November 2002

Blurring the Boundaries of Tribal and State Jurisdiction 

by Robert T. Anderson

A spate of decisions adverse to Indian tribes in 2001 put an exclamation point on the run of defeats tribes have suffered in recent years before the U.S. Supreme Court. In response, the Senate Committee on Indian Affairs held an unprecedented "Hearing on Rulings of the United States Supreme Court Affecting Tribal Government Powers and Authorities," and heard testimony arguing that "the Supreme Court is abandoning its enshrined principle of deferring to Congress and is itself re-shaping and diminishing tribal rights and undermining Indian policy."1 This article gauges the correctness of this assertion by reviewing some basic principles of Indian law, shifting congressional policies, and the Supreme Court's recent rulings. The examination reveals that change has indeed been significant with respect to tribal authority over non-Indians on non-Indian land. However, the Court has continued to be protective of tribal water rights, hunting and fishing rights, and most tribal regulation of members and non-members on tribal lands.

The Supreme Court developed the defining principles in Indian law in the early 19th century under Chief Justice John Marshall in cases known as the "Marshall Trilogy."2 One of the most famous statements respecting tribal, state and federal relations is set out in Worcester v. Georgia, a case rejecting Georgia's assertion of criminal jurisdiction over a non-Indian present within the Cherokee Nation. Chief Justice Marshall's majority opinion succinctly explained the status of Indian tribes under international and federal law in the following terms:

The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed.… The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation is, by our constitution and laws, vested in the government of the United States.3 

This hard and fast rule has been modified over the years, so that by 1973 the Supreme Court noted: "The status of the tribes has been described as an anomalous one and of complex character, for despite their partial assimilation into American culture, the tribes have retained a semi-independent position … not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided."4  The complexity has come in part because Congress has exercised its "plenary power" over Indian affairs in wildly divergent ways over the course of U.S. history.

One of the first acts of Congress was the Indian Trade and Intercourse Act of 1790, which secured tribal lands from state or private-party acquisition without the consent of the U.S. Congress.5 This protective measure, however, was soon augmented by a contradictory federal effort in the 1820s to "remove" Indian tribes from the East to the Oklahoma Territory and other parts of the West.6 The Indian-removal statutes were supplemented by treaty negotiations with western tribes to achieve peaceful relations with the tribes, and more importantly, to gain cessions of vast areas for land-hungry settlers. In exchange, the United States promised permanent homelands and often recognized off-reservation hunting and fishing rights.7 Most of the "permanent" homelands promised in treaties, however, were dramatically reduced in size when non-Indian settlers clamored for land previously "guaranteed" by treaty.8 There were frequent allegations by tribes of fraud on the part of the United States in negotiation of the treaties, but the Supreme Court deferred such questions to Congress.9 Treaty-making with tribes ended in 1871 when the House of Representatives refused to appropriate funds to implement existing treaties unless the Senate agreed that it would no longer participate in the treaty process with tribes. Thereafter, Congress more frequently legislated to change the jurisdictional rules when it saw fit, or when it disagreed with Supreme Court decisions. Major congressional acts were often adopted without even the veneer of agreement that surrounded many of the treaties.

Congress embarked on an aggressive "assimilation policy" in an attempt to end tribalism and make more land available for non-Indian settlement. The primary vehicle for the assimilation policy was the General Allotment Act of 1887,10 which gave the president of the United States authority to assign communal tribal lands to individual tribal members, and restore remaining "surplus lands" to the public domain. As a result of the allotment policy, the Indian land base was reduced from 140 million acres in 1887 to 48 million acres in 1934. By the New Deal era, it was clear that the forced assimilation of Indian people and the destruction of their governments were not going to occur. This was acknowledged by the federal government in the congressionally mandated Merriam Report,11 which proclaimed the allotment policy an unmitigated disaster and prompted passage of the Indian Reorganization Act of 1934 (IRA).12 

The IRA was intended to strengthen tribal governments and to ensure permanent protection for the remaining Indian land base. To that end, it offered tribes the opportunity to reorganize their governmental structure pursuant to federally approved constitutions, and stopped the breakup of the tribal land base. Not long after passage of the IRA, Congress again reversed course and called for the termination of a number of tribes. The termination policy was accompanied by the adoption of Public Law 280, which authorized (and in some instances required) states to extend their jurisdictional reach into Indian country. In response, Indian tribes organized on a national level to fight for their political existence, causing the termination experiment to fizzle out by the early 1960s.13 Formal repudiation of the termination policy was not long in coming.

President Nixon's dramatic message to Congress in 1970 announced the policy of "self-determination without termination." H.R. Doc. No. 91-363, 91st Cong., 2d Sess. (July 8, 1970). Congress followed suit by adopting the Indian Self-Determination Act of 1975,14 which revived the pro-sovereignty spirit of the Indian Reorganization Act and provided for direct tribal administration of certain federal programs. A host of federal statutes adopted in the current self-determination era provide directly for the exercise of delegated federal authority over tribal territory and all those within it.15 

Given the number of 180-degree turns in federal Indian policy, it is dangerous to speculate that no other will occur. However, the consistent congressional support for tribal self-government in the past 30 years, combined with greatly increased tribal economic and political influence, makes another reversal seem unlikely.

The "modern era" in Indian law commenced in 1959, when the Supreme Court relied on the rule of Worcester v. Georgia to hold that contract disputes arising on Indian reservations must be heard in tribal court, i.e., state court jurisdiction would not be allowed.16 The fact that the conduct at issue occurred on the reservation and one party was an Indian was sufficient to defeat state jurisdiction. The Court's ruling was the first of many in which tribes and their members maintained their traditional insulation from state judicial and regulatory jurisdiction.

When tribal lands are involved, the Supreme Court has frequently (and recently) affirmed that Indian tribes exercise governmental powers "not by virtue of any delegation of powers, but rather by reason of their original tribal sovereignty."17 Applying this reasoning, the Court upheld the taxing authority of the Jicarilla Apache Tribe and the Navajo Nation over non-Indian corporations doing business on tribal lands in two hotly contested cases.18 The Court echoed Worcester v. Georgia, and held that tribes possess inherent powers, including "the power of taxation [which] may be exercised over members of the tribe and over nonmembers."19 In New Mexico v. Mescalero Apache Tribe,20 the Court relied on these same principles to uphold tribal regulatory authority to regulate non-Indian hunting and fishing on the Mescalero Apache reservation. The Court struck down conflicting state regulations, noting that "State jurisdiction is preempted by the operation of federal law if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the State interests at stake are sufficient to justify the assertion of State authority."21 

The string of tribal victories, however, included some significant defeats that foreshadowed the current Court's apparent hostility to tribal jurisdiction over nonmembers. The first major defeat for tribal authority is found in a case out of the Seattle area — Oliphant v. Suquamish Indian Tribe.22 The Court held, for the first time in 150 years, that incorporation of tribes into the United States deprived the tribes of an inherent governmental power. The Court thus rejected the rule that incursions on tribal authority would only be found when explicitly authorized by Congress. Although the loss of criminal jurisdiction over non-Indians was a significant blow, what was most damaging was the fact that the Court implied the loss of inherent tribal authority. It would not be long before this approach was transported to the civil jurisdiction context.

In Montana v. United States,23 the Court announced a presumption against the exercise of tribal jurisdiction over nonmembers on non-Indian land within Indian country. Montana involved a challenge to the Crow Tribe's claim of ownership of the Big Horn River and regulation of non-Indian hunting and fishing on the river. After rejecting the tribe's claim of ownership of the bed and banks of the river, the Court held that the tribe lacked jurisdiction to regulate non-Indians on what were held to be state lands. The decision did not cause much alarm among Indian tribes, since the Court set out two exceptions to the general rule: when the non-Indian has entered into consensual relations with the tribe or its members; or when the non-Indian's activities have a significant effect on the political integrity, the economic security, or the health or welfare of the tribe or its members.24 The exceptions seemed quite broad, and many tribal advocates assumed that most assertions of tribal authority would fit within the notion of health or welfare regulation.

Ten years later, in Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation,25 a fractured Court held in plurality opinions: 1) that the Yakima Nation lacked authority to zone non-Indian land in a portion of the Yakima reservation that was predominantly non-Indian in character; and 2) that the Nation did have authority over non-Indian land in an area of the reservation that was said to have retained its "Indian character." Four members of the Court would have denied tribal authority in both instances based on the policies embodied in the General Allotment Act. Although the allotment policy is long gone, its effects are not. The Supreme Court described the effects of allotment on the Yakima Reservation in a way applicable to many other reservations:

The reservation is located in the southeastern part of the State of Washington. Approximately 1.3 million acres of land are located within its boundaries. Of that land, roughly 80% is held in trust by the United States for the benefit of the Yakima Nation or individual members of the Tribe. The remaining 20% of the land is owned in fee by Indian or non-Indian owners. Most of the fee land is found in Toppenish, Wapato, and Harrah, the three incorporated towns located in the northeastern part of the reservation. The remaining fee land is scattered throughout the reservation in a "checkerboard" pattern.26 

Conflicts between tribal and state jurisdiction in the most contentious cases come out of fact patterns reflective of this checkerboard land-holding pattern. These include conflicts over competing tribal and county zoning schemes, dual taxation of private business, and state taxation of tribal land and regulation of water use. In all of these areas, the courts are called on to reconcile the conflicting implications of the abandoned allotment policy with current congressional policies protective of tribal authority. Congress has authority to reconcile the conflicting policies, but has not acted — thus leaving the Supreme Court as the final arbiter of tribal-state jurisdictional conflicts. The Brendale decision created great uncertainty that reigned until the Court's recent and frequent forays into the area.

The Senate Committee hearing focused on three recent cases in which the Supreme Court sharply limited the authority of Indian tribes to adjudicate cases involving non-Indians, or to regulate their conduct on non-Indian land within Indian country. It is no coincidence that the change in the Court's approach was accompanied by the retirement of Justices Brennan, Marshall and Blackmun, all of whom were known for their thoughtful treatment of Indian law issues. It must also be pointed out, however, that up until the decision in Oliphant, the Court rarely heard cases involving the exercise of tribal authority over non-Indians. The rapidly expanding governmental capacity of tribal governments and courts in the modern era led to increased conflict with non-Indians regulated by tribes or haled into tribal courts.

In Strate v. A-1 Contractors,27 the Court denied tribal-court jurisdiction to adjudicate a tort claim arising from injuries suffered in an automobile accident on an Indian reservation. The plaintiff was a non-Indian reservation resident married to a tribal member. The Supreme Court held that because the accident took place on state highway right of way, the Montana presumption against tribal jurisdiction applied. The right of way was said to be the equivalent of non-Indian land, although the tribe held the underlying interest and thus had granted the right of way. Applying the second exception announced in Montana, the Court held that tribal regulation of highway safety was not necessary to protect "the political integrity, the economic security, or the health or welfare of the tribe [or its members]."

Next, in Atkinson Trading Company v. Shirley,28 the Court ruled that the Navajo Nation lacks authority to impose a hotel occupancy tax on non-Indian guests of a hotel on non-Indian land within the Navajo reservation. The hotel is surrounded by tribal land and is served by the Nation's police, fire and emergency health services. The Nation argued that the availability of the services constituted consensual relations between the Nation and hotel guests. In addition, the hotel's presence was claimed to have a significant effect on the political integrity of the Nation because of the need to administer various services to patrons of the hotel. The Court ruled that neither Montana exception applied:

The consensual relationship must stem from "commercial dealing, contracts, leases, or other arrangements," [citation omitted] and a nonmember's actual or potential receipt of tribal police, fire, and medical services does not create the requisite connection.… [Second], whatever effect petitioner's operation of the Cameron Trading Post might have upon surrounding Navajo land, it does not endanger the Navajo Nation's political integrity.

The plurality opinion that rested on demographics and the "Indian character" of the area in Brendale appeared to support the Navajo position, but the Court brushed that argument aside without analysis.

Even more striking was the result in Nevada v. Hicks, 533 U.S. 353 (2001), which involved a tribal-court action against a state officer pursuant to 42 U.S.C. § 1983 and tribal tort law. A county law-enforcement officer sought a warrant from a state court judge to search a tribal member's home on a reservation for evidence of an alleged off-reservation crime. The state court issued a search warrant, but informed the officer that the warrant would not be valid on the reservation without endorsement by the tribal court. The county officer obtained tribal-court permission for a search, but exceeded the terms of the tribal warrant. A second search was conducted without tribal-court authorization, and the county officer damaged the tribal member's property. The 9th Circuit ruled that the tribal court had jurisdiction to hear the suit against the state officer. The Supreme Court reversed, holding that state officials may enforce state-issued search warrants against tribal members on tribal land when investigating alleged off-reservation crimes. Since tribes accordingly lacked jurisdiction to regulate the state official while engaged in his official duties, it followed, according to Justice Scalia, that the tribal court could not hear the action. This ruling prompted Judge William C. Canby Jr. to tell the Senate Committee on Indian Affairs that:

the recent decades have seen a significant change in the Supreme Court's view of the inherent power of Indian tribes. Many decisions, culminating in last term's Atkinson and Hicks, have substantially changed what has long been assumed to be the boundaries of tribal and state power in Indian country. The new restrictions on tribal power represent a judicial trend only; they have not been paralleled by any changes in congressional or executive policies concerning Indian affairs. None of the changes in the boundaries of state and tribal power affected by Supreme Court decisions are based on the Constitution; they accordingly are subject to modification at the will of Congress in the exercise of its power over Indian affairs.29 

Big Change in a Small Area?

The Supreme Court has made big changes in the law respecting the relative bounds of tribal and state jurisdiction, and it is unlikely to reverse course any time soon. The changes, however, have greatest effect on tribal control of non-Indians on non-Indian lands within reservations. The exercise of delegated federal authority by tribes may limit the import of the decisions as would the tribal acquisition of non-Indian land. Nevada v. Hicks is more troubling, but it may best be viewed as a limited aid to enforcement of off-reservation crimes. It is important, however, to note that the Court did not question other relatively recent rulings confirming tribal regulatory authority over non-Indians on tribal lands.

At the same time, tribes may be encouraged by the fact that the Court has remained faithful to important tribal property rights embodied in treaties and agreements with the United States. In the landmark case construing the fishing rights of most Indian tribes in Washington, Washington v. Washington Commercial Passenger Fishing Vessel, Ass'n.,30 the Court upheld Judge George Boldt's holding that the tribal rights extended to up to 50 percent of the harvestable surplus of fish passing usual and accustomed tribal fishing sites.31 The Court adhered to these principles in 1999 when it rejected the state of Minnesota's attempt to regulate off-reservation treaty fishing rights in Mille Lacs Band of Chippewa Indians v. Minnesota.32 The Court in 2001 also rejected states' rights arguments and upheld tribal ownership of the bed of Lake Coeur d'Alene.33 The current Supreme Court is likely to continue to be protective of tribal property rights guaranteed by treaty or agreement, although the hostility it has exhibited toward the exercise of tribal jurisdiction in some limited contexts makes prediction hazardous.

NOTES

1. Testimony of Professor David H. Getches, Hearing on Rulings of the United States Supreme Court Affecting Tribal Government Powers and Authorities, Sen. Comm. on Indian Affairs, 107th Cong. 2d Sess. (Feb. 27, 2002). The author of this article and the Honorable William C. Canby Jr. also testified at the hearing.

2. Johnson v. McIntosh, 21 U.S. 543 (1823) (tribal conveyances of land to private party in 1773 and 1775 not valid because not approved by the discovering Nation); Cherokee Nation v. Georgia 30 U.S. 1 (1831)(tribes are "domestic dependent Nations," not states or foreign nations and thus may not bring original actions in the Supreme Court under Art. III of the Constitution).

3. Worcester v. Georgia, 31 U.S. 515, 560-61 (1832).

4. McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 173 (1973)(internal citations omitted).

5. 1 Stat. 137. The act was temporary, but was continued in various forms and is now codified at 25 U.S.C. § 177.

6. Ch. 148, 4 Stat. 411-12.

7. See Washington v. Passenger Fishing Vessel Ass'n., 443 U.S. 658 (1979).

8. See United States v. Shoshone Tribe, 304 U.S. 111 (1938).

9. See Prucha, American Indian Treaties 173-74 (1994).

10. General Allotment Act of 1887 (Dawes Act), Ch. 119, 24 Stat. 388.

11. Institute for Government Research, The Problem of Indian Administration (1928); see also, F. Cohen, Handbook of Federal Indian Law 144 (1982 ed.).

12. See 25 U.S.C. §§ 461- 479.

13. See Stephen Cornell, The Return of the Native 123-124 (1988).

14. 25 U.S.C. § § 450-450n, § § 455-458e.

15. Examples include Indian liquor laws, 18 U.S.C. 1152; the Clean Air Act, 42 U.S.C. 7401-7642; the Clean Water Act, 33 U.S.C. 1251-1377. See Nance v. EPA, 645 F.2d 701 (9th Cir. 1981); City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996); and Montana v. EPA, 137 F.3d 1135 (9th Cir. 1998).

16. Williams v. Lee, 358 U.S. 217 (1959); see Wilkinson, American Indians, Time, and the Law (1987) (describing the "modern era" as commencing with the Court's decision in Williams v. Lee).

17. United States v. Wheeler, 435 U.S. 313, 323-24 (1978).

18. Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982); Kerr-McGee Corp. v. Navajo Nation, 471 U.S. 195, 198 (1985).

19. Id., citing Powers of Indian Tribes, 55 I.D. 14, 46 (Oct. 25, 1934); see also Felix S. Cohen, Handbook of Federal Indian Law 123 (1941).

20. 462 U.S. 324 (1983).

21. Id. at 334.

22. 435 U.S. 191(1978).

23. 450 U.S. 544 (1981).

24. 450 U.S. 544, 566. The rule also has no application if Congress has delegated authority to the tribe to regulate in an area. See note 18, supra.

25. 492 U.S. 408 (1989).

26. Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408, 415 (1989).

27. 520 U.S. 438 (1997).

28. 532 U.S. 645(2001).

29. See Note 1, supra.

30. 443 U.S. 658, 666 (1979).

31. Citing, Tulee v. Washington, 315 U.S. 681; Seufert Bros. Co. v. United States, 249 U.S. 194 (1919); and United States v. Winans, 198 U.S. 371 (1905).

32. 526 U.S. 172 (1999).

33. Idaho v. United States, 533 U.S. 262 (2001). The Court similarly ruled in favor of the Quechan Tribe's reserved water rights in the latest iteration of Arizona v. California, 530 U.S. 392 (2000).

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