indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 202 630 8439
Kill The Tobacco Master Settlement Agreement
Advertise on Indianz.Com
Home > News > Headlines

printer friendly version
Appeals court to rehear tribal jurisdiction case
Wednesday, June 8, 2005

When the U.S. Supreme Court ruled last year that tribes have the inherent authority to prosecute all Indians regardless of membership, the decision was seen as a victory for tribal sovereignty.

But the US v. Lara decision hasn't necessarily been a major benefit for tribes. Several challenges are making their way through the court system that question whether tribes have criminal jurisdiction over all Indians.

The same doubts are being seen in civil cases. In August 2004, just a few months after the Lara decision, the 9th Circuit Court of Appeals ruled that a Montana tribe's court lacked jurisdiction to hear a lawsuit over a fatal vehicle accident that occurred on the reservation and where the parties involved are Indian or tribal-related.

"We consider an issue of increasing importance to the federal courts and to non-tribal members who live or work in or around Native American reservations: When does an Indian tribe's civil jurisdiction extend to non-tribal members?" a three-judge panel wrote in its opening paragraph.

The panel concluded that the court of the Confederated Salish and Kootenai Tribes lacked jurisdiction to hear the lawsuit. The judges said the accident didn't involve a "consensual" relationship between the parties and didn't affect the "political integrity, the economic security, or the health or welfare of the tribe."

But the case presented such an important issue that the 9th Circuit has decided to consider it all over again. A rehearing before an en banc panel of 11 judges will be held on June 23 in San Francisco.

At the heart of the debate is a Supreme Court case from 1981. In Montana v. U.S., the justices ruled that tribes are presumed to lack jurisdiction over civil activities involving non-tribal members whether the activities occur on Indian or non-Indian owned land within the reservation.

The case, however, sets outs two exceptions. Under the first, the tribe can assert civil jurisdiction if there is a consensual relationship with the tribe. A contract, for example, could form the basis of the relationship.

Under the second, the tribe can assert jurisdiction if the activity "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe," the Montana ruling states.

Despite the promise laid out by the exceptions, tribal lawyers say they are incredibly hard to meet. The federal courts, for example, have repeatedly ruled that tribal courts cannot hear lawsuits over accidents involving a non-Indian railroad that runs through tribal land.

Sue Williams, an attorney in private practice in New Mexico, is hoping to change that view in cases she is representing on behalf of tribes. She said that the courts need to be shown that tribal health and safety is at risk under the second Montana exception.

"All these accidents can be happening, the railroad could be barreling through the reservation and the tribe has no ability to protect the health and safety on Indian reservations," Williams said at the Federal Bar Associations annual Indian law conference in April. "There's something wrong with that picture."

Bryant Rogers, another tribal attorney from New Mexico, agreed that satisfying the first Montana exception regarding consensual relationships is extremely difficult. "The 9th Circuit in particular has come up with the most cramped notion," he said at the conference. "You have to show an extraordinarily close relationship," he noted.

Both exceptions were considered in the Salish and Kootenai case. The dispute stems from a fatal one-car accident involving students enrolled at the Salish Kootenai College on the Flathead Reservation. The accident occurred while the students were participating in a college course and driving a vehicle owned by the college.

These factors, however, weren't enough to convince the 9th Circuit panel that the tribe has jurisdiction. The judges ruled that the enrollment alone isn't enough to create a consensual relationship under the first Montana exception.

"If SKC wants its students to consent to tribal court jurisdiction on any dispute with it, it may ask them to so agree in connection with the enrollment process, and with a fair disclosure," the panel wrote.

The issue is significant because the college attracts a large number of non-Indians and non-tribal members. The driver of the vehicle is a member of the Umatilla Tribes from Oregon.

As for the second Montana exception, the panel rejected the tribe's argument that it has an interest in promoting public safety and higher education on the reservation. The court also said the lawsuit involving SKC, a tribal entity, isn't enough to affect the tribe's political integrity.

The panel said the "tribe's interest in the political, economic, health, or welfare effects of a particular action is not enough, by itself, to meet this exception. Otherwise, the exception would swallow the rule."

"You have a community college student who was injured in a class project while driving a vehicle," Rogers noted, yet the court ruled there was "not a sufficient nexus" between the parties and the tribe to warrant tribal jurisdiction.

Regardless of the way the en banc panel rules, the case will have an affect on a large number of tribes. The 9th Circuit covers more than 100 tribes in nine Western states and more than 220 Alaska Natives tribes in Alaska.

And if either party appeals, the Supreme Court could take up the case, a move that worries tribes and their advocates. "The court has changed the rules on us," Rogers said at the conference. "They're going to keep changing the rules on us."

9th Circuit Panel Decision:
Smith v. Salish Kootenai College (August 6, 2004)

Relevant Links:
Salish Kootenai College - http://www.skc.edu
Confederated Salish and Kootenai Tribes - http://www.cskt.org

Related Stories:
Appeals court rules against tribal jurisdiction (08/09)
Tribal authority over all Indians still unsettled question (06/23)
Supreme Court affirms tribal powers over all Indians (04/20)

Copyright 2000-2005 Indianz.Com
More headlines...
Stay Connected:

Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Native Sun News: Northern Cheyenne family celebrates history (3/2)
Doug George-Kanentiio: Native snipers among world's deadliest (3/2)
Omaha Tribe welcomes denial of rehearing in boundary lawsuit (3/2)
Supreme Court won't hear Stockbridge-Munsee Band land claim (3/2)
Indian tobacco company rebuffed in another dispute with state (3/2)
Jodi Gillette: Administration making progress in Indian Country (3/2)
Kevin Abourezk: Leaders of Winnebago Tribe face recall attempt (3/2)
Aaron Schutt: Alaska Native role in FCC's auction benefits public (3/2)
Steven Newcomb: NMAI should help expose Indian law's bigotry (3/2)
Dina Gilio-Whitaker: Native sovereignty in a race-based society (3/2)
David Wilkins: Tap into the knowledge and power of our nations (3/2)
Opinion: Native women won't feel safe without action in Canada (3/2)
Indian families in South Dakota battle to keep children at home (3/2)
Marijuana presented as another opportunity for Indian Country (3/2)
Lac Vieux Desert Band relies on revenue from lending business (3/2)
Leader of Kiowa Tribe challenges BIA's intervention in election (3/2)
Cherokee Nation mourns loss of respected journalist John Shurr (3/2)
Pechanga Band to reclaim ancestors and artifacts from military (3/2)
Travel: Ancient culture continues on Hopi Reservation in Arizona (3/2)
Saginaw Chippewa Tribe banishes two women after drug arrest (3/2)
Joseph Webster: Tribes assert sovereignty over Class II gaming (3/2)
Tohono O'odham Nation spends $200M on first phase of casino (3/2)
New Mexico lawmakers advance new Class III gaming compact (3/2)
Fort Sill Apache Tribe in court for gaming compact in New Mexico (3/2)
MGM on track to complete $1.2B casino near US Capitol next year (3/2)
Wrapup from National Congress of American Indians DC meeting (2/27)
Native Sun News: Rapid City leader calls for tax on alcohol sales (2/27)
Mark Trahant: Beautiful trend emerges with power of Native vote (2/27)
Ivan Star: Lakota traditional history tells the true untold stories (2/27)
Audio: House Appropriations Committee hearing on BIA budget (2/27)
Senate Indian Affairs Committee to hold hearing on irrigation bill (2/27)
National Indian Gaming Commission choice gets another hearing (2/27)
Kevin Abourezk: Omaha language advocate passes on at age 58 (2/27)
Gyasi Ross: Yawna Allen shares her Native and African ancestry (2/27)
Frank Hopper: Alaska Native Brotherhood was about resistance (2/27)
Stanley Heller: Don't forget the Sand Creek Massacre in Colorado (2/27)
Cherokee Nation chief faces at least four challengers in election (2/27)
BIA and DOJ seek to mediate Cayuga Nation leadership dispute (2/27)
Non-Indians guilty for hunting incidents on Montana reservation (2/27)
Man from Te-Moak Tribe pleads guilty to voluntary manslaughter (2/27)
Administrator for Alaska tribe cuts her position out of the budget (2/27)
Opinion: Find common ground on Indian mascots in Connecticut (2/27)
Hannahville Indian Community starts $8M casino expansion work (2/27)
Wilton Rancheria still waiting for BIA movement on casino project (2/27)
Lytton Band paid $4.6M to use land as parking for Class II facility (2/27)
Opinion: Menominee Nation might turn to tokers instead of poker (2/27)
Opinion: Poarch Creeks come with slot machines and marijuana (2/27)
Updates from National Congress of American Indians meet in DC (2/26)
Native Sun News: Rosebud Sioux Tribe leader sidelined by council (2/26)
James Giago Davies: Native activism must embrace all relations (2/26)
Donna Ennis: Obama budget supports tribal self-determination (2/26)
Rich Winter: Let's keep Lakota Nation Invitational in Rapid City (2/26)
Oglala Sioux Tribe wants Lakota Nation Invitational out of Rapid (2/26)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.