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Oliphant v. Suquamish Indian Tribe 435 US 191 (1978)
The tribes are not a sovereign nation, and they do not have governmental jurisdiction over non-tribal members or non-tribal land. The U.S. Supreme Court has repeatedly ruled this way. See:
Ruled that, where nonmembers are concerned, "the exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations ... cannot survive without express congressional delegation,"
Brendale v. Yakima Tribes (1989),
Although the treaty between the United States and the Yakima Indian Nation (Yakima Nation or Tribe) provided that the Tribe would retain its reservation for its "exclusive use and benefit," and that "no white man [shall] be permitted to reside upon the said reservation without [the Tribe's] permission, and currently 20% of the land is non-tribal owned, the tribe can ONLY impose zoning regulation on that 3.1% of land within reservation area that is closed to public entry that was not owned by the tribe. This is because "The Tribe does not have authority to zone fee lands owned by nonmembers within the reservation. Pp. 421-433.
(a) Any regulatory power the Tribe might have under its treaty with the United States cannot apply to lands held in fee by non-Indians. Montana, 450 U.S., at 559 . The Tribe no longer retains the "exclusive use and benefit" of such lands within the meaning of the treaty, since the Indian General Allotment Act allotted significant portions of the reservation, including the lands at issue, to individual members of the Tribe, and those lands subsequently passed, through sale or inheritance, to nonmembers such as petitioners. The Tribe's treaty rights must be read in light of those subsequent alienations, it being unlikely that Congress intended to subject non-Indian purchasers to tribal jurisdiction when an avowed purpose of the allotment policy was to destroy tribal government. Id., at 560, n. 9, 561. The fact that the Allotment Act was repudiated in 1934 by the Indian Reorganization Act is irrelevant, since the latter Act did not restore exclusive use of the lands in question to the Tribe. Id., at 560, n. 9. Pp. 422-425.
(b) Nor does the Tribe derive authority from its inherent sovereignty to impose its zoning ordinance on petitioners' lands. Such sovereignty generally extends only to what is necessary to protect tribal [492 U.S. 408, 410] self-government or to control internal relations, and is divested to the extent it is inconsistent with a tribe's dependent status - i. e., to the extent it involves the tribe's external relations with nonmembers - unless there has been an express congressional delegation of tribal power to the contrary. Montana, supra, at 564. Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 153 ; and United States v. Wheeler, 435 U.S. 313, 326 , reconciled. There is no contention here that Congress has expressly delegated to the Tribe the power to zone the fee lands of nonmembers. Pp. 425-428.
An Indian tribe may not assert criminal jurisdiction over a nonmember Indian.
In these rulings, The Supreme Court has described tribal government as a "quasi-sovereign", or "domestic, dependent-sovereign". The Court explained that a tribe retains some aspects of a sovereign, but only as it relates to a tribe's people, property, and internal affairs. The Court has repeatedly stated that, when the tribes executed treaties, they were divested of governmental authority over non-tribal people and their property. The Supreme Court explained that tribal authority over non-Indians or their property would be inconsistent with the most basic principles of democracy, and constitutional protections.
"Indian reservations and their inhabitants are semi-dependent or totally dependent wards of the federal government. This is reality. It is not sovereignty." "Indians have been drafted into the armed forces, vote in state and federal elections, and receive federal money. Our actions speak louder than our words. Sovereignty is a phrase we have mouthed for over 200 years, but this country has never...treated Indian tribes with any of the courtesy nor respect accorded a true sovereign state or nation, such as a Canada, Mexico, or Great Britain."
Federal Court Judge Randall, as printed in "Indian Country Today", February 29, 1996
Hagen v. Utah, #92-6281 February 23, 1994
The United States Supreme Court Case ruled that large portions of the Uintah and Ouray Reservation had been diminished when the reservation was open to non-Indian settlement, and that opened lands were no longer located within the Reservation. The court ruled "jurisdiction within the exterior boundaries of said Reservation apply only to tribal members and tribal or trust lands."
Since 1904 Congress has explicitly authorized and promoted the ownership of reservation land by non-members, along with the creation and functioning of local governments under State law on the Reservations. The U & O Tribes had greatly diminished sovereignty over those portions of the reservation settled by non-Indians.
Counties with similar circumstances filed Amicus briefs.
STRATE, BERTHOLD INDIAN RESERVATION V. A-1 CONTRACTOR (April 28, 1997The U.S. Supreme Court handed down a decision that involved a motor vehicle accident on a state highway running through a North Dakota Indian Reservation.
Although no tribal members were involved in the accident, Tribal Court attempted to take jurisdiction over the matter. In this unanimous landmark decision, the Court held that when an accident occurs on a public highway maintained by the State, civil action against negligent nonmembers falls within state or federal regulatory and adjudicatory governance; (absent a statute or treaty allowing the tribe,) tribal courts may not exercise jurisdiction in such cases."As to nonmembers, a tribal court's inherent adjudicatory authority is at most as broad as the tribe's regulatory authority". (from Nevada v. Hicks, in reference to A-1 Contractor ruling).
Some believe this decision is a stepping stone in the upholding of nonmember property rights overall. Various county and non-member parties filed amicus briefs in this case.
ALASKA VS. NATIVE VILLAGE OF VENETIE TRIBAL GOVERNMENT 96-1577, February 25, 1998U.S. Supreme Court held: This tribe's land is not "Indian Country."
1943- Reservation created for the Neets'aii Gwich'in Indians on @1.8 million acres surrounding Venetie in Alaska.
1971- Alaska Native Claims Settlement Act revoked Venetie Reservation and others; completely extinguished all aboriginal claims to Alaska land; and transferred $962.5 million in Federal funds and @ 44 million acres of Alaska land to state-chartered private business corporations to be formed by Alaska Natives. Corporations received fee simple title to the transferred land.
1973- Two Neets'aii Gwich in Corporations used provision allowing them to retake title to former reservation land and forgo money, etc. U.S. transferred land to former reservation as tenants in common: later to tribal council.
1986- Alaska built a public school in Venetie. Alaska and private contractor refused to pay tribe taxes for doing business on tribal land.
SOUTH DAKOTA VS. YANKTON SIOUX TRIBE, 96-1581, January 1998A unanimous Supreme Court decision was made in favor of the State. The Supreme Court had agreed to decide whether some 430,000 acres in South Dakota must be considered a reservation of the Yankton Sioux Indian tribe.
State officials' argued that much of the land's reservation status ended during the 1890s when the tribe sold it to the government.
In an 1858 treaty with the U.S. government, the Yankton Sioux exchanged 11 million acres for cash and a 430,000-acre reservation in southern South Dakota
Arizona Public Service Co. v. EPA, 211 F.3d 1280, 1300, D.C. Cir. 2000
"The D.C. Circuit was called upon to determine whether 42 U.S.C.S 7601(d)(2)(B), a provision of the Clean Air Act, delegates to Indian tribes the authority to enforce the Clean Air Act on nonmember fee-owned land within a reservation. A majority of the court upheld the provision as a delegation based on its review of specific language in the statute that it found to establish an express delegation, Judge Ginsburg dissented in part.
"In his thorough and well-reasoned opinion, Judge Ginsburg expressed the view that S 7601(d)(2)(B) contains no express delegation of authority to tribes. He began by noting the general rule that because "an Indian tribe lacks inherent authority to regulate the conduct of a nonmember on land he owns within the boundaries of the tribe's reservation, " a tribe may exercise such authority only by "express congressional delegation."' From text of Bugenig V Hoopla Valley Tribe decision
BUGENIG v HOOPA VALLEY TRIBE # 9915654, October 3, 2000
The ruling states in part, "Supreme Court precedent establishes the existence of a presumption against tribal jurisdiction over nonmembers: "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 544 (emphasis added). As Montana and Strate make clear, tribal jurisdiction over nonmembers is highly disfavored in light of the tribes' "diminished status as sovereigns." Id. at 565. In light of this presumption against such extraordinary grants of power, we believe it appropriate to adopt in this context a "clear statement rule": Congress can make express delegations of power to Indian tribes to regulate
the actions of nonmembers, but because of the presumption against tribal jurisdiction over nonmembers, any such delegation must truly be "express." If Congress uses the "notwithstanding proviso," which is an easily invoked, Court-approved "gold standard" for delegation, then an appropriate delegation has been made. If a tribe claims that some other statutory language represents a conferral of jurisdiction, however, any such alternative language must, on its face, represent a pellucid delegation of the claimed authority."
Atkinson Trading Co. v. Shirley, 532 U. S (2001) (slip op. at 13)
Tribe has no taxing authority over nonmembers' activities on land held by nonmembers in fee. The Navajo Nation's imposition of a hotel occupancy tax upon nonmembers on non-Indian fee land within its reservation is invalid.
Nevada v. Hicks , 99-1994, 196 F.3d1020, 9th Cir. 1999, US Supreme Court June 25, 2001
The Supreme Court held that Tribal authority to regulate state officers in executing process related to the off-reservation violation of state laws is not essential to tribal self-government or internal relations. The State's interest in executing process is considerable, and it no more impairs the Tribes' self-government than federal enforcement of federal law impairs state government. The State's interest is not diminished because this suit is against officials in their individual capacities.
It also ruled that Congress has not stripped the States of their inherent jurisdiction on reservations with regard to off-reservation violations of state law. The federal statutory scheme neither prescribes nor suggests that state officers cannot enter a reservation to investigate or prosecute such violations.
Further, the Tribal Court had no jurisdiction over the §1983 claims. Tribal courts are not courts of "general jurisdiction." The historical and constitutional assumption of concurrent state-court jurisdiction over cases involving federal statutes is missing with respect to tribal courts, and their inherent adjudicative jurisdiction over nonmembers is at most only as broad as their legislative jurisdiction. Congress has not purported to grant tribal courts jurisdiction over §1983 claims, and such jurisdiction would create serious anomalies under 28 U. S. C. §1441.
Finally, petitioners were not required to exhaust their claims in the Tribal Court before bringing them in the Federal District Court. Because the rule that tribal courts lack jurisdiction over state officials for causes of action relating to their performance of official duties is clear, adherence to the tribal exhaustion requirement would serve no purpose other than delay and is therefore unnecessary.
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Home Roland Morris Senate Committee Testimony Drug Store Racism Raising Racism
Roland J. Morris's Story Standing Up to Be Counted
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