1. Tribal Exercise of Jurisdiction over Nonmembers
1.1. Tribal Civil Regulatory Jurisdiction over Nonmembers
1.1.1. Williams v. Lee (1950)
1.1.1.1. A non-Indian merchant on the Navajo reservation sued a Navajo couple in state court to collect a debt. The Court unanimously held that state court jurisdiction was forbidden because it would infringe on the right of reservation Indians to make their own laws and be governed by them. In the 1950’s, tribes exercised both judicial and regulatory jurisdiction of everyone on their reservations. Here, SCOTUS recognizes this broad right to self-governance arising from inherent tribal sovereignty. No federal statute or treaty delegated jurisdiction over this cause of action to the tribe, nor did the nonmember overtly consent to such jurisdiction. The Court does note that Congress recognized such authority in the Treaty of 1868 and Congress could do away with such authority as well.
1.1.2. United States v. Mazurie (1975)
1.1.2.1. A federal statute provides alcohol can be sold in Indian country only if it is consistent with both state and tribal law. The Wind River Shoshone and Araphoe Tribes refused to renew the liquor license of a bar, and charges were brought against the non-Indian owners their continued operations. The Court held this was not an unconstitutional delegation of legislative powers. Restrictions on delegating legislative power are less stringent where the entity exercising delegated authority possesses independent authority to regulate the subject. The tribes have a "certain degree of independent authority over matters that affect the internal and social relations of tribal life," and the regulation of alcohol fell into this category.
1.1.3. Montana v. United States (1981)
1.1.3.1. Crow Tribal Council passed a resolution prohibiting hunting and fishing within the reservation by anyone who is not a member of the Tribe. MT continues to assert authority to regulate hunting and fishing by non-Indians within reservation. The Court held that tribal powers of self-government include the right to condition the entry of nonmembers permitted to hunt or fish on their lands on bag and creel limits and a fee. However, their power of self-government does not extend to regulating or prohibiting non-Indian hunting and fishing on land owned in fee simple by non-Indians because this is not sufficiently related to tribal self-government or internal relations. Again, this implicit divestiture of sovereignty arises from the supposedly inherent limitations of their dependent status. The Court does not foreclose "civil jurisdiction over non-Indians on their reservations, even on Indian fee lands." Two exemptions: Tribes 1) "may regulate through taxation, licensing, or other means activities of nonmembers who enter consensual relationship with tribes or members through commercial dealings, contracts, leases or other arrangements." and 2) "retain inherent power to exercise civil authority over conduct of non-Indians on fee lands within reservation when conduct threatens or has some direct effect on the political integrity, the economic security or the health or welfare of the tribe."
1.1.4. Merrion v. Jicarilla Apache Tribe (1982)
1.1.4.1. 21 lessees extract and produce oil and gas from the tribe's reservation lands. The lessees challenge an ordinance that imposes a severance tax on oil and natural gas severed, saved and removed from their land. The Court held the Tribe's authority to tax non-Indians doing business on the reservation "does not simply derive form the Tribe's power to exclude, but is an inherent power necessary to tribal self-government and territorial management." The federal government can take away this power and the Secretary must approve such a tax.
1.1.5. Brendale v. Confederated Tribes and Bands of the Yakima Indian Reservation (1989)
1.1.5.1. 20% of the land on the Yakima Reservation was held in fee by Indians and non-Indians. The reservation had a "closed" area (forested region) and an "open" area (where most Reservation) residents lived. Both the tribe and Yakima County asserted they could zone fee land on the reservation. The Court held that the tribe could not zone land owned by nonmembers in fee simple in the open area, but said they could zone in the closed area. Stevens and O'Connor were the controlling justices in this decision. They appeared to conclude that Congressional intent was determinative, although they also relied on the right to exclude.
1.1.6. Atkinson Trading Co. v. Shirley (2001)
1.1.6.1. The Court holds that Indian tribes lack the power to tax nonmember activity on non-Indian fee land within a reservation. The Navajo Nation's reservation was extended to include the plaintiff's land (which is now like land owned in fee simple). The Navajo Nation enacted a hotel occupancy tax that applied to his business. To be valid, the tax must fall under Montana's exceptions, and the Court said it doesn't. Rehnquist wants to make a rule that tribal power of self-government decreases dramatically when the case concerns land owned in fee simple. This seems to overrun some of the self-governing powers the Court granted in Brendale (authority over the "closed" fee land), restricting such power to the narrow circumstances of that case (its closed nature and that modifying the land would endanger the entire area).
1.1.7. Plains Commerce Bank v. Long Family Land and Cattle Co. (2008)
1.1.7.1. A majority tribal member business defaulted on their loan payment and the Bank seized their property and sold it to a other non-members. The tribal member's business sued the bank in tribal court. The Court held that tribe could not regulate the sale of fee simple land by a non-Indian seller (the bank) to a non-Indian purchaser (buyers after Longs had defaulted). In an outlandish opinion, the court says that Montana's 's two exceptions apply to activities of nonmembers or conduct of non-Indians on fee land. Somehow, the sale of fee land didn't count as activity or conduct and did not fall in the consensual relationship prong. The Court found such regulation "couldn't be justified by tribe's interest in protecting tribal relations and self-government." This is wild because the tribe can be concerned with how the land would be used and its potential effect on tribe and its members. The court also employed a heightened version of the direct effects standard, requiring that the conduct must "imperil the subsistence" of the tribal court. The minority's conception is that this case is about the tribal power's of self governance and such power should include "the power to hold nonmembers like the bank to a minimum standard of fairness when they voluntarily deal with tribal members." But the minority restricted such a conception to adjudicatory jurisdiction, not whether tribal members could repurchase the land.
1.2. Tribal Criminal Jurisdiction over Nonmembers
1.2.1. Oliphant v. Suquamish Indian Tribe (1978)
1.2.1.1. The tribe adopted a Code that extended its criminal jurisdiction over both Indians and non-Indians. Although the Indian Civil Rights Act of 1968 provided defendants with similar due process protections as federal and state proceedings, they are not the same. Ex: Non-Indians are excluded from tribal court juries (on the reservation in question 63% of the land is owned in fee simple by non-Indians). Non-Indian residents of the reservation were arrested during a celebration and charged with assaulting a tribal officer and resisting arrest. The Court held that the powers of tribal self-government did not include criminal jurisdiction over a non-Indian, unless affirmatively delegated by Congress. Supposedly, this is an inherent limitation arising from their quasi-sovereign status. The Violence Against Women Act, reauthorized in 2013, restored tribal criminal jurisdiction over non-Indians in the context of dating and domestic violence. The Act requires particular safeguards if the sentences lasts longer than a year. All tribes will have such jurisdiction beginning March 2015.
1.2.2. Duro v. Reina (1990)
1.2.2.1. The Court held that tribe's power to govern itself does not include criminalizing conduct by Indians who are not members of the tribe. Wheeler affirmed that the tribe's authority to prosecute its members is a facet of its "internal self-governance." (Why the double jeopardy clause did not apply). Kennedy says the same cannot be said for prosecutions concerning "external relations between the Tribe and outsiders." Kennedy says that the retained tribal power of self-governance is broader outside the criminal context, but this doesn't apply in the criminal context. Because the nonmember Indian is similarly unable to vote, hold office or serve no the jury in the Tribe's court, Kennedy draws a similarity to the non-Indian in Oliphant, and so the limitation on tribe's self-governing power in that context applies here. Kennedy specifically emphasizes how the nonmember Indian's citizenship in relation to the US interferes with the tribe's powers of self-government (to limit his personal liberty for a criminal offense). Their retained authority over members is acceptable to the Court because membership is voluntary and members can participate in tribal government. Tribes are not restricted by Constitutional guarantees, so Kennedy sees a heightened need to restrain their more expansive powers from intruding on those who have not consented to the tribe's governance. The Court acknowledges the severe limitation this might impose on tribes' ability to address minor enforcements, but the Court says either the States can help or Congress should address the issue.
1.2.3. United States v. Lara (2004)
1.2.3.1. The Court held Congress had the power to enact a federal statute that enlarged tribe's own power of self-government, so that it could exercise criminal jurisdiction over all Indians (essentially overruling Duro). Specifically, Congress relaxed the limitations on the inherent powers of tribal sovereignty, rather than delegated federal power for such jurisdiction. Thus, the exercise of criminal jurisdiction in the tribal court constituted the exercise of a separate sovereign, and the Double Jeopardy Clause didn't bar the federal government from also charging Lara. The court references this case "concerns a tribe's authority to control events that occur upon the tribe's own land."
1.3. Tribal Adjudicatory Jurisdiction over Nonmembers
1.3.1. National Farmers Union Insurance Co. v. Crow Tribe of Indians (1985)
1.3.1.1. A minor from the tribe was struck by a motorcycle in the school parking lot. The school is on State-owned land within the reservation. The minor's guardian sued the school district in tribal court for damages. The question of whether an Indian tribe's powers of self-government include the authority to compel a non-Indian property owner to submit to the civil jurisdiction of tribal court is a question "arising under" federal law (which means federal courts can determine under § 1331 whether a tribal court has exceeded its jurisdiction). However, petitioners must exhaust their remedies in the tribal courts. The existence and extent of tribal court's jurisdiction should first be considered by the tribal courts itself. "Congress is committed to a policy supporting tribal self-government and -determination." Having the tribal courts fist evaluate the bases of the challenge comports with this policy.
1.3.2. Iowa Mutual Insurance Co. v. LaPlanate (1987)
1.3.2.1. Member of the tribe filed suit against his non-Indian employer when his truck got into in accident on land owned by the non-Indian employer within the reservation. He also sued the insurance company. Though tribal court proceedings had not concluded, the insurance company sued in federal court that the injury wasn't covered by their insurance policy and tribe lacked jurisdiction. Marshall recognized "tribal courts play a vital role in tribal self-government," that federal policy of promoting self-government includes developing the tribal courts, and that their civil jurisdiction is more expansive than their criminal jurisdiction. The Court held that the exhaustion requirement in National Farmers Union applied to cases in which federal jurisdiction was established by diversity of citizenship to "give the tribal court a 'full opportunity to determine its own jurisdiction," such that tribal appellate courts must have reviewed the proceedings before it proceeds to federal court.
1.3.3. Strate v. A-1 Contractors (1991)
1.3.3.1. The Court held that the tribal powers of self-government do not permit tribal court's to exercise civil jurisdiction over claims against nonmembers arising from accidents on state highways authorized by the federal government on reservation land (the right of way is basically like alienated, non-Indian land). Essentially, a tribe's adjudicatory powers mirror their regulatory powers, under Montana. Ginsburg rejected that A-1 fell under the consent-based exemption of Montana, finding that the "Tribes were strangers to the accident." She finds that this falls "beyond what is necessary to protect tribal self-government or to control internal relations."
1.3.4. Nevada v. Hicks (2001)
1.3.4.1. The Court held that a tribe's power of self-government does not authorize tribal courts to entertain civil actions against state officials entering tribal land to execute a search warrant against a tribe member who allgedly violated state law off the reservation. This is because their adjudicatory capacity mirrors their legislative jurisdiction. The Court thus concluded that regulating state officials executing a warrant on tribal land is beyond what is necessary to protect tribal self-government or to control internal relations. Presumably, the exercise of federal enforcement of federal law within states does not impair the state's self-governance, and this logic, according to Scalia, extends to tribes. Scalia also holds that tribal courts are not courts of general jursidiction since their authority's limit mirrors that of their legislative power. This also detracts from tribal self-governance under Marshall's conception in Iowa Mutual. Finally, he asserts that exhaustion is not required when it is plain that "no federal grant provides for tribal governance of nonmebers' conduct on land covered by Montana's main rule." O'Connor's concurring opinion disputes that such a ruling conforms to the authority of tribes "to make their own laws and be ruled by them." Because the states, the tribes, and the federal governments share authority over tribal land, holding that tribe must accomodate the state's interest does not require that their governance be completely nullified.
2. Importance of tribal courts
2.1. Santa Clara Pueblo (1978)
2.1.1. Contextualizing Congress’s passage of ICRA as still respecting tribal self-government because it didn’t provide in wholesale fashion for the extension of constitutional requirements to tribal governments and instead only selectively incorporated and in some instances modified the safeguards of the Bill of Rights to fit the unique political, cultural, and economic needs of tribal governments. Also, by allowing the claims to be largely vindicable only in tribal courts, Congress respects tribal self-government prerogatives
2.2. Michigan v. Bay Mills (2014)
2.2.1. Noting that sovereign immunity gets to the heart of Indian self-government as well and that Congress must be abundantly clear whenever subjecting tribes to that type of legal exposure. This gets to the idea of the importance that is attributed to a tribe being able to maintain control over sovereign immunity and force disputes to go through its own courts
3. State taxation and regulation of on-reservation activities
3.1. McClanahan v. State Tax Comm'n of AZ (1973)
3.1.1. Allowing state to impose taxes on reservation members without their consent cannot be reconciled with tribal self-determination. After all, tribes are composed of individual Indians, who have a right to self-determination as individuals as well.
3.2. Bryan v. Itasca County (1976)
3.2.1. Subordinating tribal governments and reservation Indians to the full regulatory powers of the states (including taxation) could undermine or destroy tribal governments, turning tribes into little more than voluntary organizations.
3.3. Washington v. Confederated Tribes of the Colville Reservation (1980)
3.3.1. Tribes lack authority to preempt valid state sales and cigarette taxes on non-members. Tribal government interest in taxation to raise revenue for essential government programs is at its strongest when the revenues come from value generated on the reservation by activities involving the Tribes, and when the taxpayer is the recipient of tribal services.
3.4. White Mountain Apache Tribe v. Bracker (1980)
3.4.1. State taxation of outside company contracted to assist tribal timber operations is at odds with the federal policy of revitalizing tribal self-government by allowing tribe to assume control over their business and economic affairs.
3.5. New Mexico v. Mescalero Apache Tribe (1983)
3.5.1. Concurrent jurisdiction by the state over reservation hunting and fishing laws would threaten Congress’s objective in furthering tribal self-government and economic development. Project generates jobs on the reservation, funds essential tribal services. This is a scheme involving value generated on the reservation by activities involving the tribe.
3.6. California v. Cabazon Band of Mission Indians (1987)
3.6.1. Tribal interest in self-governance outweighs state interest in regulating gaming. Sole possible source of revenue and employment are gaming activities state seeks to regulate. Tribes are not merely reselling goods without applicable taxes, they have built facilities to provide recreational opportunities and services ancillary to the gaming.
3.7. Cotton Petroleum Corp v. New Mexico (1989)
3.7.1. While the tribe may tax production of oil and gas on its reservation, the state may continue to impose its own additional tax on the same production of oil and gas. Here, state provides services to non-member oil & gas extractors. Although the taxes are worth far more than the services provided, there is no proportionality requirement – what matters here is that the state has not completely abdicated involvement in activity on the reservation: for instance, state also regulates the spacing and integrity of extraction wells on the reservation.
4. Notions of "separateness" and emphasis on the internal social ties of the tribes and tribal governments as regulators of "social relations"
4.1. United States v. Kagama (1886)
4.1.1. "[The Indians] were, and always have been, as a semi-independent position when they preserved their tribal relations; not as states not as nations not as possessed of the full attributes of sovereignty, but as a 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.” Here, the Court specifically distinguishes tribes from "states" and "nations" and refers to them instead as a people, emphasizing that governance is of "social relations."
4.2. Morton v. Mancari (1974)
4.2.1. Talking about self-government in a federalism context, stating that one way to foster it would be if the BIA were to "increase the participation of the tirbla Indians in [its] operations." This links to ideas of tribal self-determination and their taking over of federal responsibilities. Additionally, the case resolves that the "Indian" classification is a political rather than racial one, again reenforcing the idea in previous cases of tribal people as having a distinct social identity with the need to govern their internal relations.
4.3. Santa Clara Pueblo (1978)
4.3.1. Emphasizing the crucial link between membership rules and tribal power over "social self definition." This case makes a central point of defending tribal self-government in this context, reaffirming that the main thrust of tribal government to the courts is over matters of "social relations."
4.4. United States v. Wheeler (1978)
4.4.1. “These limitation rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such power as would necessarily be lost by virtue of a tribe’s dependent status.” Thus, although a tribe's dependent status does indeed restrict its powers of governance, its ability to govern social relations remains its primary power undisturbed
5. Physical presence of the tribe and connection to lands
5.1. Solem v. Bartlett (1984)
5.1.1. This case offers a strong presumption in favor of Indian right to self-government (in the sense of territorial security through their reservation lands) by requiring a very high bar of proof and Congressional intent to diminish reservation boundaries. Here, the Court emphasizes the continued presence of the tribe and notes the location of the seat of tribal government. This reinforces the idea that tribal self-government is tied intrinsically to the reservations which they occupy—not wholly different from traditional notions of sovereignty that define typical sovereigns by their territory. But the important implication is that self-government itself can be hampered by changes to the occupation of the land or Congressional intent.
5.2. Hagan v. Utah (1984)
5.2.1. Specifically reiterates a point from Solem, that: “We have recognized that "[w]hen an area is populated by non-Indians with only a few surviving pockets Indian allot- ments, finding that the land remains Indian seriously the administration of state and local governments. Solem.” This reinforces a notion that active Indian occupation of lands is necessary for it to remain a reservation and thereby allow the tribe to exercise their self-governing authority. Subsequent developments may dissolve a tribe’s territory and therefore powers
5.3. Mashpee Tribe v. Town of Mashpee (1978)
5.3.1. The Mashpee Tribe sued to recover tribal lands allegedly alienated in violation of Indian Nonintercourse Act. The court instructed the jury that to find the Mashpee a tribe, they had to find that they were "a group of the same or similar race; that they had a territorial land base, and that they had a political organization or formal leadership of some sort." The jury answered that they were not a tribe when the Act was passed July 22, 1790, but was a tribe on March 31, 1834, the date on which the District of Mashpee was established. Although the court acknowledged different types of self-governance models up to 1842, the the Court said that the tribal identity had been abandoned by 1869. Thus, they were not a tribe for the purpose of the Act in 1976 and could not recover the lands.
5.4. City of Sherrill v. Oneida Indian Nation of New York (2005)
5.4.1. The Oneida Indian Nation purchased land within its original reservation and argued that because Oneida II affirmed that original transers of the land were invalid, the tribe's sovereign authority over these lands was restored. Thus, they argued they should be exempted from the property taxes the City of Sherill wished to impose on these lands. The Court held that the tribe could not revive sovereign immunity from taxes on the land, stating "[t]he Oneidas long ago relinquished the reins of government and cannot regain them through open market purchases from current titleholders." Thus, relinquishing the powers of self-governance historically over certain lands may prevent tribes from reestablishing the benefits of such self-governance on those lands (sovereign immunity), even when such lands are acquired in a "peaceful and lawful manner."
6. Relationship to the federal government
6.1. Worcester v. Georgia (1832)
6.1.1. The Court found that the "dependence" of the Cherokee on the United States did not erase their right to self government and their distinct national character. "America, ...was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing them- selves by their own laws... The Cherokees acknowledge themselves to be under the protection of the United States, and of no other power. Protection does not imply the destruction of the protected...The very fact of repeated treaties with them recognizes it; and the settled doctrine of the law of nations is, that a weaker power does not surrender its independence-its right to self government, by associating with a stronger, and taking its protection."
6.2. Cherokee Nation v. Georgia (1831)
6.2.1. The Cherokee Nation was arguing that the Supreme Court had jurisdiction because the Cherokee Nation was a foreign state. In evaluating this, the Court relied heavily on the fact that the Cherokee had become dependent on the federal government for certain things and that the status of "Indian Tribe" was enumerated in the Constitution separate and apart from foreign nations. In the end, the Court decided that it would not reach the issue of whether the Cherokee people had the right to maintain their own forms of self-government in their own territory.
6.3. Talton v. Mayes (1896)
6.3.1. Noting that “True it is that in many adjudications of this court the fact has been fully recognized that, although possessed of these of local self-government when exercising their tribal all such rights subject to the supreme legislative authority of the United States” / “But the existence of the right in congress to regulate the mannerin which the local powers of the Cherokee Nation shall be exercised does not render such local powers federal powers arising from and created by the constitution of the United States. It follows that, as the powers of local self-government enjoyed by the Cherokee Nation existed prior to the constitution”
6.4. South Dakota v. Yankton Sioux Tribe (1998)
6.4.1. The most recent diminishment case. Counties wanted to build a landfill in the borders of the Tribe's reservation. The tribe protested that there were environmental dangers and because the land was Indian country, federal environmental regulations applied. The Court did limited the scope of the savings clause in an alottment agreement that contained explicit language to relinquish unallotted lands within the reservation. The Court turned to the demographics of the area to support its conclusion: "Today, fewer than 10 percent of th 1858 reservation lands are in Indian hands, non-Indians constitute over two-thrids of the population within the 1858 boundaries, and several municipalitis inside thos boundaries have been incorproated under South Dakota law." This suggests that the reality of limited tribal self-governance can be used to support diminishment.