view, the United States and the states and Indian tribes are political groupings of people. What affects one citizen or many citizens ultimately affects the health and welfare of the government and society as a whole. The Montana Court illustrated this very point by focusing on individuals when it expressed the two exceptions that define the parameters of tribal governmental control over non-Indians. The Court created the exceptions in regards to fishing and hunting regulations that the Crow Tribe was trying to impose on non-Indian individuals on the Crow Reservation. The Montana test was devised to protect individual non-Indians from the possible overextension of tribal jurisdiction. The test was based on the actions and impacts on tribal individuals in either the first exception’s requirement that the non-Indian individual have entered some kind of consensual relationship with a tribe or with an individual tribal member, or the second exception’s analysis of the impact of the non-Indian individual’s conduct on the health and welfare of individual tribal members. Accordingly, the Supreme Court created and applied the Montana exceptions to the situations of individual Indians and non-Indians. To the Court, the tribe is the political representative of a group of Indian people and it is made up of the individual citizens, and the effect on Indian individuals is how the impact of the actions of non-Indians on a reservation is to be measured. When Montana discussed “the political integrity, the economic security, or the health or welfare of the tribe” we understand that the Court was talking about the tribal group, the tribal citizens/members, the individual Indians who make up the tribe. See McClanahan v. Arizona State Tax Comm., 411 U.S. 164, 181 (1973) (“when Congress has legislated on Indian matters, it has most often, dealt with the tribes as collective entities. But those entities are, after all, composed of individual Indians, and the legislation confers individual rights.”); Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d 587, 593-94 (9th Cir. 1983) (Navajo laws against self- help repossessions on the reservation protected the health and welfare of tribal members), cert. denied, 466 U.S. 926 (1984). We follow that understanding here.

Consequently, the application of the second exception of Montana requires us to review whether Mosbarger’s “conduct “threaten[ed] or ha[d] some direct effect on the political integrity, the economic security, or the health or welfare of the tribe[,]” Montana, 450 U.S. at 566, which includes an examination of the impact of her actions on individual tribal citizens. After examining the undisputed facts set out above, we hold that Mosbarger’s conduct of speeding through a school zone on the reservation in violation of tribal law and the posted 20 mph speed limit did pose a serious risk and threatened and endangered young tribal citizens which in turn threatened the political integrity (the continued and future existence and welfare of the Tribe), the economic security of the Tribe and individual Indians and Indian families (since enormous medical bills could have been incurred and the Tribe’s collective earning power and future economic prospects could have been seriously limited), and the health and welfare of the Tribe’s youngest citizens (which impacts the health and welfare of the Tribe as a whole). Mosbarger’s conduct thus meets the factual test of the second exception and the Skokomish Tribe has regulatory and adjudicatory jurisdiction over her actions in the school zone on the Reservation.

Would any court or government wait until there were dead or injured children before taking the kind of protective steps the Skokomish Tribe is undertaking? We think not. And the Montana second exception does not require the tribal government to wait until an actual catastrophic event occurs before taking jurisdiction. The threat of a direct effect on these tribal and individual Indian interests is sufficient to establish tribal jurisdiction over the conduct of non-Indians on non-Indian owned fee lands on a reservation.

We need to address Mosbarger’s two arguments against tribal jurisdiction under the second exception. First, she argues that the Strate decision and several Ninth Circuit cases mandate that we dismiss this action for lack of tribal civil jurisdiction over her conduct. We recognize that federal courts have found tribal civil jurisdiction over non-Indians under the Montana second exception in only a few reported cases. See, e.g., Babbitt Ford, 710 F.2d at 592-94 (tribal ordinance and court judgment enforced against off-reservation business when it came on- reservation to repossess vehicles because the conduct threatened the health and welfare of tribal members and the tribe); Pinoleville Indian Community v. Mendocino County, 684 F.Supp. 1042, 1047 (N.D. Cal. 1988) (tribe had regulatory authority over the operation of cement and asphalt plants on non-Indian owned fee lands on the reservation because the plants would adversely affect the health and welfare of the tribe). The Ninth Circuit, however, has also upheld tribal jurisdiction over non-Indians in several other factual settings. See, e.g., Smith v. Salish Kootenai College, 434 F.3d 1127 (9th Cir. 2006) (en banc); McDonald v. Means, 309 F.3d 530 (9th Cir. 2002); Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201 (9th Cir. 2001) (en banc).

We also recognize that the United States Supreme Court has yet to decide a case in which it approved tribal civil jurisdiction over a non-Indian under the Montana test. But that does not mean that it will never do so. In its most recent case in which it utilized the Montana test to the specific facts before it, the Court stated: “We leave open the question of tribal-court jurisdiction over nonmember defendants in general.” Nevada v. Hicks, 533 U.S. 353, 358 n.2 (2001). Thus, we assume that there must be factual settings under which the Montana test will be met. The Supreme Court must agree with this point because it and all the federal courts continue to recite and apply the Montana test. It is worth repeating that the Court stated emphatically in Montana: “To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non- Indians on their reservations, even on non-Indian fee lands.” Montana, 450 U.S. at 565. We hold that this case presents squarely one of the instances where the Montana test is met and when a tribe can exercise civil jurisdiction over a non- Indian for actions within a reservation even on land deemed to be analogous to non-Indian owned fee land.

A first glance at the Strate decision, however, would seem to mandate a different result. “Our case law establishes that, absent express authorization by federal statute or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited circumstances.” Strate, 520 U.S. at 445. In Strate, two non- Indians had a traffic accident on a state highway within the borders of the Fort Berthold Indian Reservation in North Dakota. The seriously injured plaintiff sued the other driver in tribal court. As mentioned above, the Court analogized the state highway, where the accident occurred, to non-Indian owned fee lands within a reservation. Id. at 456. That being the case, the Court analyzed the situation under the Montana exceptions and held that the tribal court did not have adjudicatory jurisdiction to hear the case since the accident had occurred on a state highway and was between two non-Indian parties. The Court even quoted the Eighth Circuit that the suit was “distinctly non-tribal in nature” and was a “run-of-the-mill accident” involving “two non-Indians.” Strate, 520 U.S. at 457. (There were no tribal nor Indian parties or interests at issue in the original tribal court proceeding.)

Tribal court jurisdiction over the tort case could not be justified by the second Montana exception because the second exception was not satisfied just because a non-Indian might have driven carelessly on non-Indian fee lands on the reservation. “Undoubtedly, those who drive carelessly on a public highway running through a reservation endanger all in the vicinity, and surely jeopardize the safety of tribal members. But if Montana’s second exception requires no more, the exception would severely shrink the rule.” Strate, 520 U.S. at 457-58. The Court clearly read the second exception narrowly and even called it an “exceptional category.” Id. at 458-59. But the Court did not read the exception out of existence either. The Strate Court did not do away with the second exception and the Court continues to use it in deciding these types of cases. Atkinson Trading Company, Inc. v. Shirley, 532 U.S. 645, 657 (2001).

Notwithstanding the Court’s decision in the factual setting of Strate, we do not consider it to mandate a particular decision in the Mosbarger appeal. Here, the Skokomish Tribe is the plaintiff. This is not a suit between non-Indians in which tribal interests play no role. In sharp contrast, there is a significant and very important tribal interest at stake in this litigation; the assertion and exercise of the Tribe’s regulatory and adjudicatory authority to protect the political integrity, economic security, and the health and welfare of the Tribe and tribal children. There were no tribal or Indian plaintiffs or defendants in the original tribal court suit in Strate, and there was a complete absence of tribal issues and interests in that case.

In addition, Strate was a private tort action brought by one non-Indian against another. In contrast, the present case concerns a tribal government enforcing its laws and protecting tribal citizens. And finally, while the Strate Court was satisfied that the injured plaintiff in that case could bring her lawsuit in a North Dakota state court, Strate, 520 U.S. at 459, and in fact she had already filed a state lawsuit, id. at 445 n. 4, in the instant case it does not appear that the Tribe can pursue its case in any other forum. Hence, the important tribal interests at stake and the issue of Mosbarger’s dangerous conduct cannot be litigated in another court. We consider all these points to be significant enough by themselves, and even more so collectively, to distinguish the Strate decision and its facts from the present case. Instead, we have analyzed the Supreme Court’s Montana rule and its second exception to the specific facts in the case before us in reaching our decision. We are also unconvinced by Mosbarger’s argument based on the Ninth Circuit cases she cites.1 In these cases, an Indian tribe was not a party in the original tribal court proceedings, there were no tribal interests at issue, and the plaintiffs had other state or federal forums available to them. All three of these factors are exactly the same as in Strate. The Ninth Circuit cases were also private tort suits brought under fact patterns that are quite dissimilar to the facts before us. In contrast, the Mosbarger case is not a tort case between private non- Indian litigants but instead it raises the issue of a violation of the Tribal Code and the suit is brought by the Skokomish Tribe. Mosbarger’s conduct created a serious risk to the political integrity, economic security, and the health and welfare of numerous tribal citizens, and threatened tribal interests in its own future and health and that of its tribal citizens and families. The Ninth Circuit cases are not applicable to the facts before us and do not suggest that we should dismiss this case due to a lack of tribal jurisdiction. We remain convinced that the Montana second exception remains a viable avenue to find tribal civil jurisdiction over non-Indians when the proper facts are presented and that the instant case is one of those situations.

Mosbarger also raises a second point. She cites the Ninth Circuit case Ford Motor Company v. Todecheene, 394 F.3d 1170, 1181 (9th Cir. 2005) and its use of the idea of “Tribal Self-Government” in discussing the second Montana exception. The Ninth Circuit panel correctly cited the Supreme Court’s use of similar ideas in setting out the second exception. Montana, 450 U.S. at 564; Strate, 520 U.S. at 459; Hicks, 533 U.S. at 360-61. In these passages, the Supreme Court cited and paraphrased several cases that upheld the authority of tribes to regulate their internal affairs and issues of self-government. The Court also quoted Williams v. Lee, 358 U.S. 217, 220 (1959) and its statement about tribal jurisdiction and “the right of reservation Indians to make their own laws and be ruled by them.” Strate, 520 U.S. at 459; see also Hicks, 533 U.S. at 360. Mosbarger interprets these discussions to mean that the second Montana exception can only recognize tribal jurisdiction over non-Indians for conduct on non-Indian lands within reservations when it will protect tribal self-government or control internal relations.2

We do not agree. In fact, to imply or interpret the discussion cited above to mean that the Supreme Court only intended the second exception to grant tribes jurisdiction in self-government and internal relations settings would be internally inconsistent with the Court’s expressly stated Montana test. This is so because this interpretation would by implication violate the express definition of the second exception given by the Court. The second exception recognizes tribal jurisdiction to regulate and adjudicate the actions of non-members of the tribe, people who are external and outside the citizenship and membership of the tribe. Instead of only looking internally into tribal relations and to internal tribal self-governance, the Montana exceptions look to a tribe’s external relationships and the conduct of non-Indian persons on lands not owned by a tribe. How then could we interpret the second exception so narrowly as to only apply it to a tribe’s internal relations or self-government? How could the external looking Montana exception only be applied to internal tribal affairs?

Instead, the second exception and the Court’s express definition of this avenue for tribal jurisdiction over non-Indians cannot be read that narrowly because the Court developed the test to be applied to non-Indians and to the conduct of non-Indians on non-Indian owned lands that threaten or directly affect the political integrity, economic security, and health and welfare of a tribe. We will apply the exception as the Supreme Court expressly defined it -- to non- Indians and non-tribal members and their conduct, that is, to persons and actions outside the internal, self-governmental activities of a tribe. We do not accept the strained interpretation and implied repeal of the Montana second exception that Mosbarger proposes.

Indeed, we think that if the U.S. Supreme Court was faced with this exact question it would agree that the Montana test expressly authorizes in the right circumstances a tribe’s exercise of jurisdiction over external relationships and jurisdictional authority over non-Indians and their conduct on non-Indian owned lands. Montana did not concern tribal control over internal issues, tribal citizens, or tribal self-government issues. That case and its progeny decided when tribal governments and courts could reach outside their internal affairs and have regulatory and adjudicatory jurisdiction over non-Indians. Montana by its own express terms is about the external relations and powers of a tribe.

Consequently, we have applied Montana and its second exception straight up, as the Court defined it, to the factual situation before us. We have applied the test of when a tribal government can exercise its jurisdiction over persons and activities external to the tribal government which occurred within the reservation but on lands the Supreme Court directs us to consider as not being owned by the Skokomish Tribe. We hold that the second Montana exception is met in the specific factual setting of this case and that the Skokomish Tribe possesses governmental regulatory and judicial adjudicatory power to regulate and adjudicate the conduct of Mosbarger when she violated the speed limit in the school zone on a state highway within the reservation borders.

B. Parsons

As we have noted, the test established by the Supreme Court for asserting tribal civil jurisdiction over a non-Indian on non-Indian owned lands under Montana is a factual one. In Case No. I 11834, the trial court appears to have relied on two key factual findings to reach its conclusion that Parsons’ speeding posed a threat or had some direct effect on the health or welfare of the Tribe and therefore came within the second exception of Montana. First, the trial court appears to have relied on a declaration of the Director of the Tribe’s Department of Public Safety in finding that “the section of Highway 101 between the Highway 106 junction northward to Reservation Road” (emphasis added) constitutes a sort of commercial district and civic center characterized by the presence of several tribally owned businesses, the Tribal Casino, a church, a cemetery, and the Hood Canal School. See Order Denying Motion to Reconsider, Skokomish Tribal Court, June 16, 2005, p. 2. The Court then found that Parsons speeding occurred in this commercial district/civic center. See Order Denying Motion to Reconsider, Skokomish Tribal Court, June 16, 2005, p. 4 (“In this specific instance, Parsons’ conduct, exceeding the posted speed limit within the reservation on Highway 101 between the junction with Highway 106 and Reservation Road, ‘threatens or has some direct effect on the health or welfare of the tribe.’”).

A careful review of the record, however, establishes that Parsons was clocked by radar speeding while he was south of the junction of Highway 101 and 106, not north of it. While the record indicates that Parsons ultimately pulled over and was cited north of the junction of Highways 101 and 106 at Reservation Road, there is no evidence whatsoever in the record that Parsons was speeding through the commercial district/civic center that apparently begins at the junction of Highways 101 and 106 and continues north to Reservation Road. A finding such as this that is not supported by evidence in the record is clearly erroneous and must be reversed under the standard of review set forth by the Skokomish Tribal Court of Appeals in Johns and McGhee v. Allen, supra.

The Tribe has failed to prove exactly where on the Reservation Parsons was allegedly speeding and it has failed to establish facts about the character of that location so that we can apply the Montana test to Parsons’ conduct as we have applied the test to Mosbarger’s conduct. Based on this record, the Tribe has not carried its burden of proving that it has jurisdiction over Parsons’ conduct on the reservation. We therefore vacate the trial court judgment in Case No. I 11834 and dismiss the citation against Parsons.

IV. Conclusion

In accordance with the reasoning and federal case law set forth above, we affirm the decision of the Skokomish Trial Court in case I 12774 Skokomish Tribe v. Mosbarger.

In case I 11834, Skokomish Tribe v. Parsons, we vacate the trial court judgment and dismiss the case because the Tribe did not establish the factual test required for tribal civil jurisdiction over Parsons’ conduct on the reservation.

Pursuant to Skokomish Tribal Code section 3.01.115, Appellate Rule 115, we order each party to bear their own costs.

1 Ford Motor Company v. Todecheene, 394 F.3d 1170, 1181 (9th Cir. 2005); County of Lewis v. Allen, 163 F.3d 509 (9th Cir. 1998) (en banc); Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997). Ninth Circuit cases are persuasive precedent and we consider them carefully.

2 A reasonable argument can be made that the Skokomish Tribe is serving self- government interests when it protects its future tribal leaders and citizens by protecting its minor citizens. Furthermore, the enforcement of tribal laws is an act of self-government.

[806] William O. Bronson, James, Gray, Bronson & Swanberg, Great Falls, Montana, for defendants-appellants.

[807] Channing J. Hartelius and Cameron Ferguson, Hartelius, Ferguson, Baker & Kazda, Great Falls, Montana, for plaintiff-appellee.

Jeanne S. Whiteing, Whiteing & Smith, Boulder, Colorado and Donald G. Kittson, Browning, Montana, for amicus curiae, Blackfeet Tribe.

George C. Dalthorp and Michael E. Webster, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Montana, for amicus curiae, National Association of Independent Insurers.

Paul R. Haffeman, Davis, Hatley, Haffeman & Tighe, Great Falls, Montana, for amicus curiae, Glacier Electric Cooperative, Inc.

Harley R. Harris, Office of Attorney General, Helena, Montana, for amicus curiae, State of Montana.

K. Jerome Gottschalk, Native American Rights Fund, Boulder, Colorado, for amicus curiae, The Three Affiliated Tribes of the Fort Berthold Reservation, and the Chippewa Cree Tribe of the Rocky Boy's Reservation.

Charles G. Cole, Steptoe & Johnson, Washington, District of Columbia, for amicus curiae, Burlington Northern Railroad Co.

Steven J. Lechner, Denver, Colorado, for amicus curiae, Mountain States Legal Foundation.

Lana E. Marcussen, Albuquerque, New Mexico, for amicus curiae, The Bighorn Livestock Association.

Before: WRIGHT, REINHARDT, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

This appeal presents the question of whether, and under what circumstances, a tribal court tort judgment is entitled to recognition in the United States Courts. We conclude that the principles of comity, not full faith and credit, govern whether a district court should recognize and enforce a tribal court judgment. In this instance, because the tribal court lacked jurisdiction, its judgment is not entitled to recognition in the United States courts.

I

The traffic accident which precipitated this action involved Mary Jane Wilson, who is an enrolled member of the Blackfeet Indian Tribe, and Thomas Marchington, who is not. On July 17, 1989, Marchington was driving on U.S. Highway 2 within the boundaries of the Blackfeet Indian Reservation in Montana on assignment for his employer Inland Empire Shows, an Idaho carnival company. Wilson, driving ahead of Marchington on the two-lane road, signalled a left turn. Marchington, in ignorance or in disregard of Wilson's intent, attempted to pass her on the left, careening into her car as she exited Highway 2.

Wilson sued Marchington and Inland Empire in the Blackfeet Tribal Court. The tribal jury found in favor of Wilson and awarded her $246,100. The Blackfeet Court of Appeals reversed for a hearing on whether punitive damages had been improperly awarded, but the Blackfeet Supreme Court reversed the Blackfeet Court of Appeals and reinstated the original judgment in favor of Wilson.

Claiming her judgment was entitled to full faith and credit or comity, Wilson brought suit in the United States District Court for the District of Montana to register the tribal court judgment in the federal court system. The district court granted summary judgment in favor of Wilson.

II

No legal judgment has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. Because states and Indian tribes coexist as sovereign governments, they have no direct power to enforce their judgments in each other's jurisdictions. By contrast, the United States Constitution and implementing legislation require full faith and credit be given to judgments of sister states, territories, and possessions of the United States. U.S. [808] Const. art. IV, § 1, cl. 1; 28 U.S.C. § 1738. The extent to which the United States, or any state, honors the judicial decrees of foreign nations is a matter of choice, governed by "the comity of nations." Hilton v. Guyot, 159 U.S. 113, 163, 16 S.Ct. 139, 143, 40 L.Ed. 95 (1895).

Determining comity to be a proper basis for recognizing a tribal court judgment is not a remarkable notion; indeed, both parties agree that it is appropriate. However, Wilson asserts comity only as an alternative analysis, contending that a tribal judgment must be recognized by the United States under 28 U.S.C. § 1738, the implementing legislation of the United States Constitution's Full Faith and Credit Clause.

The Constitution's Full Faith and Credit Clause provides:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

U.S. Const. art. IV, § 1.

By its terms, the Full Faith and Credit Clause applies only to the states. Nothing in debates of the Constitutional Convention concerning the clause indicates the framers thought the clause would apply to Indian tribes. The Constitution is silent about recognition of tribal judgments, though it specifically addresses other tribal concerns. See U.S. Const. art. I, § 2, cl. 3 (excluding non-taxed Indians from the calculation of representative apportionment); art. I, § 8, cl. 3 (providing Congress the power to regulate commerce with the Indian tribes); amend. XIV, § 2 (excluding non-taxed Indians from the calculation of representative apportionment).^[1] Thus, the Constitution itself does not afford full faith and credit to Indian tribal judgments.

Initial legislation implementing the full faith and credit clause was passed in 1790. The statute was modified in 1804 to include the extension of full faith and credit to United States territories and possessions. Subsequent technical amendments were made and the current full faith and credit statute reads in relevant part:

Such Acts, records, and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.

28 U.S.C. § 1738.

Because Indian nations are not referenced in the statute, the question is whether tribes are "territories or possessions" of the United States under the statute. The United States Supreme Court has not ruled on the precise issue and its pronouncements on collateral matters are inconclusive. For example, in United States ex rel. Mackey v. Coxe, 59 U.S. (18 How.) 100, 103-04, 15 L.Ed. 299 (1855), the Court held the Cherokee nation was a territory as that term was used in a federal letters of administration statute. By contrast, in New York ex rel. Kopel v. Bingham, 211 U.S. 468, 474-75, 29 S.Ct. 190, 191-92, 53 L.Ed. 286 (1909), the Court cited with approval Ex Parte Morgan, 20 F. 298, 305 (W.D.Ark.1883) in which the district court held that the Cherokee nation was not a "territory" under the federal extradition statute. State courts have reached varied results, citing either Mackey or Morgan as authority, depending on the outcome.^[2]

In our view, the decisive factor in determining Congress's intent was the enactment [809] of subsequent statutes which expressly extended full faith and credit to certain tribal proceedings: the Indian Land Consolidation Act, 25 U.S.C. §§ 2201-2211 (1983) (extending full faith and credit for certain actions involving trust, restricted or controlled lands), the Maine Indian Claims Settlement Act, 25 U.S.C. § 1725(g) (1980) (requiring the Passamaquoddy Tribe, the Penobscot Nation and the State of Maine to "give full faith and credit to the judicial proceedings of each other"), and the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901 et seq. (extending full faith and credit to tribal custody proceedings). The Indian Child Welfare Act provides in relevant part:

The United States, every State, every territory or possession of the United States, and every Indian tribe shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity.

Id. § 1911(d).

A later legislative act can be regarded as a legislative interpretation of an earlier act and "is therefore entitled to great weight in resolving any ambiguities and doubts." Erlenbaugh v. United States, 409 U.S. 239, 243-44, 93 S.Ct. 477, 480, 34 L.Ed.2d 446 (1972) (quoting United States v. Stewart, 311 U.S. 60, 64-65, 61 S.Ct. 102, 105, 85 L.Ed. 40 (1940)). If full faith and credit had already been extended to Indian tribes, enactment of the Indian Land Consolidation Act, the Maine Indian Claims Settlement Act, and the Indian Child Welfare Act would not have been necessary. Further, the separate listing of territories, possessions and Indian tribes in the Indian Child Welfare Act provides an indication that Congress did not view these terms as synonymous. Thus, we conclude that Congress did not extend full faith and credit to the tribes under 28 U.S.C. § 1738.

Further, if Congress had specifically intended to include Indian tribes under the umbrella of 28 U.S.C. § 1738, it could have easily done so either by specifically referencing them in the 1804 amendments, or by further amending the statute once ambiguous judicial constructions appeared. It chose not to, but rather elected to create a special exception in cases of Indian child custody determinations and land trusts.

Given this history, it would be imprudent of us to now construe the phrase "territories and possessions" in the 1804 statute to assume the meaning of the language Congress used in the Indian Child Welfare Act ("every territory or possession of the United States, and every Indian tribe") (emphasis added) and Indian Land Consolidation Act.

Certainly, there are policy reasons which could support an extension of full faith and credit to Indian tribes. Those decisions, however, are within the province of Congress or the states,^[3] not this Court. Full faith and credit is not extended to tribal judgments by the Constitution or Congressional act, and we decline to extend it judicially.

III

In absence of a Congressional extension of full faith and credit, the recognition and enforcement of tribal judgments in federal court must inevitably rest on the principles of comity. Comity "is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other." Hilton v. Guyot, 159 U.S. 113, 163-64, 16 S.Ct. 139, 143-44, 40 L.Ed. 95 (1895). As a general policy, "[c]omity should be withheld only when its acceptance would be contrary or prejudicial to the interest of the nation called upon to give it effect." Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir.1971). At its core, [810] comity involves a balancing of interests. "[I]t is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws." Hilton, 159 U.S. at 164, 16 S.Ct. at 143. Although the status of Indian tribes as "dependent domestic nations" presents some unique circumstances, comity still affords the best general analytical framework for recognizing tribal judgments.

As we recognized in Her Majesty the Queen v. Gilbertson, 597 F.2d 1161, 1163 n. 4 (9th Cir.1979), Hilton provides the guiding principles of comity.^[4] More recently, the Restatement (Third) of Foreign Relations Law of the United States (1986) [hereinafter Restatement (Third) ] suggested two mandatory and six discretionary grounds for nonrecognition of foreign judgments.^[5] While Hilton and the Restatement (Third) provide sound guidance for assessing legal judgments of other nations, special considerations arising out of existing Indian law merit some modification in the application of comity to tribal judgments. In synthesizing the traditional elements of comity with the special requirements of Indian law, we conclude that, as a general principle, federal courts should recognize and enforce tribal judgments. However, federal courts must neither recognize nor enforce tribal judgments if:

(1) the tribal court did not have both personal and subject matter jurisdiction; or

(2) the defendant was not afforded due process of law.

In addition, a federal court may, in its discretion, decline to recognize and enforce a tribal judgment on equitable grounds, including the following circumstances:

(1) the judgment was obtained by fraud;

(2) the judgment conflicts with another final judgment that is entitled to recognition;

(3) the judgment is inconsistent with the parties' contractual choice of forum; or

(4) recognition of the judgment, or the cause of action upon which it is based, is against the public policy of the United States or the forum state in which recognition of the judgment is sought.

The lack of personal jurisdiction mandates rejection of a foreign judgment under [811] the Restatement (Third) and that requirement must logically extend to tribal judgments. Although the Restatement (Third) lists subject matter jurisdiction as a discretionary inquiry, the existence of subject matter jurisdiction is a threshold inquiry in virtually every federal examination of a tribal judgment. E.g., Strate v. A-1 Contractors, ___ U.S. ___, ___, 117 S.Ct. 1404, 1411, 137 L.Ed.2d 661 (1997); Montana v. United States, 450 U.S. 544, 565-66, 101 S.Ct. 1245, 1258-59, 67 L.Ed.2d 493 (1981). Additionally, the existence of subject matter jurisdiction is mandatory under the Uniform Foreign Money-Judgments Recognition Act which has been adopted by twenty-five states, including Montana. Louise E. Teitz, Transnational Litigation 253 & n. 5 (1996); Mont.Code Ann. § 25-9-601 et seq. Accordingly, the existence of both personal and subject matter jurisdiction is a necessary predicate for federal court recognition and enforcement of a tribal judgment.

A federal court must also reject a tribal judgment if the defendant was not afforded due process of law. "It has long been the law of the United State that a foreign judgment cannot be enforced if it was obtained in a manner that did not accord with the basics of due process." Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1410 (9th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 519, 133 L.Ed.2d 427 (1995). The guarantees of due process are vital to our system of democracy. We demand that foreign nations afford United States citizens due process of law before recognizing foreign judgments; we must ask no less of Native American tribes.

Due process, as that term is employed in comity, encompasses most of the Hilton factors, namely that there has been opportunity for a full and fair trial before an impartial tribunal that conducts the trial upon regular proceedings after proper service or voluntary appearance of the defendant, and that there is no showing of prejudice in the tribal court or in the system of governing laws. Further, as the Restatement (Third) noted, evidence "that the judiciary was dominated by the political branches of government or by an opposing litigant, or that a party was unable to obtain counsel, to secure documents or attendance of witnesses, or to have access to appeal or review, would support a conclusion that the legal system was one whose judgments are not entitled to recognition." Restatement (Third) § 482 cmt. b.

Comity does not require that a tribe utilize judicial procedures identical to those used in the United States Courts. "Foreign-law notions are not per se disharmonious with due process by reason of their divergence from the common-law notions of procedure." Panama Processes, S.A. v. Cities Serv. Co., 796 P.2d 276, 286 n. 36 (Okla. 1990). Indeed, Hilton rejected challenges to a judgment based on lack of adequate cross-examination and unsworn testimony. 159 U.S. at 205, 16 S.Ct. at 159. Federal courts must also be careful to respect tribal jurisprudence along with the special customs and practical limitations of tribal court systems. Extending comity to tribal judgments is not an invitation for the federal courts to exercise unnecessary judicial paternalism in derogation of tribal self-governance. However, the tribal court proceedings must afford the defendant the basic tenets of due process or the judgment will not be recognized by the United States.

Marchington urges us to require reciprocal recognition of judgments as an additional mandatory prerequisite. In Hilton, the Supreme Court determined that a judgment from a foreign country would not be enforced by the United States courts if the foreign country would not enforce a similar American judgment in its courts. 159 U.S. at 210, 16 S.Ct. at 161. However, the reciprocity requirement has fallen into disfavor. In Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964), the Supreme Court stated, "[a]lthough Hilton v. Guyot ... contains some broad language about the relationship of reciprocity to comity, the case in fact imposed a requirement of reciprocity only in regard to conclusiveness of judgments, and even then only in limited circumstances." Id. at 411, 84 S.Ct. at 931. According to the Restatement (Second) of Conflict of Laws (1988) [hereinafter Restatement (Second)], "[e]xcept when otherwise required by local statute, the great majority of State and federal courts have [812] extended recognition to judgments of foreign nations without regard to any question of reciprocity." § 98 cmt. f. The Restatement (Second) addresses the Hilton problem by noting that the decision involved "one isolated situation," and suggesting that Hilton be limited to its facts. Id. Additionally, Judge Learned Hand has observed that the Supreme Court "certainly did not mean to hold that an American court was to recognize no obligations or duties arising elsewhere until it appeared that the sovereign of the locus reciprocally recognized similar obligations existing here. That doctrine I am happy to say is not a part of American jurisprudence." Direction der Disconto-Gesellschaft v. United States Steel Corp., 300 F. 741, 747 (S.D.N.Y.1924), aff'd, 267 U.S. 22, 45 S.Ct. 207, 69 L.Ed. 495 (1925); see Cunard S.S. Co. Ltd. v. Salen Reefer Servs. AB, 773 F.2d 452, 460 (2d Cir.1985).

Although courts have expressed disaffection for the reciprocity requirement, they have not entirely disavowed it. For example, in Gilbertson, we recognized that "the reciprocity requirement has fallen into some disfavor," 597 F.2d at 1164 n. 6, and agreed that "reciprocity may no longer be a requirement," id. at 1165-66. However, we also noted that reciprocity "certainly remains a factor which may be considered in deciding whether to recognize a foreign country's judgment for taxes." Id. at 1166.

The general rationale underlying rejection of the reciprocity requirement is that it is a matter of diplomacy, best negotiated by the executive and legislative branches. There are, of course, substantive differences between foreign relations with other nations and domestic relations with Native American tribes. Further, a policy of requiring reciprocity with foreign nations has practical limits which would not affect a domestic analysis. If a litigant sought recognition of a Djibouti judgment in Montana, for example, it is unlikely that Djibouti would have had the prior opportunity to consider recognition of a Montana judgment.

Despite these dissimilarities, the theory that the imposition of a reciprocity requirement is not a matter for courts to decide independently is generally sound. The question of whether a reciprocity requirement ought to be imposed on an Indian tribe before its judgments may be recognized is essentially a public policy question best left to the executive and legislative branches. The fact that some states have chosen to impose such a condition by statute reinforces this conclusion,^[6] as does the judicial response of looking to applicable statutes to decide reciprocity issues. See, e.g., Banque Libanaise Pour Le Commerce v. Khreich, 915 F.2d 1000, 1003-04 (5th Cir.1990) (examining the Texas Recognition Act to determine if an Abu Dahbi judgment should be enforced).

Neither the State of Montana nor, more relevantly, Congress has spoken on this question and we do not believe that Hilton or any controlling case law concerning recognition of foreign judgments requires a district court to reject a tribal judgment for lack of reciprocity. Thus, we decline Marchington's suggestion to adopt reciprocity as a judicially-created mandatory requirement.^[7]

Lack of tribal jurisdiction and absence of due process, then, are the only mandatory reasons for a district court to reject a tribal judgment. The court may, in the exercise of [813] its discretion, choose not to honor a tribal judgment for one of the other enumerated reasons. This approach satisfies two competing concerns: it provides tribes with a mechanism by which the judgments of their courts may be recognized by the United States while assuring defendants of due process of law and other safeguards inherent in our judicial system.

IV

We reject the assertions of Marchington and several Amicus Curiae that the recognition of tribal judgments requires the application of state, rather than federal, law. We apply federal common law when a federal rule of decision is "necessary to protect uniquely federal interests." Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 426, 84 S.Ct. 923, 939, 11 L.Ed.2d 804 (1964). Indian law is uniquely federal in nature, having been drawn from the Constitution, treaties, legislation, and an "intricate web of judicially made Indian law." Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 206, 98 S.Ct. 1011, 1020, 55 L.Ed.2d 209 (1978). State law, especially the compacts between a state and a tribe, may be of substantial significance in a particular case. However, the quintessentially federal character of Native American law, coupled with the imperative of consistency in federal recognition of tribal court judgments, by necessity require that the ultimate decision governing the recognition and enforcement of a tribal judgment by the United States be founded on federal law. Chilkat Indian Village v. Johnson, 870 F.2d 1469, 1473 (9th Cir.1989); see also In re Greene, 980 F.2d 590, 595 (9th Cir.1992) ("[T]he [district] court should have looked at the scope of tribal immunity under federal law, rather than the extent of comity afforded under state law.").

V

Applying the comity analysis to this case, we find that the tribal judgment is not entitled to recognition or enforcement because the tribal court lacked subject matter jurisdiction, one of the mandatory reasons for refusing to recognize a tribal court judgment. Our jurisdictional determination is commanded by Strate v. A-1 Contractors, ___ U.S. ___, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997), decided April 28, 1997.

The Supreme Court's holding in Strate is succinctly stated in its opening paragraphs: "[T]ribal courts may not entertain claims against nonmembers arising out of accidents on state highways, absent a statute or treaty authorizing the tribe to govern the conduct of nonmembers on the highway in question." Id. at ___, 117 S.Ct. at 1408.

The Supreme Court analyzed the North Dakota highway at issue in Strate, and concluded that "[t]he right-of-way North Dakota acquired for the State's highway renders the 6.59-mile stretch equivalent, for nonmember governance purposes, to alienated, non-Indian land." Id. at ___, 117 S.Ct. at 1413 (footnote omitted). To arrive at this conclusion, the Supreme Court made the following observations about the highway right-of-way: (1) the right-of-way was obtained pursuant to congressional legislation; (2) the grant of the right-of-way was acquired with the consent of the Indian tribe; (3) the right-of-way is open to the public; and (4) the right-of-way is controlled and maintained by the State. Id. at ___, 117 S.Ct. at 1414.

U.S. Highway 2, the road at issue in this appeal, is similar in all relevant respects to the highway in Strate. It is located on a right-of-way granted to the State of Montana under Section 4 of the Act of March 3, 1901, ch. 832, 31 Stat. 1058, 1084 (codified at 25 U.S.C. § 311). Under the section, the Secretary of the Interior is authorized

to grant permission ... to the proper State or local authorities for the opening and establishment of public highways in accordance with the laws of the State or territory in which the lands are situated, through any Indian reservation or through any lands which have been allotted in severalty to any individual Indians under laws or treaties but which have not been conveyed to the allottees with full power of alienation.

See also Act of March 4, 1915, ch. 161, § 2, 38 Stat. 1188 ("That the legal authorities charged with the duty of laying out and opening public roads and highways under the [814] laws of the State of Montana, having jurisdiction over any territory embraced within any Indian reservation in Montana, are hereby authorized and empowered to lay out and open public roads within any of the said Indian reservations...."). Therefore, like the highway at issue in Strate, Highway 2 is a state highway constructed on a right-of-way granted pursuant to a federal statute.

Also similar to the situation in Strate, the tribe had consented to the right-of-way grant. Under the Treaty of 1855 with the Blackfeet Nation, the tribe agreed:

For the purpose of establishing travelling thoroughfares through their country, and the better to enable the President to execute the provisions of this treaty, the aforesaid nations and tribes do hereby consent and agree and the United States may, within the countries respective occupied and claimed by them, construct roads of every description....

Treaty with the Blackfeet Nation, October 17, 1855, U.S.-Blackfeet Nation, art. 8, 11 Stat. 867.

Finally, also as in Strate, the district court found, and no party or Amici denies, that the public has unrestricted access to Highway 2.

Thus, this case mirrors the facts of Strate almost precisely: it was an automobile accident between two individuals on a United States highway designed, built, and maintained by the State of Montana, with no statute or treaty authorizing the tribe to govern the conduct of nonmembers on the highway. The tribe had consented to construction of the road to which the general public had unrestricted access.

The question of whether the accident occurred on, or just off, Highway 2 is disputed by the parties. The district court, however, determined that the accident occurred on Highway 2, and we review this finding only for clear error. Campbell v. Wood, 18 F.3d 662, 681 (9th Cir.1994) (en banc). There are facts in the record which support the district court's conclusion. The accident occurred while Marchington was trying to pass Wilson who, presumably unknown to Marchington, was turning left. Wilson's car apparently was struck in the side. Wilson argues the impact may have occurred just off Highway 2 because the truck was trying to avoid Wilson by driving on the left. However, both parties agreed that the State of Montana's right-of-way did not end at the pavement and could have extended up to fifty feet from the center line. We also note that the description of the accident by the Blackfeet Supreme Court would seem to support the inference that the accident occurred on Highway 2.^[8] Given these facts, there was no clear error in the district court's determination.

In Strate, the Supreme Court noted that even when the accident occurs on alienated land, a tort action may be brought in tribal court if one of the two following exceptions outlined in Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), is met: (1) regulation of consensual relationships and (2) regulation of conduct which "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Montana, 450 U.S. at 566, 101 S.Ct. at 1258. The Supreme Court concluded in Strate, however, that a car accident on a public highway does not meet either Montana exception. Strate, ___ U.S. at ___, ___, 117 S.Ct. at 1415, 1416.

Wilson and several Amici claim that a traffic accident injuring a tribal member sufficiently affects the economic security, political integrity, or health and welfare of the tribe, thus satisfying the second Montana exception. However, in Strate, this notion was rejected by Justice Ginsburg, speaking for the Court, who observed that:

Undoubtedly, those who drive carelessly on a public highway running through a reservation endanger all in the vicinity, and surely jeopardize the safety of tribal members. But if Montana's second exception requires no more, the exception would severely shrink the rule. [815] Id., ___ U.S. at ___, 117 S.Ct. at 1415. If the possibility of injuring multiple tribal members does not satisfy the second Montana exception under Strate, then, perforce, Wilson's status as a tribal member alone cannot.^[9] To invoke the second Montana exception, the impact must be "demonstrably serious and must imperil the political integrity, the economic security, or the health and welfare of the Tribe." Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408, 431, 109 S.Ct. 2994, 3008, 106 L.Ed.2d 343 (1989). It is difficult to argue that these important interests will be diminished, much less jeopardized, if Wilson must present her individual tort claims in state or federal court, where she has plain, speedy, and adequate remedies.^[10] As Justice Ginsburg observed, "[n]either regulatory nor adjudicatory authority over the state highway accident at issue is needed to preserve the right of reservation Indians to make their own laws and be ruled by them.... Opening the Tribal Court for [the plaintiff's] optional use is not necessary to protect tribal self government[.]" Strate, ___ U.S. at ___, 117 S.Ct. at 1416 (internal quotation omitted). Thus, although the parameters of the Strate holding are not fully defined, its application to the specific circumstances of this case precludes tribal court jurisdiction.

Finally, the Blackfeet Tribe (as Amicus Curiae), contends that Hinshaw v. Mahler, 42 F.3d 1178 (9th Cir.1994), which found tribal jurisdiction in an automobile accident, controls. However, Hinshaw has been effectively overruled by Strate for its general propositions concerning tribal jurisdiction and is no longer viable law on those issues.

VI

The principles of comity require that a tribal court have competent jurisdiction before its judgment will be recognized by the United States courts. Because the tribal court did not have subject matter jurisdiction over Marchington or Inland Empire Shows, Inc., Wilson's judgment may neither be recognized nor enforced in the United States courts. The district court foresaw this very result, but constrained by Hinshaw, entered summary judgment in favor of Wilson. Ironically, although the district court was correct and even prescient on all substantive matters, we must reverse its judgment in favor of Wilson and remand with instructions to enter judgment in favor of Marchington and Inland Empire Shows. Each party shall bear its own costs on appeal.

REVERSED AND REMANDED

[1] Additionally, as a matter of constitutional philosophy, it may not make sense to extend the constitutional mandate of full faith and credit "to a legal system largely outside the purview of the Constitution." Note, Recognition of Tribal Decisions in State Courts, 37 Stan. L.Rev. 1397, 1414 (1985).

[2] Compare Jim v. CIT Fin. Servs., 87 N.M. 362, 533 P.2d 751 (1975) (citing Mackey and holding that tribes are entitled to full faith and credit) and In re Buehl, 87 Wash.2d 649, 555 P.2d 1334 (1976) (citing CIT and concluding that tribes are entitled to full faith and credit) with Brown v. Babbitt Ford, Inc., 117 Ariz. 192, 571 P.2d 689 (1977) (citing Morgan and holding that an Indian reservation is not a territory for purposes of full faith and credit).

[3] See, e.g., Okla. Stat. tit. 12, § 728 (permitting the Supreme Court of the State of Oklahoma to extend full faith and credit to tribal court judgments); Wis. Stat. § 806.245 (granting full faith and credit to judgments of Wisconsin Indian tribal courts); Wyo. Stat. Ann. § 5-1-111 (granting full faith and credit to judicial decisions of the Eastern Shoshone and Northern Arapaho Tribes of the Wind River Reservation). Montana has judicially refused to extend full faith and credit to tribal orders, judgments and decrees. In re Day, 272 Mont. 170, 900 P.2d 296, 301 (1995).

[4][W]here there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect, the merits of the case should not, in an action brought in this country upon the judgment, be tried afresh, as on a new trial or an appeal, upon the mere assertion of the party that the judgment was erroneous in law or in fact.

Hilton, 159 U.S. at 202-03, 16 S.Ct. at 158.

[5]The Restatement (Third) § 482 provides:

(1) A court in the United States may not recognize a judgment of the court of a foreign state if:

(a) the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with due process of law; or

(b) the court that rendered the judgment did not have jurisdiction over the defendant in accordance with the law of the rendering state and with the rules set forth in § 421.

(2) A court in the United States need not recognize a judgment of the court of a foreign state if:

(a) the court that rendered the judgment did not have jurisdiction of the subject matter of the action;

(b) the defendant did not receive notice of the proceedings in sufficient time to enable him to defend;

(c) the judgment was obtained by fraud;

(d) the cause of action on which the judgment was based, or the judgment itself, is repugnant to the public policy of the United States or of the State where recognition is sought;

(e) the judgment conflicts with another final judgment that is entitled to recognition; or

(f) the proceeding in the foreign country was contrary to an agreement between the parties to submit the controversy on which the judgment is based to another forum.

[6] See, e.g., S.D. Codified Laws § 1-1-25(2)(b) (permitting South Dakota courts to recognize a tribal judgment if the courts of that tribe recognize the orders and judgments of the South Dakota courts); Okla. Stat. tit. 12, § 728(B) (allowing the Supreme Court of Oklahoma to recognize tribal court judgments where the tribal courts agree to grant reciprocity of judgments); Wis. Stat. § 806.245(1)(e) (granting full faith and credit to judgments of Wisconsin Indian tribal court judgments if, inter alia, the tribe grants full faith and credit to the judgments of Wisconsin courts); Wyo. Stat. Ann. § 5-1-111(a)(iv) (granting full faith and credit to the Eastern Shoshone and Northern Arapaho Tribes if, inter alia, the tribal court certifies that it grants full faith and credit to the orders and judgments of Wyoming).

[7] Whether a district court may, in the exercise of its discretion, reject a judgment for lack of reciprocity is a question we leave for another day. Although best left to our sister branches of government, there may be an appropriate case in which the record demonstrates significant public policy factors which might be sufficient for the district court to consider reciprocity under the "public policy" discretionary exception. Thus, we decline to endorse or preclude its discretionary consideration in a proper case.

[8] The Blackfeet Supreme Court provides the following account of the accident: "As plaintiff began her turn off of Highway # 2 onto the Whitford access road defendants' semi-truck crossed over a solid double yellow line running down the center of the highway and struck the left side of plaintiff's vehicle causing injuries to her neck and back."

[9] We rejected a similar Montana contention in Yellowstone County v. Pease, 96 F.3d 1169, 1170-71 (9th Cir.1996) (holding that the Crow tribal court did not have jurisdiction to enjoin enforcement of a tax because a dispute involving one particular property owned by a tribal member was insufficient to invoke the second Montana exception).

[10] This is not only true as a general proposition, but equitable tolling would prevent the assertion of a statute of limitations defense against Wilson based on the passage of time litigating in tribal and federal court if Wilson elects to refile her complaint in state or federal court following remand. Capital Tracing, Inc. v. United States, 63 F.3d 859, 863 (9th Cir.1995) (equitable tolling in federal court); Chance v. Harrison, 272 Mont. 52, 899 P.2d 537, 539 (1995) (equitable tolling in Montana state courts); see also Burnett v. New York Central Railroad Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965) (holding that equitable tolling would apply to an FELA claim timely filed in the wrong venue).

[849] [850] Thomas John Peckham, argued, Alan R. Taradash, Doreen N. Hobson, Rodina C. [851] Cave, Jennifer J. Dumas, on the brief, Albuquerque, NM, Gary M. Hazelton, Bemidji, MN, on the brief, for Appellants.

Roger Herbert Gross, argued, Timothy J. Crocker, on the brief, Minneapolis, MN, Charles R. Powell, Bemidji, MN, on the brief, for Appellees.

Before MURPHY, HANSEN, and GRUENDER, Circuit Judges.

HANSEN, Circuit Judge.

Donald Michael Kelly and the Red Lake Nation Tribal Court ("Tribal Court") appeal the district court's^[1] grant of summary judgment to Chad Dennis Nord and his father Dennis Nord, doing business as Nord Trucking (collectively, "the Nords") in this declaratory judgment action. The district court determined that the Tribal Court lacked jurisdiction over a suit against a non-Indian, nonmember of the Tribe arising from an automobile accident on a state highway within the reservation. We affirm.

I.

In this summary judgment context, we view the facts and their permissible inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); County of Mille Lacs v. Benjamin, 361 F.3d 460, 463 (8th Cir.), cert, denied, 543 U.S. 956, 125 S.Ct. 454, 160 L.Ed.2d 318 (2004). On December 16, 2000, Chad Nord, a non-Indian, was driving a semi-truck owned by Nord Trucking when he collided with an automobile driven by Donald Kelly, a member of the Red Lake Band of Chippewa Indians ("Red Lake Band"). The accident occurred on a stretch of Minnesota Highways 1 and 89, located within the boundaries of the Red Lake Indian Reservation in northern Minnesota. Tribal law enforcement authorities and a tribal ambulance service responded to the accident.

Minnesota Department of Transportation records indicate that, in 1955, the State of Minnesota ("the State") submitted an application and stipulation to the Department of the Interior's Bureau of Indian Affairs for federal approval of a right-of-way to construct a state public highway on the stretch of road at issue. Certified records of the Bureau of Indian Affairs-Land Titles & Records Office include an approved map of the right-of-way, a copy of the State's application and stipulation, and reference to a tribal resolution waiving payment for the land. The Red Lake Band General Council's unanimously approved resolution, dated April 1955, shows that the Red Lake Band considered the State's application for a right-of-way, consented to waive damages to tribal land in light of the benefit conferred by the road improvement, and required the State to pay damages to individual tribal members in exchange for the right-of-way.

In September 2001, Kelly sued the Nords in Tribal Court, seeking damages for personal injuries sustained in the accident. The non-Indian Nords filed a motion to dismiss for lack of jurisdiction, citing Strate v. A-1 Contractors, 520 U.S. 438, 442, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997) (holding "tribal courts may not entertain claims against nonmembers arising out of accidents on state highways, absent a statute or treaty authorizing the tribe to govern the conduct of nonmembers on the highway in question"). The Tribal Court did not rule on the motion to dismiss until September 28, 2005, when it ultimately [852] determined that it had jurisdiction over the dispute. In the meantime, the Nords had filed an action in federal court for a declaratory judgment that the Tribal Court lacked jurisdiction. The parties stipulated to a stay of the federal court action pending resolution of the Tribal Court appeal. The stay was lifted in early February 2006 after the Red Lake Court of Appeals affirmed the Tribal Court's determination that it had jurisdiction.

The Tribal Court then moved the federal district court to dismiss the declaratory judgment action and to stay discovery pending resolution of the motion to dismiss. The Nords filed a motion for summary judgment, arguing that the Tribal Court lacked jurisdiction over Kelly's suit against them. The Tribal Court moved alternatively for a continuance of the summary judgment hearing in order to permit discovery pursuant to Rule 56(f) of the Federal Rules of Civil Procedure. The district court granted summary judgment to the Nords and denied the Tribal Court's motions. The Tribal Court and Kelly^[2] appeal the adverse grant of summary judgment.

II.

We review de novo the district court's grant of summary judgment, applying the same standards as the district court. Plains Commerce Bank v. Long Family Land & Cattle Co., 491 F.3d 878, 884 (8th Cir.2007), cert, granted, ___ U.S. ___, 128 S.Ct. 829, 169 L.Ed.2d 626 (2008). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id.; Fed.R.Civ.P. 56(c). We review for an abuse of discretion the district court's refusal to allow further discovery prior to ruling on a motion for summary judgment. Conner v. Reckitt & Colman, Inc., 84 F.3d 1100, 1103 (8th Cir.1996). The district court does not abuse its discretion in denying a continuance and further discovery where the nonmoving party is not deprived of a fair chance to respond to the summary judgment motion. See Iverson v. Johnson Gas Appliance Co., 172 F.3d 524, 530 (8th Cir.1999). Determining the extent to which an Indian tribe has the power to compel a non-Indian to submit to the civil jurisdiction of a tribal court is a question of federal law, Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 852, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985), and we review the issue de novo, Plains Commerce Bank, 491 F.3d at 884.

This case is controlled by the Supreme Court's decision in Strate, holding that "tribal courts may not entertain claims against nonmembers arising out of accidents on state highways, absent a statute or treaty authorizing the tribe to govern the conduct of nonmembers on the highway in question." 520 U.S. at 442, 117 S.Ct. 1404. The Court's analysis in Strate began with the general and well-established proposition that "absent express authorization by federal statute or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited circumstances." Id. at 445, 117 S.Ct. 1404; see also id. at 453, 117 S.Ct. 1404 ("As to nonmembers . . . a tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction," absent congressional direction otherwise.). The Court explained that, while "tribes retain considerable control over nonmember conduct on tribal land," id. at 454, 117 S.Ct. 1404, generally, in the absence of a statute or treaty authorizing otherwise, and subject to two limited exceptions, [853] "Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation," id. at 446, 117 S.Ct. 1404. This general rule was set forth in Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), which the Court in Strate referred to as "the pathmarking case concerning tribal civil authority over nonmembers." 520 U.S. at 445, 117 S.Ct. 1404.

The Court in Strate determined that the state highway at issue was the equivalent of non-Indian fee land for purposes of determining the tribe's jurisdiction over nonmembers, subject to the general rule of Montana, and found that neither of Montana's exceptions applied. The Montana exceptions provide that "Indian tribes retain inherent sovereign powers to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands" in the following circumstances: (1) to "regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe, or its members, through commercial dealing[s]" and (2) "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. at 565-66, 101 S.Ct. 1245. "Both Montana and Strate rejected tribal authority to regulate nonmembers' activities on land over which the tribe could not assert a landowner's right to occupy and exclude." Nevada v. Hicks, 533 U.S. 353, 359, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) (internal marks omitted). But see id. at 360, 121 S.Ct. 2304 (cautioning that "[t]he ownership status of land . . . is only one factor to consider in determining whether regulation of the activities of nonmembers is 'necessary to protect tribal self-government or to control internal relations,' though `[i]t may sometimes be a dispositive factor'" (quoting Montana, 450 U.S. at 564, 101 S.Ct. 1245)). These Supreme Court precedents indicate that, in applying the Montana exceptions, the key concept is that tribal authority to regulate nonmember activities exists where it is "`necessary to protect tribal self-government or to control internal relations.'" Id. at 360, 121 S.Ct. 2304 (quoting Montana, 450 U.S. at 564, 101 S.Ct. 1245); see also Strate, 520 U.S. at 459, 117 S.Ct. 1404.

The district court determined that the facts of the present case are on all fours with Strate, and we agree. In Strate, as here, the dispute involved claims against a non-Indian^[3] arising out of an automobile accident that occurred on a state highway within an Indian reservation on land in North Dakota held in trust for the Three Affiliated Tribes ("the Tribes"). The Court considered the federally granted right-of-way for the highway, finding that tribal officials had consented to the right-of-way, the Tribes had received just compensation, the purpose of the right-of-way was to facilitate public access, the traffic was subject to the state's control, and the easement included no reservation of tribal dominion or control over the right-of-way. See Strate, 520 U.S. at 455-56, 117 S.Ct. 1404. In light of these facts, the Court determined that the Tribes did not enjoy "a landowner's right to occupy and exclude" on the stretch of highway at issue, rendering it the equivalent of non-Indian [854] fee land within the reservation, and that neither of Montana's exceptions applied to a commonplace automobile accident dispute between strangers on a state public highway. Id. at 454-59, 117 S.Ct. 1404. The Strate Court concluded that the parties were therefore left to pursue their claims "in the state court forum open to all who sustain injuries on North Dakota's highway." Id. at 459, 117 S.Ct. 1404. Similarly here, the district court determined that no statute or treaty authorized the exercise of tribal jurisdiction over nonmembers on the state highway, the State had a federally granted right-of-way to construct and maintain this stretch of road as a public highway with the consent of the Red Lake Band and the payment of just compensation to individual members, and neither of the Montana exceptions applied because the parties were strangers involved in a commonplace automobile accident dispute.

The Tribal Court argues on appeal that the district court's "categorical" application of Strate ignores the Supreme Court's reasoning, which carefully considered the nature of the particular right-of-way at issue. We respectfully disagree. To the contrary, consistent with the analysis set out in Strate, the district court properly considered, and gave effect to, the relevant public records and pertinent regulations that established the federally granted right-of-way.

Specifically, the record contains Minnesota's 1955 stipulation and application to the Department of the Interior, pursuant to federal regulations, seeking permission to open and establish a public highway on this stretch of Indian land and stating that it will be part of the state trunk highway system pursuant to the Constitution of the State of Minnesota.^[4] (J.A. at 57-62.) The record also contains the 1955 tribal resolution, unanimously approved by the Red Lake Band's General Council, referencing Minnesota's right-of-way application to construct the stretch of public highway at issue. (Id, at 26.) The resolution indicates that the road improvement will benefit the tribe, that the tribe waives compensation for damages, and that fair damages should be paid to individual tribal members. (Id.) An affidavit of the supervisor of the Minnesota Department of Transportation, Office of Land Management, certifies the existence of the easement, that the highway is serviced and maintained by the State of Minnesota, and that it is open to the public. (Id. at 30.) Having considered these documents, the district court then "categorically" applied the holding of Strate, finding it unnecessary to consider evidence of the parties' particular conduct with regard to the right-of-way, and we agree with the district court's analysis.

Consistent with the reasoning of Strate, we give effect to the plain language of the right-of-way granting instruments. There is no indication in the public records that the Red Lake Band retained any "gatekeeping right" over the public highway, no assertion that the right-of-way is no longer maintained as part of the State's highway, and no assertion that any statute or treaty grants or retains tribal authority over nonmembers in this situation. See Strate, 520 U.S. at 456, 117 S.Ct. 1404. Therefore, the Red Lake Band has no "right of absolute and exclusive use and occupation" of that land, id. (internal marks omitted), and the public highway at issue, as in Strate, is the equivalent of alienated, non-Indian land for purposes of regulating the activities of nonmembers. See also Boxx v. Long Warrior, 265 F.3d 771, 775 (9th Cir.2001) (considering the plain language of a right-of-way for a National Park Service road over Indian land and determining that the tribe [855] had "expressly reserved no right to exercise dominion or control over the right-of-way" (internal marks omitted)), cert, denied, 535 U.S. 1034, 122 S.Ct. 1790, 152 L.Ed.2d 649 (2002), disapproved on other grounds, Smith v. Salish Kootenai Coll., 434 F.3d 1127, 1137 n. 4 (9th Cir.2006) (en banc).

The Tribal Court argues that additional discovery was necessary to demonstrate that the parties to the 1955 agreement believed the right-of-way would confer only limited rights to the State. Specifically, the Tribal Court asserts that evidence of the course of conduct between the Red Lake Band and the State would confirm their understanding that the right-of-way permitted only the construction, use, and maintenance of a highway and did not confer regulatory Or adjudicatory authority on the State with regard to nonmembers.

We need not look to course-of-conduct evidence in this case. The Court in Strate plainly indicated that absent explicit authority otherwise, the loss of regulatory jurisdiction is implied with the loss of a landowner's right to occupy and exclude; and "[as] long as the stretch is maintained as part of the State's highway, the Tribe [] cannot assert a landowner's right to occupy and exclude." 520 U.S. at 456, 117 S.Ct. 1404. Cf. South Dakota v. Bourland, 508 U.S. 679, 689, 113 S.Ct. 2309, 124 L.Ed.2d 606 (1993) (stating that by taking reservation land for a dam and reservoir project, "and broadly opening up those lands for public use, Congress, through the Flood Control and Cheyenne River Acts eliminated the Tribe's power to exclude non-Indians from these lands, and with that the incidental regulatory jurisdiction formerly enjoyed by the Tribe"). This legal nature of a federally granted and unrestricted right-of-way to construct and maintain a public highway as a part of the state highway system on a reservation cannot be altered for purposes of nonmember governance by State practices that are merely deferential to, and respectful of, tribal authority. Cf. McDonald v. Means, 309 F.3d 530, 539 (9th Cir.2002) (holding that a BIA road was a tribal road by considering the nature of the right-of-way at issue and finding that, although the tribe had relinquished certain gatekeeping rights by allowing public use of the road and collaborating with the BIA in maintaining it, the tribe had maintained other significant gatekeeping rights because the right-of-way was not granted to the state and the road did not form any part of the state's highway system). We do not understand the Band to be asserting that the parties' conduct will show that this stretch of Highways 1 and 89 is no longer a state highway. Absent some specific language reserving regulatory or adjudicatory powers to the Red Lake Band in the right-of-way documents or an assertion that the highway is no longer maintained as part of the State's highway system, no further evidence is needed.

Alternatively, the Tribal Court argues that the State's stipulation accompanying its application for a right-of-way did not comply with the federal regulations, and as a result, the right-of-way is void ab initio. We respectfully disagree. The regulations in effect at the time of the agreement required the State's right-of-way application to include a stipulation "expressly agreeing" to the terms of 25 C.F.R. § 256.7 (1951), which placed certain obligations on the party applying for a right-of-way. (J.A. at 69.) The State's 1955 application included the required stipulation, stating explicitly that the. State agreed to "abide by all pertinent rules and regulations of the Department of the Interior." (Id. at 62.) The stipulation then made "special reference" to three of the five subsections listed in 25 C.F.R. § 256.7. Because the State expressly agreed to abide by "all pertinent regulations," we agree with the district court's conclusion [856] that the failure to individually reference each subsection of § 256.7 does not render the right-of-way void.^[5] Additionally, the Red Lake Band's 1955 tribal resolution evidences consent to the right-of-way as requested in the application and stipulation, and the Band has never administratively challenged the validity or scope of this right-of-way.

Finally, the Tribal Court asserts that additional discovery is necessary to determine the applicability of the Montana exceptions, but we conclude that the record is adequate for this analysis as well. The first exception "covers activities of nonmembers who enter consensual [commercial] relationships with the tribe or its members." See Strate, 520 U.S. at 456-57, 117 S.Ct. 1404 (internal marks omitted). The record indicates that Nord was driving a semi-truck owned by Nord Trucking, a company that had a consensual commercial relationship with the Red Lake Band to haul and remove timber from the reservation, but the accident gave rise to a simple tort claim between strangers, not a dispute arising out of the commercial relationship. The accident did not involve the Red Lake Band itself, and although the individual injured was a member of the Red Lake Band, he was not a party to the commercial relationship. The Tribal Court asserts that additional discovery is necessary to determine the facts regarding whether Nord was driving in connection with a contract with the Red Lake Band or on a personal errand. We conclude that such facts would not be material in this situation because the dispute merely involves the tortious conduct of "a run-of-the-mill highway accident" between strangers, and no amount of discovery can alter the nature of that claim. See id. at 457, 117 S.Ct. 1404 (internal marks omitted) (holding that the first exception did not apply to a highway traffic accident dispute that was "distinctly non-tribal in nature" (internal marks omitted)); see also Plains Commerce Bank, 491 F.3d at 886-87 (explaining that under Strate, the consensual relationship exception of Montana does not apply to a purely accidental encounter between two strangers but requires a nexus between a preexisting consensual commercial relationship between the parties and the personal injury claim).

The second Montana exception does not apply because Strate determined as a matter of law that the lack of tribal jurisdiction over a tort claim arising from an ordinary automobile accident on a state highway running through Indian land does not threaten or have any direct effect on "the political integrity, economic security, or the health or welfare of the tribe." See Strate, 520 U.S. at 457-59, 117 S.Ct. 1404 (internal marks omitted). The only distinguishing fact is that Strate involved a non-Indian plaintiff whereas the injured plaintiff in this case is a member of the Red Lake Band, but this distinction is insignificant. The Court in Strate expressly cautioned against reading the second Montana exception in isolation to apply to the personal health and welfare of a few individual members. See id. at 457-58, [857] 117 S.Ct. 1404 ("Undoubtedly, those who drive carelessly on a public highway running through a reservation endanger all in the vicinity, and surely jeopardize the safety of tribal members. But if Montana's second exception requires no more, the exception would severely shrink the rule."). "[A] tribe's inherent power does not reach beyond what is necessary to protect tribal self-government or to control internal relations." Id. at 459, 117 S.Ct. 1404 (internal marks omitted).

We do not disagree with the Tribal Court's assertion that the Red Lake Band is unique in many respects and has long opposed intrusions on its land. See, e.g., 28 U.S.C. § 1360 (specifically exempting the Red Lake Band from legislation extending the state's civil jurisdiction over claims involving Indians); County of Beltrami v. County of Hennepin, 264 Minn. 406, 119 N.W.2d 25, 30 (1963) (noting that the Red Lake Band was excluded from the legislation at its own insistence). However, we cannot agree with the assertion that, contrary to the language of Strate, the Band's ability to regulate and to exercise adjudicatory authority over nonmembers on the highway is important to its tribal sovereignty. The Band exercised its sovereignty by consenting to a right-of-way that permitted the State to construct and maintain a public highway on its reservation, without specifically reserving any regulatory or adjudicatory authority over nonmembers using the highway. Again, as long as the highway remains part of the State's highway system, the Red Lake Band has lost its "right of absolute and exclusive use and occupation, [which] implies the loss of regulatory jurisdiction over the use of the land by others." Strate, 520 U.S. at 456, 117 S.Ct. 1404 (internal marks omitted).

III.

The district court did not abuse its discretion in refusing to permit further discovery, and summary judgment, declaring that the Tribal Court lacked jurisdiction over this dispute, was proper as a matter of law. Accordingly, we affirm the judgment of the district court.

MURPHY, Circuit Judge, concurring.

Although I concur in the result and in most of the court's analysis, I write separately to highlight more fully the unique legal status of the Red Lake Band of Chippewa Indians and the Red Lake Reservation. In respect of the band's sovereignty and special history, it is proper to examine all the circumstances thoroughly before its courts are divested of jurisdiction.

It is difficult to overstate the differences between the Red Lake Reservation and nearly all other Indian reservations. The Red Lake Band has retained extensive sovereignty over its reservation, subject only to federal law which specifically addresses Red Lake and to preemptive federal criminal law. It has retained much of the autonomy and sovereignty that existed on all reservations at the time the Supreme Court decided Worcester v. Georgia, 31 U.S. 515, 561, 6 Pet. 515, 8 L.Ed. 483 (1832), which recognized that Indian tribes maintained a government to government relationship with the United States to which the states were not parties. See Comm'r of Taxation v. Brun, 286 Minn. 43, 174 N.W.2d 120, 122 (1970). Although the Court has long since abandoned the Worcester rule that "`the laws of [a State] can have no force'" within reservation boundaries, Nevada v. Hicks, 533 U.S. 353, 361-62, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001), quoting Worcester, 31 U.S. at 561, that rule largely holds true as to the Red Lake Reservation.

Unlike other tribes and reservations, including the Three Affiliated Tribes of the [858] Fort Berthold Indian Reservation where the accident in Strate occurred, the Red Lake Band has retained its government to government relationship with the United States. As part of its retention of significant sovereignty, the tribe was only one of three to resist the extension of state criminal and civil jurisdiction to cover claims involving Indians. See 18 U.S.C. § 1162; 25 U.S.C. §§ 1321-26; 28 U.S.C. § 1360; but see State v. Holthusen, 261 Minn. 536, 113 N.W.2d 180, 187-88 (1962) (state has jurisdiction over crimes committed on the Red Lake Reservation by non Indians against non Indians).

Also unlike nearly all other reservations, the land of the Red Lake Reservation "has never been formally ceded to the United States."^[6] Brun, 174 N.W.2d at 122; see Minnesota v. Hitchcock, 185 U.S. 373, 22 S.Ct. 650, 46 L.Ed. 954 (1902) (detailed history of the formation of the Red Lake Reservation). The Red Lake Band successfully resisted allotment, making the reservation a "closed" reservation in which all lands are held communally by the tribe.^[7] This status has made Red Lake perhaps the most insular and nonintegrated reservation in the United States; it has also preserved for the band an independence not experienced on other reservations. The tribe has the right to control who is allowed to enter and to live on the reservation. At one time the tribe required nonmembers working or engaging in business on the reservation to apply for passports. In the past the tribal council has barred journalists from the reservation. After the tragic shootings at Red Lake High School in March 2005, as one example, journalists who ventured onto the reservation past a designated parking lot faced arrest for trespass.

The state's approach to the Red Lake Reservation is reflected in the Minnesota Department of Transportation's manner of dealing with the tribe. Employee Joseph McKinnon's affidavit indicates that the Department treats the Red Lake Reservation as a foreign jurisdiction and requests permission from the tribe before entering the reservation to perform maintenance work on the state highway, unlike the manner in which the state treats all other Minnesota reservations. Moreover, state law enforcement agencies, including the state patrol, do not have authority over members on the reservation, even on the state highway. See Red Lake Band of Chippewa Indians v. State, 311 Minn. 241, 248 N.W.2d 722, 728 (1976); see also State v. Stone, 572 N.W.2d 725 (Minn.1997) (state may not enforce driving laws against members of an Indian tribe within the tribe's reservation).

Despite the fact that the accident in this case involved a member of the band^[8] and [859] despite the significant difference between Red Lake and the Fort Berthold Indian Reservation, I agree that the record shows that this accident occurred on a state highway for which Minnesota had obtained a valid right of way that is open to the public and that is maintained as part of the state trunk highway system. I therefore agree that the district court did not err by granting summary judgment to the Nords.

While I cannot agree with the court's conclusion that "the facts of the present case are on all fours with Strate," I do agree that the district court did not abuse its discretion by denying the Rule 56(f) tribal court request for additional time to conduct discovery. The tribal court did not make its discovery needs known to the district court in a timely fashion. This federal action was filed on June 10, 2005, and it was only on May 1, 2006, after the Nords had filed for summary judgment and after the tribal court itself had moved for a stay of discovery, that it requested additional discovery. While the tribal court's choice to concentrate on legal theories for dismissal rather than to engage in expensive discovery is understandable, there was considerable opportunity exclusive of stayed time during which it could have pursued its discovery needs.

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[1] The Honorable Patrick J. Schiltz, United States District Judge for the District of Minnesota.

[2] Kelly and the Tribal Court are both appellants and filed a joint appeal brief, but for the sake of simplicity and because tribal court jurisdiction is the only issue on appeal, we will refer only to the Tribal Court in our discussion.

[3] The dispute in Strate arose out of an accident between two non-Indians, whereas here, one party was a member. We find this to be a distinction without a difference, however, because in either case, the question is whether the tribe has jurisdiction over the nonmember.

[4] The state constitution creates a trunk highway system "which shall be constructed, improved and maintained as public highways by the state." Minn. Const, art. 14, § 2.

[5] The Tribal Court's assertion that the State limited the scope of the right-of-way by specifically enumerating only three subsections of the regulation is without merit. The terms of § 256.7, as it existed in 1955, prescribed five responsibilities of the State regarding the right-of-way, i.e., to construct and maintain the right-of-way in a workmanlike manner, to pay promptly all damages due to landowners, to indemnify the landowners against liability for damages arising from the applicant's use of the lands, to restore the lands, and not to interfere with the landowner's use of the right-of-way. (J.A. at 69.) The State's omission of "special reference" to two of its obligations to the Band, when it explicitly agreed to abide by all of them, does not reserve to the Band any adjudicative authority over nonmembers on the public highway.

[6] The tribe ceded large portions of the original reservation to the United States but has never ceded the largest part of the current reservation centered around Lower Red Lake where the accident at issue occurred. See United States v. Minnesota, 466 F.Supp. 1382, 1386-87 (D.Minn. 1979) (describing three treaties by which the Red Lake Band ceded land to the federal government). The Red Lake Band refers to this land as the "diminished" reservation.

[7] The Red Lake Reservation is apparently one of only two reservations in the nation to enjoy this status.

[8] Unlike Strate the injured here, Donald Kelly, is a member of the Red Lake Band and therefore the band was not necessarily a "`stranger [] to the accident.'" Strate v. A-1 Contractors, 520 U.S. 438, 457, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997), quoting A-1 Contractors v. Strate, 76 F.3d 930, 940 (8th Cir.1996). Although the other driver, Chad Nord, is a nonmember, he was' driving a vehicle owned by Nord Trucking which had a contract with the band to haul timber from the reservation. See Montana v. United States, 450 U.S. at 565-66, 101 S.Ct. 1245 (1981) ("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."). There is, however, no evidence suggesting that that relationship had any causal effect on the accident.

[1062] Lon T. Holden, Jardine, Stephenson, Blewett & Weaver, PC, Great Falls, MT, for plaintiffs.

Channing Hartelius, Hartelius, Ferguson, Baker & Kazda, PC, Great Falls, MT, for defendant.

MEMORANDUM AND ORDER

HATFIELD, Senior District Judge.

Plaintiffs, Glendale Colony and Michael Hofer, instituted the above-entitled action for declaratory and injunctive relief, challenging the jurisdiction of the Blackfeet Tribal Court with respect to an underlying tort action prosecuted by the defendant, Dawn Connell. Presently before the court is plaintiffs' request for a preliminary injunction, pursuant to Fed.R.Civ.P. 65, seeking to enjoin Dawn Connell from prosecuting a civil action, i.e., Dawn Connell v. Glendale Colony and Michael Hofer, Blackfeet Tribal Court Cause No. 96-CA-53, in Blackfeet Tribal Court. Having reviewed the record herein, together with the parties' briefs in support of their respective positions, the court is compelled to DENY plaintiffs' request for injunctive relief.

BACKGROUND

The above-entitled matter has its genesis in an automobile accident which occurred on February 11, 1994, on a portion of U.S. Highway No. 2 in Browning, Montana, within the exterior boundaries of the Blackfeet Indian Reservation. At the time of the accident, Michael Hofer, an employee of the Glendale Colony,^[1] was returning to the Glendale Colony after delivering eggs to the IGA store in Bowning, Montana. Hofer's vehicle collided with a vehicle driven by Dawn Connell, a resident of the Blackfeet Indian Reservation, and an enrolled member of the Blackfeet Indian Tribe. On February 5, 1996, Dawn Connell filed suit against Michael Hofer and Glendale Colony in the Blackfeet Tribal Court, seeking compensatory damages based upon the purported negligence of Michael Hofer. The defendants entered an appearance in Tribal Court, and subsequently [1063] moved the court to dismiss the action for lack of subject matter jurisdiction. On October 22, 1997, the Tribal Court denied the motion to dismiss, and ordered the matter proceed to trial on November 4, 1997.

On October 28, 1997, Glendale Colony and Michael Hofer instituted the above-entitled action for declaratory relief, challenging the jurisdiction of the Blackfeet Tribal Court in the underlying tort action. In addition, Glendale Colony and Michael Hofer request the court issue a preliminary injunction, pursuant to Fed.R.Civ.P. 65, enjoining Dawn Connell from proceeding to trial as scheduled on November 4, 1997. Plaintiffs invoke the federal question jurisdiction of this court, pursuant to 28 U.S.C. § 1331.

DISCUSSION

The traditional equitable criteria for obtaining preliminary injunctive relief include: (1) a strong likelihood of success on the merits; (2) the possibility of irreparable injury to the plaintiff if the preliminary relief is not granted; (3) a balance of hardships favoring the plaintiff; and (4) advancement of the public interest. See, Los Angeles Memorial Coliseum Com'n v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980) (citations omitted). Accordingly, a party is entitled to preliminary injunctive relief provided it demonstrates "probable success on the merits" and a "possibility of irreparable injury," or if it demonstrates "a fair chance of success on the merits (i.e., serious questions are raised)" and the "balance of hardships tips sharply in their favor." Confederated Tribes & Bands of Yakama v. Baldrige, 898 F.Supp. 1477, 1483 (W.D.Wash.1995), quoting, State of Alaska v. Native Village of Venetie, 856 F.2d 1384, 1389 (9th Cir. 1988).

In the case sub judice, Glendale Colony and Michael Hofer assert injunctive relief is warranted because they have demonstrated "probable success on the merits" with respect to their challenge to the jurisdiction of the Blackfeet Tribal Court. In response, Dawn Connell asserts plaintiffs' request for injunctive relief is appropriately denied, given plaintiffs' failure to exhaust their remedies in the Blackfeet Tribal Court.

The question of whether an Indian Tribe retains the authority to compel a non-Indian to submit to the jurisdiction of a tribal court presents a question of federal law, properly determined by the federal courts; the final arbiters of federal law. National Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845, 852, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985).^[2] Nonetheless, principles of comity, predicated upon the well-recognized Congressional policy of promoting tribal self-government and self-determination, compelled the Court in National Farmers Union to announce [1064] a rule of exhaustion, which requires tribal court remedies be exhausted before the question of tribal court jurisdiction is addressed by the federal courts. 471 U.S. at 856-57, 105 S.Ct. 2447. The Court concluded proper respect for tribal legal institutions required the federal courts to afford these tribunals a full opportunity to consider the issues before them and to rectify any errors. 471 U.S. at 857, 105 S.Ct. 2447. Unconditional access to the federal forum, the Court reasoned, would contravene the federal policy supporting tribal self-government by placing the federal courts "in direct competition with the tribal courts, thereby impairing the latter's authority over reservation affairs." Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 16, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987).

Accordingly, the Supreme Court and the Ninth Circuit Court of Appeals have held non-Indian defendants must exhaust tribal court remedies before seeking relief in federal court, even where defendants allege that proceedings in tribal court exceed tribal sovereign jurisdiction. Burlington Northern R.R. Co. v. Crow Tribal Council, 940 F.2d 1239, 1244 (9th Cir.1991), citing, National Farmers Union, supra, 471 U.S. at 856-57, 105 S.Ct. 2447; Iowa Mutual Ins. Co., supra, 480 U.S. at 16, 107 S.Ct. 971; and Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221 (9th Cir.1989). Nevertheless, mandatory deference does not follow automatically from an assertion of tribal court jurisdiction.^[3] The Supreme Court, in Strate v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997), stated:

When, as in this case, it is plain that no federal grant provides for tribal governance of nonmembers' conduct on land covered by Montana's main rule, it will be equally evident that tribal courts lack adjudicatory authority over disputes arising from such conduct. As in criminal proceedings, state or federal courts will be the only forums competent to adjudicate those disputes. (citation omitted). Therefore, when tribal-court jurisdiction over an action such as this one is challenged in federal court, the otherwise applicable exhaustion requirement, ... must give way, for it would serve no purpose other than delay.

Strate, supra, 117 S.Ct. at 1416, n. 14.

The controversy in Strate arose from a motor vehicle accident involving two non-tribal members on a North Dakota state highway within the Fort Berthold Indian Reservation. The Supreme Court ultimately held that, absent a treaty or statute, the tribal court lacked jurisdiction to adjudicate a dispute between non-members of the tribe arising out of an automobile accident on a state highway. Strate, 117 S.Ct. at 1407-08. Relying principally upon Montana v. U.S., 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), the Court expressly noted that with respect to lands over which the tribe had ceded sovereign authority, tribal jurisdiction is substantially limited. Id. at 1413.

Montana thus described a general rule that, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation, subject to two exceptions: The first exception relates to nonmembers who enter consensual relationships with the tribe or its members; the second concerns activity that directly affects the tribe's political [1065] integrity, economic security, health, or welfare.

Strate, supra, 117 S.Ct. at 1409-10.

In a subsequent decision, the Ninth Circuit Court of Appeals, in Wilson v. Marchington, 127 F.3d 805 (9th Cir.1997), held the Blackfeet Tribal Court did not have subject matter jurisdiction over an action involving two non-member defendants, which arose from a motor vehicle accident which occurred within the exterior boundaries of the Blackfeet Indian Reservation.^[4] In so holding, the court rejected the argument that a traffic accident injuring a tribal member sufficiently affects the economic security, political integrity, or the health and welfare of the tribe, thereby satisfying the second Montana exception.

Undoubtedly, those who drive carelessly on a public highway running through a reservation endanger all in the vicinity, and surely jeopardize the safety of tribal members. But if Montana's second exception requires no more, the exception would severely shrink the rule.

Wilson, supra, at 814, quoting, Strate, supra, 117 S.Ct. at 1415.

In the case sub judice, the plaintiffs, relying upon Strate and Wilson, assert they should not be forced to exhaust tribal court remedies because the Blackfeet Tribal Court clearly lacks jurisdiction over the underlying tort action. Plaintiffs' argument, however, ignores the fact that the present action is factually distinguishable from Strate and Wilson.

Michael Hofer, unlike the defendants in either Wilson or Strate, was not simply traveling through a reservation on a public highway en route to a destination off the reservation. Rather, Michael Hofer is a resident of the Glendale Colony, which is located within the exterior boundaries of the Blackfeet Indian Reservation. Consequently, Michael Hofer and the Glendale Colony have a continuous and ongoing presence on the Blackfeet Indian Reservation. In addition, the record reflects the Glendale Colony holds a permit to conduct business on the Blackfeet Indian Reservation and, in fact, Michael Hofer was arguably in the course and scope of that business at the time of the underlying accident.

Under the facts presented, the court is unable to conclude the second Montana exception would not apply to the underlying tort action. Specifically, the court concludes a question exists as to whether the conduct at issue threatens or has some direct effect on the political integrity, economic security, health, or welfare of the Blackfeet Tribe. See, Montana v. United States, supra, 450 U.S. at 565-566, 101 S.Ct. 1245 ("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."). Given that uncertainty, the court concludes it would be illogical not to apply the exhaustion requirement, which is designed to allow tribal courts to address, in the first instance, the extent of their jurisdiction.

National Farmers Union/Iowa Mutual mandate that the Blackfeet Tribal Court, the forum whose jurisdiction is being challenged, must be afforded the first opportunity to evaluate the factual and legal bases for the challenge. National Farmers Union Ins. Cos. v. Crow Tribe of Indians, supra, 471 U.S. at 856, 105 S.Ct. 2557. Consequently, the court, cognizant of the pendency of proceedings before the Blackfeet Tribal Court, deems it appropriate to [1066] abstain from proceeding in the present action until that point in time when the parties have exhausted all remedies available to them under the laws of the Blackfeet Tribe of Indians.

Therefore, from the record before it and for the reasons set forth herein, the court concludes the application for preliminary injunction presented by the plaintiffs, Michael Hofer and Glendale Colony, be, and the same hereby is, DENIED.

---------

[1] The plaintiffs' pleadings and exhibits refer to the Glendale Colony as a non-Indian organization, located in Cut Bank, Montana. Nevertheless, the plaintiffs have not disputed Connell's contention that the Glendale Colony is located within the exterior boundaries of the Blackfeet Indian Reservation. In addition, there appears to be no dispute that the Glendale Colony possesses a permit to conduct business on the Blackfeet Indian Reservation.

[2] National Farmers Union involved a suit brought in Crow Tribal Court by Leroy Sage, a Crow Indian minor, against a Montana school district for injuries suffered when he was struck by a motorcycle on school grounds owned by the State of Montana within the boundaries of the Crow Indian Reservation. The Supreme Court expressly declined the opportunity to address tribal courts' civil jurisdiction over reservation-based causes of action involving Indian plaintiffs and non-Indian defendants. National Farmers Union, 471 U.S. at 854, 105 S.Ct. 2447. Rather, the Court held the question of whether the tribe's retained sovereignty included the power to compel a non-Indian to submit to the jurisdiction of its courts must be answered by federal law, which may have divested the tribe of such power, and therefore was a federal question included within the jurisdiction of the federal district courts. Id.at 852-53, 105 S.Ct. 2447. The Court did not, however, address the issue of whether the Crow Tribe had jurisdiction over the underlying tort claim. Rather, the Court left the issue for a separate inquiry, stating:

[T]he existence and extent of a tribal court's jurisdiction will require a careful examination of tribal sovereignty, the extent to which that sovereignty has been altered, divested, or diminished, as well as a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and administrative or judicial decisions.

Id. at 855-56, 105 S.Ct. 2447.

[3] For example, the Supreme Court, in National Farmers Union,articulated three exceptions to the exhaustion requirement:

We do not suggest that exhaustion would be required where an assertion of tribal jurisdiction `is motivated by a desire to harass or is conducted in bad faith,' ... or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court's jurisdiction.

National Farmers Union, supra, 471 U.S. at 856 n. 21, 105 S.Ct. 2447.

[4] In Wilson, the plaintiff, Mary Jane Wilson, an enrolled member of the Blackfeet Indian Tribe, filed suit in the Blackfeet Tribal Court, seeking compensatory and punitive damages based upon the purported negligence of defendants Thomas David Marchington and Inland Empire Shows, Inc. The action had its genesis in an automobile accident which occurred east of Browning, Montana, when a semi-tractor trailer driven by Marchington, who was traveling through the Blackfeet Indian Reservation on U.S. Highway 2, collided with Wilson's vehicle.

[643] George A. Flournoy, Flournoy & Doggett, Alexandria, LA, for Plaintiff/Appellant, Stephanie Webb.

Joseph B. Guilbeau, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, for Defendant/Appellee, The Tunica-Biloxi Indian Tribe of Louisiana d/b/a Paragon Casino Resort.

Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.

DECUIR, Judge.

Stephanie Webb filed this workers' compensation claim against her employer, the Tunica-Biloxi Indian Tribe of Louisiana, d/b/a Paragon Casino Resort, after allegedly sustaining a work-related accident on February 28, 2002. The Tribe objected to the jurisdiction of the Office of Workers' Compensation. The parties submitted the matter on briefs, and the workers' compensation judge ruled in favor of the Tribe, finding no subject matter jurisdiction. Webb's claim was dismissed, and she appeals. For the following reasons, we affirm.

The Tribe's authority to conduct gaming activities on tribal lands located within the State of Louisiana stems from the Federal Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2701, et seq. Pursuant to the Act, the Tribe then entered into a compact or contract with the State of Louisiana whereby the regulations governing the gaming and other activities at the Paragon Casino Resort were set forth. The contract was approved by the Secretary for the United States Department of the Interior. In keeping with longstanding federal jurisprudence and statutory law, the contract specifically recognized the territorial rights and independent sovereignty of both the Tribe and the State. The contract did not address the limited issue of jurisdiction in workers' compensation matters which may arise as a result of the operation of the casino and resort.

On the narrow question of whether the Office of Workers' Compensation has jurisdiction over the Tribe in a case involving employment activities on tribal lands, the workers' compensation judge explained that such an assertion of jurisdiction "would constitute an unlawful encroachment on tribal sovereignty and self-government." The court reasoned that subject matter jurisdiction would be present only via federal law or an explicit waiver of sovereign immunity by the Tribe, citing recent third circuit jurisprudence:

In Bonnette, et al. v. Tunica-Biloxi Indians of Louisiana d/b/a Paragon Casino Resort, et al., Nos. 0[2]-919, 02-920, 02-921, 2003 WL 21229282 (La.App. 3 Cir. 5/[2]8/03)[, 873 So.2d 1] the court reaffirmed the position of the United States Supreme Court in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 1702, 140 L.Ed. 981 (1988) that "[a]s a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity."

The court then specifically found that Congress had not "authorized a suit against The Tribe in the workers' compensation courts of this state nor ha[d] the tribe consented to be sued in such courts." The court also discussed a recently enacted Tunica-Biloxi constitutional ordinance which provides that Louisiana workers' compensation law will apply to claims arising within the jurisdiction of the Tunica-Biloxi [644] Tribal Court and that the administration of the Louisiana Workers' Compensation Act for such claims shall be by the tribal courts. See Constitutional Ordinance 10-2002 (adopted 11/5/02).

During the pendency of this appeal, a panel of this court handed down a decision involving the same issue as that raised herein. In Ortego v. Tunica Biloxi Indians of LA d/b/a Paragon Casino, 03-1001 (La.App. 3 Cir. 2/4/04), 865 So.2d 985, this court affirmed a workers' compensation judgment maintaining an exception of lack of subject matter jurisdiction. The court, per Judge Amy, reviewed the federal jurisprudential history of sovereign immunity and recent Louisiana cases involving the Tunica-Biloxi Tribe. The plaintiff's arguments were then specifically addressed. We agree with the decision rendered in Ortego, finding it to be a well reasoned discourse on jurisdictional issues involving a sovereign, self-governing and wholly independent nation.

Because the arguments raised in this appeal are identical to those raised in Ortego, (as the plaintiffs' counsel, the defendant and its counsel, and the workers' compensation judge are all the same in the two cases), we quote from that portion of the Ortego opinion which disposes of the plaintiff's arguments:

In the present appeal, Ms. Ortego has cited several provisions of the compact between the State of Louisiana and the Tunica-Biloxi Tribe in support of her contention that the workers' compensation judge erred as a matter of law in granting the Tribe's exception of lack of subject matter jurisdiction because the State of Louisiana retained jurisdiction over workers' compensation proceedings involving tribal employees.

Our examination of the compact reveals that the Tribe did not waive its sovereign immunity with respect to its employees' workers' compensation claims. Contrary to Ms. Ortego's first argument on appeal, the compact's silence on this issue does not mean that Louisiana law applies. As the Supreme Court noted in Santa Clara Pueblo, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 [1978], tribal sovereign immunity cannot be inferred—instead, it must be expressly waived. The compact's silence with respect to tribal employees' workers' compensation claims does not constitute an express waiver. The Tribe retains jurisdiction in this area through operation of the doctrine of tribal sovereign immunity.

Ms. Ortego's second argument is that §§ 3(B) and (C) of the compact evince the intent that the State retain jurisdiction over workers' compensation claims. Our reading of these sections is at odds with Ms. Ortego's proposal. Section 3(C) merely indicates that the State retains jurisdiction in those matters in which it previously exercised jurisdiction. Section 3(C) also states that the Tribe retains its jurisdiction, which, applying the principles outlined in Montana [v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981)] and Strate [v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997)], above, includes jurisdiction over workers' compensation claims.

In her third argument, Ms. Ortego points to those sections of the compact requiring the Tribe to carry workers' compensation insurance that, by its terms, precludes the Tribe from asserting the defense of sovereign immunity in defense of liability. Ms. Ortego argues in an extrapolation of these sections, that the Tribe does not have sovereign immunity over workers' compensation claims. Based upon our reading of the compact, these provisions do not imply [645] that the defense of sovereign immunity is not available to the Tribe in case of litigation; instead, it indicates that the Tribe may not assert sovereign [immunity] in an attempt to avoid paying on the policy. Moreover, the newly approved tribal ordinance at issue herein mandates that tribal courts apply Louisiana workers' compensation law in deciding workers' compensation disputes; as such, the Tribe, just as any other employer, would rely upon its workers' compensation insurance in payment of claims in appropriate cases.

Ms. Ortego further contends that § 2(H) of the compact, reproduced [below^[1]], clearly indicates that the State did not transfer its workers' compensation jurisdiction to the Tribe. We note that this section pertains to enforcement of the provisions of the compact itself— i.e., in the event that the State sued the Tribe to enforce the compact, the Tribe could not assert the defense of sovereign immunity, and vice versa. Nothing in § 2(H) indicates that the State or the Tribe waived their respective immunity as to matters other than enforcement of the compact terms.

In her fifth argument on appeal, Ms. Ortego contends that the Tribe was given jurisdiction over tort claims in § 10(A)(6) of the compact and that a similar grant of workers' compensation jurisdiction to the Tribe would have been express, as well. Jurisdiction over workers' compensation was not the State's to give away. According to the above-cited Supreme Court decisions, the Tribe, not the State, has civil jurisdiction over disputes arising from its consensual relationships with others, even non-members, by virtue of its sovereign status. The Court has also stated that the Tribe would be subject to suit in federal and state courts via an express waiver of the immunity that stems from its sovereign status. No such waiver was given in the instant matter on appeal; as such, the Tribe retained its workers' compensation jurisdiction.

Finally, Ms. Ortego contends that the ordinance declaring the Tribe's intention to exercise sole jurisdiction over workers' compensation claims could not have amended the compact between the Tribe and the State because it was neither signed by the proper dignitaries nor approved by the Secretary of the Interior.[^[2]] We agree with Ms. Ortego's assertion that the ordinance at issue did not change the terms of the compact. However, in this situation, it was not necessary for the ordinance to do so. The Tribe already has jurisdiction over workers' compensation claims owing to its status as a sovereign recognized by the United States, not as a result of this [646] compact. The ordinance merely reaffirms the Tribe's jurisdiction over such matters and mandates that the tribal courts will apply Louisiana workers' compensation law in deciding disputes in this area. Ms. Ortego will therefore receive the benefit of Louisiana workers' compensation law whether her case proceeds in Louisiana courts or in the tribal courts of the Tunica-Biloxi Nation.

Based upon the above considerations, we do not find that the workers' compensation judge erred as a matter of law in granting the Tribe's exception of lack of subject matter jurisdiction. However, because the Tribe did not assert only one principle in support of its claim that the workers' compensation court lacked subject matter jurisdiction over Ms. Ortego's claim, it is necessary to emphasize the precise reasoning employed in reaching this conclusion, for the sake of clarity.

The Tribe asserted in its exception of lack of subject matter jurisdiction, and it now asserts on appeal, that Louisiana does not have jurisdiction over Ms. Ortego's workers' compensation claim for two reasons: first, due to the doctrine of exhaustion of tribal remedies, and second, due to tribal sovereign immunity.

We note that Ms. Ortego's claim is grounded in Louisiana workers' compensation law and not in tribal law. We further note that Ms. Ortego initially filed suit with the Louisiana Office of Workers' Compensation, not in a Tunica-Biloxi tribal court. As such, we find that the circumstances of Ms. Ortego's case do not lend themselves to an unbending application of the doctrine of exhaustion of tribal remedies as propounded by the Supreme Court in National Farmers Union [Insurance Cos. v. Crow Tribe of Indians, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985)]and Iowa Mutual [Insurance Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987)], where claims were pending in tribal court before suit was filed in federal court. Instead, the reasoning of the Second Circuit in Garcia [v. Akwesasne Housing Authority, 268 F.3d 76 (2d Cir.2001)], reproduced above, is appropriate in the matter before us on appeal. We determine that this case should not have been dismissed as a matter of comity, but rather due to the asserted defense of tribal sovereign immunity.

In Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 145, 102 S.Ct. 894, 905, 71 L.Ed.2d 21 (1982), Justice Marshall, writing for the Court, observed that "[a] nonmember who enters the jurisdiction of the tribe remains subject to the risk that the tribe will later exercise its sovereign power." In the instant matter on appeal, Ms. Ortego entered the jurisdiction of the Tribe, and the Tribe was free to exert its sovereign immunity with respect to claims sustained by Ms. Ortego, a non-member, while on tribal land.

865 So.2d at 996-98.

We agree with the reasoning of Ortego and find no legal error in the judgment dismissing Webb's workers' compensation claim against the Tribe. Following Ortego, this court has reached the same result in Bordelon v. Tunica Biloxi Indian Tribe of LA, 03-1223 (La.App. 3 Cir. 3/3/04), 867 So.2d 172; Stelly v. Paragon Casino & Resort, 03-1222 (La.App. 3 Cir. 3/3/04), 867 So.2d 173; and Whittington v. Paragon Casino Resort, 03-1286 (La.App. 3 Cir. 3/3/04), 867 So.2d 174.

The exception of lack of subject matter jurisdiction was properly maintained, and we therefore affirm. Costs of this appeal are assessed to Stephanie Webb.

AFFIRMED.

[1]Section 2(H) of the compact states as follows:

The jurisdiction and waiver of sovereign immunity provided by this Tribal-State Compact shall be strictly limited to matters and issues arising directly from this Tribal-State Compact.

[2]The text of the Tribal Ordinance, entitled "An Ordinance to Adopt Title 23, Chapter 10 of the Louisiana Revised Statutes Concerning Workers' Compensation," is as follows:

All of Title 23, Chapter 10 of the Louisiana Revised Statutes, shall be adopted as the law applicable to any workers' compensation claims that arise in the jurisdiction of the Tunica-Biloxi Tribal Court. All of Part IV, "Administration of Claims", including, but not limited to Subpart A, "Office of Workers' Compensation Administration" and Subpart B, "Claim Resolution" and all of their subsections, shall be amended so that any reference to administration by a Hearing Officer and/or the Workers' Compensation Administration, shall be deleted. The Administration of Workers' Compensation Act shall be by the Tunica-Biloxi Tribal Court.

[531] [532] Steven A. Kelly, Lame Deer, MT, for the intervenor-appellant.

Clarence Belue, Billings, MT, for the defendants-appellants.

Gregory G. Murphy, Moulton, Bellingham, Longo & Mather, P.C., Billings, MT, for the plaintiffs-appellees.

Before: BROWNING, WALLACE and T.G. NELSON, Circuit Judges.

ORDER

The Petition for Rehearing in No. 00-35002 is denied and the Suggestion for Rehearing En Banc in No. 00-35002 is denied. The opinion issued August 14, 2002 is amended, and Judge Wallace amends his dissent. The amendments to the opinion are as follows:

1. In the first sentence of the first paragraph on page 11924 [300 F.3d 1037, 1040], replace the word "broad" with the word "considerable."

2. Delete the second sentence in the first paragraph on page 11924 [300 F.3d at 1040] and its accompanying citation to Iowa Mutual [Ins. Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987)] and delete the second and third paragraphs in footnote 2.

3. In the third sentence of the second paragraph on page 11926 [300 F.3d at 1041], replace the words "Route 5 is a tribal road" with "BIA roads like Route 5 are tribal roads".

4. Add the following text and footnote to the end of the first sentence of the first full paragraph on page 11927 [300 F.3d at 1042]:, "for the direct benefit of the tribe.4"

4. Strate rejected the argument that Montana did not govern because the land underlying the conveyed right-of-way was held in trust for the tribe. 520 U.S. at 454, 117 S.Ct. 1404. In Strate, the right-of-way itself was conveyed wholly to the state. Here, however, both the underlying land and the right-of-way itself were conveyed in trust for the tribe.

5. Following the first full paragraph on page 11930 [300 F.3d at 1043], add the following paragraph and footnote:

McDonald argues that the majority's analysis "is not consistent with" the Supreme Court's decision in Nevada v. Hicks, 533 U.S. 353, 121 S.Ct. 2304, 150 [533] L.Ed.2d 398 (2001), that the ownership status of land is not dispositive in determining that a tribal court lacks jurisdiction over a civil claim against state officers who enter tribal land to execute a search warrant against a tribe member suspected of having violated state law outside the reservation. 533 U.S. at 360, 121 S.Ct. 2304. However, the Court noted that "[o]ur holding in this case is limited to the question of tribal-court jurisdiction over state officers enforcing state law. We leave open the question of tribal-court jurisdiction over nonmember defendants in general." Id. at 358, n. 2, 121 S.Ct. 2304; see also id. at 386, 121 S.Ct. 2304 (Ginsburg, J., concurring) (writing separately to emphasize that the question of tribal jurisdiction over other nonmember defendants remains open). The limited nature of Hicks's holding renders it inapplicable to the present case.9

9. McDonald argues that Hicks suggests the rule in Montana should be extended to bar tribal jurisdiction not only over the conduct of nonmembers on non-Indian fee land but on tribal land as well. See 533 U.S. at 359, 121 S.Ct. 2304 (interpreting Montana to state a "`general proposition [that] the inherent sovereign powers of an Indian Tribe do not extend the activities of nonmembers of the tribe' except to the extent `necessary to protect tribal self-government or to control internal relations'"). Montana itself limited its holding to nonmember conduct on non-Indian fee land, 450 U.S. at 557, 101 S.Ct. 1245 ("[T]he power of the Tribe to regulate non-Indian fishing and hunting on reservation land owned in fee by nonmembers of the Tribe."), and Strate confirmed that limitation, 520 U.S. at 446, 117 S.Ct. 1404 ("Montana thus described a general rule that ... Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation....). Even if Hicks could be interpreted as suggesting that the Montana rule is more generally applicable than either Montana or Strate have allowed, Hicks makes no claim that it modifies or overrules Montana.

The Supreme Court has cautioned that "if a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989)). Montana limits its scope to a Tribe's civil authority over the conduct of nonmembers on non-Indian fee land, and Strate affirms that limitation. Our holding therefore fits squarely within Montana, which both Strate and Hicks characterize as the "pathmarking case." See Hicks, 533 U.S. at 358, 121 S.Ct. 2304; Strate, 520 U.S. at 445, 117 S.Ct. 1404.

6. Add the following footnote to the last sentence of the last paragraph on page 11930 [300 F.3d at 1043]:

As an Ogalala Sioux, McDonald is also subject to the criminal jurisdiction of the Northern Cheyenne Tribal Court. See 25 U.S.C. § 1301(2) (establishing "the inherent power of Indian tribes ... to exercise criminal jurisdiction over all Indians"); United States v. Enas, 255 F.3d 662 (2001) (en banc), cert. denied, 534 U.S. 1115, 122 S.Ct. 925, 151 L.Ed.2d 888 (2002). Thus the tribal court in this case is merely exercising civil jurisdiction over a defendant [534] whom it could prosecute criminally.

The amendments to the dissent are as follows:

1. On page 11933 [300 F.3d at 1045], delete the second sentence of the first full paragraph, and its accompanying citation.

2. On page 11933 [300 F.3d at 1045], first full paragraph, change "A tribe also, with two exceptions, lacks the ..." to "With two exceptions, a tribe lacks the ..." Change the citation of this sentence from "Montana, 450 U.S. at 563-66, 101 S.Ct. 1245" to "Id. at 563-66, 101 S.Ct. 1245."

3. On page 11933 [300 F.3d at 1045], change the block-quote to a regular quote beginning at "the inherent sovereign powers ..."

4. On page 11934 [300 F.3d at 1046], line 22, change "three cases" to "two cases."

5. On pages 11935-11937 [300 F.3d at 1046-48], delete paragraphs discussing Iowa Mutual, i.e. delete the paragraphs beginning at second full paragraph on page 11935 [300 F.3d at 1046] ("The third case ...") to the paragraph ending on page 11937 [300 F.3d at 1047-48].

6. On page 11937 [300 F.3d at 1047-48]: replace the second full paragraph with the following:

Consequently, and contrary to the majority's position, no current authority from the Supreme Court or from any circuit court supports the view that the Montana rule does not apply to tribal land cases. In fact, the opposite is true. The recent Supreme Court decision of Nevada v. Hicks, 533 U.S. 353, 359-60, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) interpreted Montana to apply to tribal land cases. Specifically, the Supreme Court emphasized that Montana's caution that "Indian tribes retain inherent sovereignty over non-Indians on their reservations, even on non-Indian fee lands," 450 U.S. at 565, 101 S.Ct. 1245, clearly implies "that the general rule of Montana applies to both Indian and non-Indian land." 533 U.S. at 359-60, 121 S.Ct. 2304. Hicks thus clarified that "the existence of tribal ownership is not alone enough to support regulatory jurisdiction over nonmembers." Id. at 360, 121 S.Ct. 2304.

The majority throws Hicks aside because of the limited nature of Hicks' holding. While I agree that Hicks is "limited to the question of tribal-court jurisdiction over state officers enforcing state law," id. at 358, n. 2, 121 S.Ct. 2304, Hicks' interpretation of Montana should nonetheless guide our decision. The majority's reliance on Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997), misses the mark. Agostini warns us that "if a precedent of [the Supreme Court] has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls." Id. at 237, 117 S.Ct. 1997. Yet here, no Supreme Court precedent has direct application, and Hicks did not reject the reasons of its prior cases, but merely interpreted them.

7. On page 11937 [300 F.3d at 1047-48]: replace first three sentences (and 3rd sentence's citation) of the third full paragraph with the following:

When confronted with a question of first impression, it is our duty to consider how the "Supreme Court would decide the pending case today." Vukasovich, Inc. v. Commissioner, 790 F.2d 1409, 1416 (9th Cir.1986). We must examine the thrust of the Supreme Court cases in this area and determine, as best we can, where the Court is leading us. [535] Hicks, though limited, counsels us to extend the Montana rule to tribal land cases. Even before Hicks, the Supreme Court has repeatedly stated that its decisions on the subject of tribal inherent authority rest on the "general proposition" that "the inherent sovereign powers of an Indian tribe ... do not extend to the activities of nonmembers of the tribe." Strate, 520 U.S. at 445-46, 117 S.Ct. 1404 (citation and quotation marks omitted).

8. Insert the following paragraphs at the end of the dissent:

One final matter warrants attention. In a footnote, the majority suggests that its conclusion is supported by the fact that "the tribal court in this case is merely exercising civil jurisdiction over a defendant whom it could prosecute criminally." This footnote suggests that tribal civil jurisdiction may be analyzed by an Indian/non-Indian distinction, rather than the member/nonmember distinction. I separate myself from this dicta, and mention that this, too, is an open question.

The majority cites United States v. Enas, 255 F.3d 662 (9th Cir.2001) (en banc), which held that tribes retain inherent sovereignty to exercise criminal jurisdiction over Indians, irrespective of whether the Indian defendant is a member of the tribe. Yet Enas did not determine whether tribes retain inherent sovereignty to exercise civil jurisdiction over nonmember Indians. Though Congress has restored tribal criminal jurisdiction over nonmember Indians in 25 U.S.C. § 1301(2), it has not delegated this authority in civil disputes.

Neither the Supreme Court nor the Ninth Circuit has answered the question of tribal civil jurisdiction over nonmember Indians. However, the Supreme Court hints that even if the defendant is an Indian, his status as a nonmember governs the court's analysis. Hicks, 533 U.S. at 377, n. 2, 121 S.Ct. 2304 (Souter, J., concurring) ("the relevant distinction, as we implicitly acknowledged in Strate, is between members and nonmembers of the tribe"); Strate, 520 U.S. at 445-46, 117 S.Ct. 1404 (stating that a tribe's inherent sovereign powers "do not extend to the activities of nonmembers," and on the same page recognizing that some tribal nonmembers are also Indians) (internal citation omitted); Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 161, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980) (holding that state's taxing power over nonmember Indians is equivalent to its taxing power over non-Indians because "nonmembers are not constituents of the governing Tribe. For most practical purposes those Indians stand on the same footing as non-Indians resident on the reservation. There is no evidence that nonmembers have a say in tribal affairs or significantly share in tribal disbursements."). Because the majority's footnote is dicta, and merely suggests (but does not decide) that civil jurisdiction may be analyzed under the Indian/non-Indian distinction, I state no opinion on the matter here.

OPINION

JAMES R. BROWNING, Circuit Judge.

This case arises from an accident on Route 5, a Bureau of Indian Affairs ("BIA") road within the Northern Cheyenne Indian Reservation in Big Horn County, Montana. On the evening of May 2, 1998, Kale Means, a member of the Cheyenne Tribe and a minor, was seriously injured when his car struck a horse that had wandered onto Route 5. The horse belonged to Arthur L. McDonald, who operated a quarter horse ranching operation [536] on land he owns in fee within the exterior boundaries of the Northern Cheyenne Reservation. Mr. McDonald is an enrolled member of the Ogalala Sioux Tribe, but he is not a member of the Northern Cheyenne Tribe.

On March 4, 1999, Patti Means, guardian for Kale Means, brought a civil action against Arthur McDonald and his family in the Northern Cheyenne Tribal Court, alleging McDonald was negligent in allowing his horse to trespass onto Route 5. The McDonalds filed suit in the United States district court for the district of Montana, challenging the tribal court's jurisdiction over the dispute. The district court rejected the Tribe's motion to intervene and held that the tribal court lacked jurisdiction, granting summary judgment for the McDonalds and enjoining Means from pursuing his action in tribal court. Means appeals the district court's grant of summary judgment, and we reverse. The Tribe appeals the denial of their motion to intervene, and we affirm.

DISCUSSION

1. Tribal Jurisdiction^[1]

Tribes maintain considerable authority over the conduct of both tribal members and nonmembers on Indian land, or land held in trust for a tribe by the United States. Strate v. A-1 Contractors, 520 U.S. 438, 454, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997); Williams v. Lee, 358 U.S. 217, 222, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). However, in Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), the Supreme Court held that a tribal court lacks authority over the conduct of nonmembers on land within a reservation that is owned in fee by a non-Indian.^[2] Id. at 565-566, 101 S.Ct. 1245.

Strate v. A-1 Contractors addressed tribal court jurisdiction over a suit arising from an accident on a state highway that ran through the Fort Berthold Indian Reservation in North Dakota. 520 U.S. at 442, 117 S.Ct. 1404. The Court held that by granting North Dakota a right-of-way to maintain the highway, the Tribe had, in effect, alienated the land to a non-member, and that the general rule in Montana thus applied to bar civil jurisdiction over the suit. Id. at 456, 117 S.Ct. 1404. The Strate Court reserved the question of civil jurisdiction over nonmember conduct on tribal roads. Id. at 442, 117 S.Ct. 1404.

The district court rejected tribal jurisdiction because it equated Route 5 with the state highway held in Strate to constitute alienated non-Indian land governed by the rule in Montana. Means argues that Route 5 is in fact a tribal road exempted from the Strate analysis, and that the Tribe retained an interest in the road sufficient to survive the Montana rule barring tribal jurisdiction. The primary issue in this case is thus whether BIA roads, like the state highway considered in Strate, are non-Indian fee land subject to the Montana rule. We conclude that BIA roads constitute tribal roads not subject to Strate, and that the BIA right-of-way did not extinguish the Tribe's gatekeeping rights to the extent necessary to bar tribal court jurisdiction under Montana.

[537] A. Route 5 is a "tribal road" not governed by Strate.

Strate held that a tribal court may not hear civil claims against nonmembers arising from accidents on a state highway that crosses a reservation, because the tribe had relinquished all gatekeeping rights over the highway right-of-way. Strate, 520 U.S. at 455-56, 117 S.Ct. 1404. However, the Court qualified that holding by noting that it "express[ed] no view on the governing law or proper forum when an accident occurs on a tribal road within a reservation." Id. at 442, 117 S.Ct. 1404. We conclude that Route 5, as a BIA road, is a tribal road expressly reserved from the rule in Strate.

Title 25, Part 170 of the Code of Federal Regulations ("Roads of the Bureau of Indian Affairs") makes clear that a BIA road is considered an "Indian reservation road," 25 C.F.R. § 170.1. This is so even where a road serves both Indian and non-Indian land, see id. at § 170.7, and even though BIA roads are generally open to public use, id. at § 170.8. BIA roads are constructed on reservations "to provide an adequate system of road facilities serving Indian lands," id. at § 170.3, and are held by the BIA in trust for the benefit of the tribe, see United States v. Mitchell, 463 U.S. 206, 224, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). An "Indian reservation road" serving Indian land and held in trust for a tribe is a "tribal road."

Precedent supports this conclusion. The Supreme Court declined to distinguish between tribal and BIA roads in White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 148 n. 14, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980) (noting, in the context of federal preemption, "we see no basis, and respondents point to none, for distinguishing between roads maintained by the Tribe and roads maintained by the Bureau of Indian Affairs"). The Ninth Circuit also equated a BIA road with a tribal road in Allstate v. Stump, 191 F.3d 1071, 1072 (9th Cir.1999) (describing an accident on Route 9, a BIA road,^[3] as occurring "on a tribal road in the Rocky Boy Reservation"). As a definitional matter, BIA roads like Route 5 are tribal roads not subject to the rule barring jurisdiction in Strate.

B. Route 5 is not "non-Indian fee land" under Montana.

Having concluded that Route 5 falls outside the direct scope of Strate, we nevertheless consider whether the facts support tribal jurisdiction under the Montana rule that tribes lack authority over the conduct of nonmembers on non-Indian fee land within a reservation. Montana, 450 U.S. at 565-66, 101 S.Ct. 1245; Strate, 520 U.S. at 446, 117 S.Ct. 1404 (summarizing Montana and stating that "[t]he term `non-Indian fee lands,' as used in this passage and throughout the Montana opinion, refers to reservation land acquired in fee simple by non-Indian owners"). We hold that they do, because Route 5 cannot be considered "non-Indian fee land."

Although the Northern Cheyenne tribe reserved no express right of dominion when it granted the Route 5 right-of-way to the BIA, the grant is held by the federal government in trust for the tribe, for the direct benefit of the tribe.^[4] It is [538] hardly an unencumbered fee (and only loosely owned by a non-Indian). It is well established that the BIA holds a fiduciary relationship to Indian tribes, and its management of tribal rights-of-way is subject to the same fiduciary duties. Mitchell, 463 U.S. at 224-226, 103 S.Ct. 2961. The Route 5 right-of-way was granted to the Bureau of Indian Affairs "to provide an adequate system of road facilities serving Indian lands." 25 C.F.R. § 170.3. The state recipient of the right-of-way held in Strate to constitute non-Indian fee land had no comparable duty. That right-of-way was granted to North Dakota for a specific, non-Indian related purpose: "to facilitate public access to Lake Sakakawea, a federal water resource project under the control of the Army Corps of Engineers." Strate, 520 U.S. at 455, 117 S.Ct. 1404.^[5] Route 5 is not "land acquired in fee simple by non-Indian owners." Strate, 520 U.S. at 446, 117 S.Ct. 1404.

That the tribal court may exercise jurisdiction over a claim arising on Route 5 is buttressed by the Supreme Court's application of the Montana test in Strate.^[6] In determining that the state highway there in question constituted non-Indian fee land, the Strate Court hinged tribal jurisdiction on the degree to which the tribe had retained gatekeeping rights over the right-of-way. Strate, 520 U.S. at 455-56, 117 S.Ct. 1404. Examining the Route 5 right-of-way against similar standards, we conclude that the scope of rights and responsibilities retained by a tribe over a BIA road exceed those retained over the state highway in Strate, and that these additional retained rights suffice to maintain tribal jurisdiction over nonmember conduct on BIA roads.

In Strate, the Court found that the highway was non-Indian fee land because the grant extinguished in the tribe the landowner's right to occupy and exclude:

Forming part of the State's highway, the right-of-way is open to the public, and traffic on it is subject to the State's control. The Tribes have consented to, and received payment for, the State's use of the 6.59-mile stretch for a public highway. They have retained no gatekeeping right. So long as the stretch is maintained as part of the State's highway, the Tribes cannot assert a landowner's right to occupy and exclude. We therefore align the right-of-way, for the purpose at hand, with land alienated to non-Indians. Our decision in Montana, accordingly, governs this case.

Id. at 455-56, 117 S.Ct. 1404 (citations omitted). In determining that the tribe had lost its right to occupy and exclude (and the corresponding right to exercise tribal jurisdiction), Strate relied on five factors: (1) the right of way formed part of the State's high-way, (2) it was held open to the public, (3) traffic was subject to state control, (4) the tribe consented to the State's use of the property, and (5) the [539] tribe received payment for use of the property. Id.

We consider these factors in evaluating the status of the Route 5 right-of-way. Although the Northern Cheyenne relinquished certain gatekeeping rights in allowing public use of Route 5 and in collaborating with the BIA to maintain it, the Tribe maintained others of significance. The BIA right-of-way is not granted to the State, and forms no part of the State's highway system. The Code of Federal Regulations specifically distinguishes BIA roads on reservations from other public roads on reservations that are federally funded via the State through the Federal Aid Highway Act. 25 C.F.R. § 170.2(f).

Moreover, the Route 5 grant preserves to the Tribe considerable rights and responsibility over traffic and maintenance on the right-of-way. See generally 25 C.F.R. § 170. For example, the Code of Federal Regulations makes clear that "[t]he administration and maintenance of Indian reservation roads and bridges is basically a function of the local government," 25 C.F.R. § 170.6, which, as regards Route 5, is the Northern Cheyenne Tribe. The Commissioner of Indian Affairs, who is responsible for BIA road planning and design, must secure tribal consent at every stage of road design and construction:

The Commissioner ... shall keep the appropriate local tribal officials informed of all technical information relating to the project alternatives of proposed road developments. The Commissioner shall recommend to the tribe those proposed road projects having the greatest need as determined by the comprehensive transportation analysis. Tribes shall then establish annual priorities for road construction projects. Subject to the approval of the Commissioner, the annual selection of road projects for construction shall be performed by tribes.

25 C.F.R. § 170.4a. The Commissioner must also obtain tribal consent before assigning rights-of-way for surveying and construction. 25 C.F.R. § 170.5(a). The Commissioner must make recommendations to local (tribal) officials about maximum speed and weight limits, and other regulatory needs, and may only erect corresponding signs with tribal permission. 25 C.F.R. § 170.8(b). Only the tribe is authorized to enact and enforce such ordinances on Indian lands. Id. Although Part 170.8(a) designates BIA roads as generally open for public use, the Commissioner may, on behalf of the tribe, restrict such use or close the road to all public use "when required for public safety, fire prevention or suppression, or fish and game protection, or to prevent damage to unstable roadbed." 25 C.F.R. § 170.8(a).^[7] Because of these provisions, traffic on Route 5 is subject to a degree of tribal control not present in Strate.

In granting the Route 5 right-of-way, the Northern Cheyenne Tribe relinquished some, but not all, of the sticks that form the landowner's traditional bundle of gatekeeping rights. The tribe has consented to public use of the road. However, traffic on the road remains subject to the authority of the tribe, both in rulemaking and enforcement. No meaningful compensation was received by the Tribe in exchange for the right-of-way,^[8] presumably because the right-of-way is maintained, as all BIA properties are, for the benefit of the tribe. [540] We conclude that under Montana, the Tribe retained enough of its gatekeeping rights that Route 5 cannot be considered non-Indian fee land, and that the Tribe thus maintains jurisdiction over Route 5.

McDonald argues that the majority's analysis "is not consistent with" the Supreme Court's decision in Nevada v. Hicks, 533 U.S. 353, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001), that the ownership status of land is not dispositive in determining that a tribal court lacks jurisdiction over a civil claim against state officers who enter tribal land to execute a search warrant against a tribe member suspected of having violated state law outside the reservation. 533 U.S. at 360, 121 S.Ct. 2304. However, the Court noted that "[o]ur holding in this case is limited to the question of tribal-court jurisdiction over state officers enforcing state law. We leave open the question of tribal-court jurisdiction over nonmember defendants in general." Id. at 358, n. 2, 121 S.Ct. 2304; see also id. at 386, 121 S.Ct. 2304 (Ginsburg, J., concurring) (writing separately to emphasize that the question of tribal jurisdiction over other nonmember defendants remains open). The limited nature of Hicks's holding renders it inapplicable to the present case.^[9]

We hold that the nature and purpose of the grant, the continuing control exercised by the Tribe over the road, and the Supreme Court's previous treatment of BIA roads support the conclusion that the tribal court had jurisdiction to entertain Means's suit against the McDonald family.^[10]

2. Intervention

The Tribe sought and was denied intervention in the district court action. [541] ^[11] The Tribe argues the district court applied the wrong standard, inappropriately requiring that an intervenor must possess a "direct economic stake" in the action. The Tribe asserts that its interest in preserving jurisdiction over Route 5 and "to provide a judicial forum for its members" suffices to justify intervention.

A petitioner seeking intervention of right under Federal Rule of Civil Procedure Rule 24(a) "must (1) make a timely motion, (2) claim a significantly protectable interest in the property that is the subject of the action, (3) demonstrate an impairment of its ability to protect that interest, and (4) prove that the interest is inadequately represented by the parties to the action." Montana v. U.S. Environmental Protection Agency, 137 F.3d 1135, 1141 (9th Cir.1998).

The petition for intervention fails because the Tribe cannot show a protectable interest in the property that is the subject of the action. The Tribe lacks any interest in the Means's damages claim; it seeks only to protect a general sovereignty interest in controlling Route 5. When we considered the similar question of whether a tribe is an "indispensable party" under Rule 19(a), we concluded that a tribe does not have "a legally protected interest in maintaining a court system," and that holding that a tribe is a necessary party "whenever [its] jurisdiction is challenged would lead to absurd results." Yellowstone County v. Pease, 96 F.3d 1169, 1173 (9th Cir.1996). The Tribe also claims as a protectable property interest its ability to collect fees from non-member contractors who work on Route 5, but the property at issue here is not Route 5 itself but a tort claim for damages.

The Tribe has not shown that its interest is inadequately represented. Appellant Means has argued vigorously that the tribal court has jurisdiction over torts occurring on Route 5. As evidence that Means cannot adequately represent the Tribe's interests, the Tribe points to his omission of one argument that it believes provides support for a finding of tribal jurisdiction. However, Means has presented a wide array of arguments to show that Route 5 is the equivalent of a tribal road.

Courts have broad discretion to deny permissive intervention under Federal Rule of Civil Procedure 24(b). See, e.g., San Jose Mercury News, Inc., 187 F.3d at 1100. We cannot say that the district court erred in denying the Tribe permission to intervene.

CONCLUSION

Accordingly, the district court's grant of summary judgment for the defendant on grounds that the tribal court lacked jurisdiction is REVERSED. The district court's decision to deny the Northern Cheyenne Tribe's petition to intervene is AFFIRMED.

WALLACE, Senior Circuit Judge, dissenting:

The majority concludes that a tribal court has the inherent authority to exercise civil jurisdiction over tribal nonmembers acting on tribal land within reservation boundaries. I dissent because I believe the majority's decision is [542] inconsistent with over two decades of Supreme Court precedent on the subject of tribal inherent authority. The Court long ago cast aside the notion that a tribe has the inherent authority to exercise jurisdiction over anyone within reservation boundaries. Montana v. United States, 450 U.S. 544, 565, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). Indeed, tribal inherent authority has consistently been confined to those circumstances in which a particular jurisdictional exercise is necessary to protect the tribe's ability to govern itself. Strate v. A-1 Contractors, 520 U.S. 438, 459, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997).

As the Supreme Court has stated, a tribe has the inherent authority "to punish tribal offenders, ... to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members." Montana, 450 U.S. at 564, 101 S.Ct. 1245 (citation omitted). With two exceptions, a tribe lacks the inherent authority to exercise civil jurisdiction over non-members acting on "fee land" (land owned in fee by tribal nonmembers within reservation boundaries). Id. at 563-66, 101 S.Ct. 1245 (tribe lacks the inherent authority to ban hunting and fishing by nonmembers on non-Indian property within reservation boundaries), Strate, 520 U.S. at 459, 117 S.Ct. 1404 (tribal court lacks the inherent authority to exercise jurisdiction over tribal nonmember that allegedly committed a tort on fee land).

In its decisions on the subject of tribal inherent authority, the Court has repeatedly emphasized that "[a tribe's inherent power does not reach] beyond what is necessary to protect tribal self-government or to control internal relations." Id. (quoting Montana, 450 U.S. at 564, 101 S.Ct. 1245) (quotation marks omitted, alteration in original). In keeping with this principle, the Court has stated that "the inherent sovereign powers of an Indian tribe — those powers a tribe enjoys apart from express provision by treaty or statute — do not extend to the activities of nonmembers of the tribe." Id. at 445-46, 117 S.Ct. 1404 (quoting Montana, 450 U.S. at 565, 101 S.Ct. 1245) (quotation marks omitted).

The rule that a tribe may not exercise jurisdiction over a nonmember has two exceptions. First, a tribe may exercise civil jurisdiction over a nonmember if the nonmember has entered into a "consensual relationship[ ] with the tribe or its members." Id. at 446, 117 S.Ct. 1404. Second, a tribe may exercise civil jurisdiction over a nonmember if the nonmember's "activity ... directly affects the tribe's political integrity, economic security, health, or welfare." Id.

The majority's mistake now becomes clear. The majority establishes a presumption in favor of tribal civil jurisdiction over nonmembers in cases involving tribal land (land owned by the tribe within reservation boundaries). Maj. Op. at 536. This startling statement turns the Court's long-standing approach to tribal inherent authority on its head.

The majority relies on two cases to accomplish this end. The first is Strate v. A-1 Contractors, 520 U.S. at 454, 117 S.Ct. 1404. Relying on Montana, the Strate opinion reasoned that "tribes retain considerable control over nonmember conduct on tribal land." Id. While I agree with this statement, I do not agree that it amounts to a general presumption in favor of tribal civil jurisdiction over nonmembers in cases that arise on tribal land. Both the footnote appended to the end of the quotation taken by the majority from Strate, id. n. 8, and the reliance on Montana that precedes the quoted language suggest that the Court was referring to a tribe's ability to "prohibit nonmembers from hunting or [543] fishing on land belonging to the Tribe ...." Montana, 450 U.S. at 557, 101 S.Ct. 1245. That a tribe has this inherent authority is well settled. This does not mean that a tribe may exercise civil jurisdiction over nonmembers in all cases that arise on tribal land. Indeed, Strate, after applying Montana's presumption against a tribe's inherent authority in a case that arose on fee land, left open the question of whether the Montana rule extended to accident cases that arise on a tribal road within a reservation. Strate, 520 U.S. at 442, 117 S.Ct. 1404.

The majority also relies on Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), a case approaching its half-century birthday. Williams assumed without deciding that tribal courts have criminal and civil jurisdiction over anyone acting within reservation boundaries, not just on tribal land. Id. at 223, 79 S.Ct. 269. Because this assumption was cast aside long ago, it is hardly support for the majority's presumption theory. See Oliphant, 435 U.S. at 212, 98 S.Ct. 1011; Montana, 450 U.S. at 566-567, 101 S.Ct. 1245; Strate, 520 U.S. at 442, 117 S.Ct. 1404.

Consequently, and contrary to the majority's position, no current authority from the Supreme Court or from any circuit court supports the view that the Montana rule does not apply to tribal land cases. In fact, the opposite is true. The recent Supreme Court decision of Nevada v. Hicks, 533 U.S. 353, 359-60, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) interpreted Montana to apply to tribal land cases. Specifically, the Supreme Court emphasized that Montana's caution that "Indian tribes retain inherent sovereignty over non-Indians on their reservations, even on non-Indian fee lands," 450 U.S. at 565, 101 S.Ct. 1245, clearly implies "that the general rule of Montana applies to both Indian and non-Indian land." 533 U.S. at 359-60, 121 S.Ct. 2304. Hicks thus clarified that "the existence of tribal ownership is not alone enough to support regulatory jurisdiction over nonmembers." Id. at 360, 121 S.Ct. 2304.

The majority throws Hicks aside because of the limited nature of Hicks' holding. While I agree that Hicks is "limited to the question of tribal-court jurisdiction over state officers enforcing state law," id. at 358, n. 2, 121 S.Ct. 2304, Hicks' interpretation of Montana should nonetheless guide our decision. The majority's reliance on Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997), misses the mark. Agostini warns us that "if a precedent of [the Supreme Court] has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls." Id. at 237, 117 S.Ct. 1997. Yet here, no Supreme Court precedent has direct application, and Hicks did not reject the reasons of its prior cases, but merely interpreted them.

When confronted with a question of first impression, it is our duty to consider how the "Supreme Court would decide the pending case today." Vukasovich, Inc. v. Commissioner, 790 F.2d 1409, 1416 (9th Cir.1986). We must examine the thrust of the Supreme Court cases in this area and determine, as best we can, where the Court is leading us. Hicks, though limited, counsels us to extend the Montana rule to tribal land cases. Even before Hicks, the Supreme Court has repeatedly stated that its decisions on the subject of tribal inherent authority rest on the "general proposition" that "the inherent sovereign powers of an Indian tribe ... do not extend to the activities of nonmembers of the tribe." Strate, 520 U.S. at 445-46, 117 S.Ct. 1404 (citation and quotation marks [544] omitted). This is because the concept of inherent authority is meant to protect a tribe's ability to govern itself and to "control internal relations." Id. at 459, 117 S.Ct. 1404 (citation and quotation marks omitted). I have no doubt that nonmember acts on tribal land will often implicate these core concerns. Indeed, a tribe's ability to regulate hunting and fishing on its own land is undoubtedly vital to its economic welfare. Montana, 450 U.S. at 557, 101 S.Ct. 1245. I am equally confident, however, that many nonmember acts on tribal land will be wholly unrelated to a tribe's ability to govern itself. It would be difficult to argue, for example, that a tort committed by a nonmember against another nonmember on tribal land implicates the core concerns identified by the Court in Strate. Yet, a tribal court would have the inherent authority to hear such a case under the majority's position.

Unlike the majority's approach, the Montana rule and its exceptions protect only those jurisdictional exercises that are necessary "to protect tribal self-government or to control internal relations." Strate, 520 U.S. at 459, 117 S.Ct. 1404 (citation and quotation marks omitted). Thus, if Montana were applied to tribal land cases, a tribal court would not have inherent authority to hear the nonmember tort case described above but it would have inherent authority to exercise civil jurisdiction over a nonmember that either entered into a "consensual relationship with the tribe or its members" or engaged in an "activity that directly affect[ed] the tribe's political integrity, economic security, health or welfare." Strate, 520 U.S. at 446, 117 S.Ct. 1404.

Would the Northern Cheyenne Tribe have the inherent authority to assert jurisdiction over this case — a case involving a tort allegedly committed by a nonmember against a member — if we were to apply the Montana rule? I conclude that the tribal court lacks jurisdiction because neither Montana exception applies. The tort that is the subject matter before us on this appeal did not arise out of a consensual relationship between McDonald and the tribe or a tribe member. Further, the injury that Means sustained did not "imperil the political integrity, the economic security, or the health and welfare of the [t]ribe." Wilson v. Marchington, 127 F.3d 805, 815 (9th Cir.1997) (citation and quotation marks omitted).

I point out that our case deals only with the tribe's inherent jurisdiction. By concluding there is no inherent jurisdiction in this case, I express no view on whether it would be a better public policy for the Northern Cheyenne Tribe to have civil jurisdiction over a case like this. That is a question better left to Congress. Montana, 450 U.S. at 564, 101 S.Ct. 1245 (a tribe may not "exercise ... tribal power beyond what is necessary to protect tribal self-government or to control internal relations ... without express congressional delegation.") (citations omitted).

One final matter warrants attention. In a footnote, the majority suggests that its conclusion is supported by the fact that "the tribal court in this case is merely exercising civil jurisdiction over a defendant whom it could prosecute criminally." This footnote suggests that tribal civil jurisdiction may be analyzed by an Indian/non-Indian distinction, rather than the member/nonmember distinction. I separate myself from this dicta, and mention that this, too, is an open question.

The majority cites United States v. Enas, 255 F.3d 662 (9th Cir.2001) (en banc), which held that tribes retain inherent sovereignty to exercise criminal jurisdiction over Indians, irrespective of whether the Indian defendant is a member of the tribe. Yet Enas did not determine whether [545] tribes retain inherent sovereignty to exercise civil jurisdiction over non-member Indians. Though Congress has restored tribal criminal jurisdiction over nonmember Indians in 25 U.S.C. § 1301(2), it has not delegated this authority in civil disputes.

Neither the Supreme Court nor the Ninth Circuit has answered the question of tribal civil jurisdiction over non-member Indians. However, the Supreme Court hints that even if the defendant is an Indian, his status as a nonmember governs the court's analysis. Hicks, 533 U.S. at 377, n. 2, 121 S.Ct. 2304 (Souter, J., concurring) ("the relevant distinction, as we implicitly acknowledged in Strate, is between members and nonmembers of the tribe"); Strate, 520 U.S. at 445-46, 117 S.Ct. 1404 (stating that a tribe's inherent sovereign powers "do not extend to the activities of nonmembers," and on the same page recognizing that some tribal nonmembers are also Indians) (internal citation omitted); Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 161, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980) (holding that state's taxing power over nonmember Indians is equivalent to its taxing power over non-Indians because "nonmembers are not constituents of the governing Tribe. For most practical purposes those Indians stand on the same footing as non-Indians resident on the reservation. There is no evidence that nonmembers have a say in tribal affairs or significantly share in tribal disbursements."). Because the majority's footnote is dicta, and merely suggests (but does not decide) that civil jurisdiction may be analyzed under the Indian/non-Indian distinction, I state no opinion on the matter here.

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[1] We review a grant of summary judgment de novo. Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.2000).

[2] Montana announced two exceptions to the general rule that tribes lack jurisdiction over nonmembers on non-Indian land: the first applies to non-members who enter consensual relationships with the tribe or its members; the second applies to activity that directly affects the tribe's political integrity, economic security, health, or welfare. Montana, 450 U.S. at 565-66, 101 S.Ct. 1245. Neither exception applies here.

[3] The Brief for Appellees Vina Stump and Vernon The Boy identifies the tribal road at issue in Allstate v. Stump as Route 9, and Means has provided this court with documentation showing that a Route 9 right-of-way similar to that for Route 5 was granted to the BIA.

[4] Strate rejected the argument that Montana did not govern because the land underlying the conveyed right-of-way was held in trust for the tribe. 520 U.S. at 454, 117 S.Ct. 1404. In Strate, the right-of-way itself was conveyed wholly to the state. Here, however, both the underlying land and the right-of-way itself were conveyed in trust for the tribe.

[5] Similarly, we decided that tribal jurisdiction was lacking over an accident that occurred on a reservation right-of-way in Boxx v. Long Warrior, 265 F.3d 771, 775 (9th Cir.2001), because that right-of-way was granted to the National Park Service "for road purposes in perpetuity, including without limitation by reason of enumeration, the right to construct, maintain and use road, road turn offs, scenic view areas and parking areas."

[6] Although a claim arising on Route 5 is not governed by the result in Strate, that opinion provides a helpful model of how we should evaluate a tribal road right-of-way under Montana.

[7] While this does not differ greatly from what happens on other state and federal roads, it also differs little from what happens on other tribal roads: generally, all are open for public use until they are closed for one of the above-listed public purposes.

[8] The grant of easement states that the tribe received one dollar in exchange for the right-of-way.

[9] McDonald argues that Hicks suggests the rule in Montana should be extended to bar tribal jurisdiction not only over the conduct of nonmembers on non-Indian fee land but on tribal land as well. See 533 U.S. at 359, 121 S.Ct. 2304 (interpreting Montana to state a "`general proposition [that] the inherent sovereign powers of an Indian Tribe do not extend the activities of nonmembers of the tribe' except to the extent `necessary to protect tribal self-government or to control internal relations'"). Montana itself limited its holding to nonmember conduct on non-Indian fee land, 450 U.S. at 557, 101 S.Ct. 1245 ("[T]he power of the Tribe to regulate non-Indian fishing and hunting on reservation land owned in fee by nonmembers of the Tribe."), and Strateconfirmed that limitation, 520 U.S. at 446, 117 S.Ct. 1404 ("Montana thus described a general rule that ... Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation. ...). Even if Hicks could be interpreted as suggesting that the Montana rule is more generally applicable than either Montana or Strate have allowed, Hicks makes no claim that it modifies or overrules Montana.

The Supreme Court has cautioned that "if a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989)). Montana limits its scope to a Tribe's civil authority over the conduct of nonmembers on non-Indian fee land, and Strate affirms that limitation. Our holding therefore fits squarely within Montana, which both Strate and Hicks characterize as the "pathmarking case." See Hicks, 533 U.S. at 358, 121 S.Ct. 2304; Strate, 520 U.S. at 445, 117 S.Ct. 1404.

[10] As an Ogalala Sioux, McDonald is also subject to the criminal jurisdiction of the Northern Cheyenne Tribal Court. See 25 U.S.C. § 1301(2) (establishing "the inherent power of Indian tribes ... to exercise criminal jurisdiction over all Indians"); United States v. Enas, 255 F.3d 662 (2001) (en banc), cert. denied, 534 U.S. 1115, 122 S.Ct. 925, 151 L.Ed.2d 888 (2002). Thus the tribal court in this case is merely exercising civil jurisdiction over a defendant whom it could prosecute criminally.

[11] The Tribe sought intervention as a matter of right, and alternatively sought permissive intervention. The decision to deny intervention as of right is reviewed de novo. Waller v. Financial Corp. of America, 828 F.2d 579, 582 (9th Cir.1987). The decision to deny permissive intervention is "directed to the sound discretion of the district court." San Jose Mercury News v. U.S. District Court, 187 F.3d 1096, 1100 (9th Cir.1999).