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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 -
Confederated Salish and Kootenai Tribes -

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)

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