Montana v. United States
Encyclopedia
Montana v. United States, 450 U.S.
544 (1981) is a Supreme Court case which addressed the Crow Nation
’s ability to regulate hunting and fishing on tribal lands by a non-tribal member. The case considered several important issues concerning tribes' treaty rights and sovereign governing authority on Indian reservations. The original dispute was over access to fishing on the Big Horn River within the exterior boundaries of the Crow Reservation, Montana. The Court would eventually rule that the “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.”
A prior case, Oliphant v. Suquamish Indian Tribe
, played a significant role in the decision. The lower courts in that case had found that "preserving law and order within tribal lands was an indispensable attribute that had been neither surrendered through treaty nor removed by Congress under its plenary power." Justice Anthony Kennedy
, then sitting on the Ninth Circuit Court of Appeals, had dissented from that finding, arguing that "Congress
did not intend for tribes to exercise criminal jurisdiction over non-Indians." Although Oliphant
addressed tribal authority regarding criminal matters, the case was invoked in Montana v. United States since it concerns tribal authority—criminal, civil, and regulatory—regarding non-members.
The Supreme Court in Montana v. United States set a precedent which resulted in a wave of litigation challenging not only the exercise of tribal court authority over non-members, but the very existence of that authority. The U.S. Supreme Court determined that the Crow Nation could regulate hunting
and fishing
on tribal lands, and had jurisdiction over “conduct which threatens or has some direct effect” upon the tribe’s "political integrity, economic security, and health or welfare," but a seemingly simple trial turned into a famous court case, with ongoing repercussions.
In April 1975, Battin overruled the decision he made 8 months earlier. He now decided that the riverbed in question was owned by the state. He asserted that the tribe did not have the “exclusive right to fish” since the first Fort Laramie in 1851 only referred to fishing as a “mere privilege” and the1868 Fort Laramie Treaty “does not contain any reference to fishing.” Battin further concluded that the tribe lacked sufficient sovereignty to regulate non-members from fishing and hunting on the reservation. “The blunt fact…is that an Indian tribe is sovereign to the extent the United States permits it to be -- neither more nor less.”
Days after this decision, the tribe approved a special ordinance and resolution in response to Battin’s ruling and reasserted their authority to regulate non-members' sporting activities on tribal land, empowering tribal game wardens and police to arrest non-members going on the reservation to boat, fish, trap, or hunt. They also appealed Battin’s decision to the Ninth Circuit Court of Appeals. Chairman Patrick Stands Over Bull, Thomas Lynaugh (attorney), and eighteen other delegates went to D.C. to "argue their case" to the government. The tribe felt that Battin’s ruling undermined their sovereignty as well as threatened future coal production and water rights.
In December 1976, the Ninth Circuit Court of Appeals reversed Judge Battin’s decision. Judge Anthony Kennedy
held that the riverbed fell within the boundaries of the reservation and was therefore owned by the U.S. and the Crow Tribe. Kennedy also made reference to the Fort Laramie treaties, stating that the establishment of the reservation was to provide a permanent homeland for the people and that they had every right to the resources contained within it. Kennedy applied traditional canons of Indian law by stating that the negotiations of the two treaties had no other meaning to the natives other than the fact that the “government recognized all lands within the metes and bounds of the reservation were theirs.”
In July 1978, on remand, Battin once again ruled in favor of the state, concluding that the U.S. did not reserve the river bed for the tribe, that the “Crow tribe was not indigenous historically to either Montana or Wyoming,” that they were a nomadic people with origins in Canada. Despite testimony from Joe Medicine Crow and Henry Old Coyote supporting the fact that Crows routinely fished and often supplemented their diet with fish, Battin concluded that “fishing was not central to the Crow diet.” Battin then addressed the issue of whether or not the State has power to regulate hunting and fishing by non-members within reservation limits. Again, Battin ruled in favor of the state, holding that Montana did have authority to regulate non-members on the river and on all non-Indian fee land within the reservation. Battin also concluded that the state had “concurrent jurisdiction” with the U.S. to regulate these activities on tribal land if the activities violated state law. Battin addressed tribal rights by stating that, while they retain the right to give permission to non-members to hunt and fish on tribal lands, tribes do not have the power to regulate non-members unless specifically granted by an “act of congress,” referring to Oliphant v. Suquamish
.
In June 1979, the Ninth Circuit Court of Appeals unanimously overturned Battin’s ruling, holding that the river (bed and banks) was held by the United States in trust for the Crow tribe. Addressing the emergent regulatory issues, they ruled that the tribal resolution 74-05 was invalid only when it came to “resident non-members” on fee land that they personally owned, and that the resolution was valid when it came to regulating “non-resident non-member owners of land and resident non-members on any other territory” within the reservation. The tribe could regulate both members and non-members as long as the non-members were not subjected to criminal sanctions and the process was carried out in a non-discriminatory fashion, consistent with conservation principles. Both parties were dissatisfied with the decision and both petitioned for a rehearing, but both of these petitions were denied.
In April 1980, the U.S. Supreme Court granted the state of Montana’s petition for certiorari. In the ensuing briefings, Montana’s attorneys argued that lands under navigable waters on federal land were supposed to be held in trust by the U.S. for the State. States are considered to have “equal footing” in this regard. They argued that the tribe held no authority to regulate non-members on non-Indian lands within the reservation and that the “allotment legislation” voided any treaty-based authority given to the tribe. They supported these claims with the Oliphant
case, which denied tribes inherent sovereign authority to exercise criminal jurisdiction over non-Indians.
The U.S. and Crow attorneys contended that the U.S. appropriated the land in question prior to statehood for the benefit of the Crow tribe and that the tribe did not expressly cede the rights in question in any treaty. They urged that the Allotment
acts did not in any way change or “dilute” treaty rights.
Arguments were heard on December 3, 1980 and the decision announced March 24, 1981.
Originally, a federal district court had ruled that the state of Montana
, not the Crow Tribe, owned and had the ability to regulate the land in dispute. The Ninth District Court of Appeals
would reverse the decision made in the lower courts, and establish that the Crow tribe had the authority to regulate hunting and fishing, since they did occur on tribal lands. In its historic 1981 decision, the Supreme Court would reverse the decision made by the court of appeals, and return authority over the land to the state of Montana. Although the Supreme Court ruled against the Crow Tribe, important guidelines were established regarding Native American
sovereignty, and the power which tribes had over non-members.
The court would eventually rule “A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. A tribe may also retain inherent power to exercise civil authority
over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” No consensual relationships existed between the Crow tribe and the non-member sportsman. The tribe had also not said that the outdoor use of their lands by non-members would “imperil the subsistence or welfare of the tribe.” As a result of these conditions, the Crow tribe was not entitled to regulate
the activities by non-members on their fee lands. The tribes "retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members." However, this case was dealing with non-tribal members who were not endangering the tribe. Due to the court’s statement that the tribal court could regulate conduct that “threatens or has some direct effect on the political integrity , the economic security, or the health or welfare of the tribe”, the tribe did not have the authority to impose fees and taxes on the non-Indian hunting and fishing use of tribal lands. However, this court ruling does not limit tribal sovereignty
to the exterior boundaries of the reservation.
’s dissent, with Brennan and Marshall
joining, addresses the issue of the canons of construction regarding treaties. “Only two years ago, this Court reaffirmed that the terms of a treaty between the United States and an Indian tribe must be construed ‘in the sense in which they would naturally be understood by the Indians.’ As in any case involving the construction of a treaty, it is necessary at the outset to determine what the parties intended. ...With respect to an Indian treaty, the Court has said that ‘the United States, as the party with the presumptively superior negotiating skills and superior knowledge of the language in which the treaty is recorded, has a responsibility to avoid taking advantage of the other side.’ ...In holding today that the bed of the Big Horn River passed to the State of Montana upon its admission to the Union, the Court disregards this settled rule of statutory construction. Because I believe that the United States intended, and the Crow Nation
understood, that the bed of the Big Horn was to belong to the Crow Indians, I dissent from so much of the Court's opinion as hold otherwise. As in any case involving the construction of a treaty, it is necessary at the outset to determine what the parties intended. ...the Crow were assured in 1867 that they would receive ‘a tract of your country as a home for yourselves and children forever, upon which your great Father [sic] will not permit the white man to trespass.’ "
Rebutting the 'equal footing' argument, the dissent part II states "...it defies common sense to suggest that the Crow Indians would have so understood the terms of the Fort Laramie Treaties. In negotiating the 1851 treaty, the United States repeatedly referred to the territories at issue as 'your country,' as 'your land,' and as 'your territory.' ...It is hardly credible that the Crow Indians who heard this declaration would have understood that the United States meant to retain the ownership of the riverbed that ran through the very heart of the land the United States promised to set aside for the Indians and their children 'forever.' Indeed, Chief Blackfoot, when addressed by Commissioner Taylor, responded: 'The Crows used to own all this Country including all the rivers of the West.' Id., at 88. (Emphasis added.) The conclusion is inescapable that the Crow Indians understood that they retained the ownership of at least those rivers within the metes and bounds of the reservation [450 U.S. 544, 579] granted them. This understanding could only have been strengthened by the reference in the 1868 treaty to the mid-channel of the Yellowstone River as part of the boundary of the reservation; the most likely interpretation that the Crow could have placed on that reference is that half the Yellowstone belonged to them, and it is likely that they accordingly deduced that all of the rivers within the boundary of the reservation belonged to them.
In fact, any other conclusion would lead to absurd results."
The dissent thus stands firmly against the majority's "silent nullification" of the treaties in its "equal footing" argument that there was a "strong presumption" that the federal government held lands under navigable waters in trust for the states rather than the tribes.
Montana v. United States is a critical case because, in part, it left behind a "cauldron of confusion" regarding jurisdiction. The opinion states that tribes "inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements." In addition, tribes retain "inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."
Since the court decision in 1981, it has been used many times as an important precedent. Shortly after the Montana decision was made, the Court used it in both National Farmers Union Ins. Co. v. Crow Tribe (1985) and Iowa Mutual Ins. Co. v. LaPlante (1987). Both cases were related to tribal power, and the Court relied on Montana to rule that “tribal inherent powers do not extend beyond what is necessary to protect tribal self-government
or to control internal relations.” These decisions dictate that a nonmember of the tribe can enter "federal court to challenge tribal court jurisdiction over them, usually after they've first 'exhausted' tribal court remedies." The Montana decision was used again in the Atkinson Trading Company v. Shirley (2001) to strike down a tax imposed on non-tribal members for operating a hotel on lands owned by the Navajo Reservation
. The ruling has created problems for the courts since it was made. In the 1997 court case Strate v. A-1 Contractors, the Montana ruling was used to determine that tribal courts did not have the authority to listen to a case that involved an accident involving two non-tribal members on the reservation. The Montana case outlined the principles on tribal sovereignty, especially over issues relating to non-tribal members. The ruling made in the Montana-Strate-Atkinson is derived from the Oliphant ruling
, and shows the inherent tribal civil jurisdictional powers.
The Montana ruling continues to be applied. In 2005 an on-duty police officer died in a single car accident when the officer's Ford Expedition
rolled over on a tribally maintained road. It was a single car accident, and the car allegedly rolled over due to a product default. The Ford Motor Company
entered federal court looking to challenge the issue of tribal jurisdiction in this case. The Montana ruling was applied, and neither of its two exceptions were found to apply, because there were no consensual relations between the tribe and the Ford Motor Company, and the security of the nation was not at stake. This is just one example of how the Montana ruling is still being applied in 21st century court cases.
was created by the ruling. The case established that state authority ceased to exist when the "political integrity, the economic security, or the health or welfare of the tribe" was at risk.
enterprises because they have direct connections to tribal members. The second important part of the Montana ruling is the ability of the tribes to regulate all activity related to tribal interests. As long as the interests of the tribe are at stake, the Montana ruling can be applied. The Montana ruling clearly outlines that a tribe can regulate the activities on non-tribal members if the outside party has entered in a consensual agreement with the tribe, or the safety and security of the tribe are at stake. These two conditions have been used many times by the courts since the ruling was made in 1981, and will continue to be used in nearly every case which involves the jurisdiction of the tribes over non-tribal members.
Montana v. United States at findlaw, justia, oyez, oyez audio
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
544 (1981) is a Supreme Court case which addressed the Crow Nation
Crow Nation
The Crow, also called the Absaroka or Apsáalooke, are a Siouan people of Native Americans who historically lived in the Yellowstone River valley, which extends from present-day Wyoming, through Montana and into North Dakota. They now live on a reservation south of Billings, Montana and in several...
’s ability to regulate hunting and fishing on tribal lands by a non-tribal member. The case considered several important issues concerning tribes' treaty rights and sovereign governing authority on Indian reservations. The original dispute was over access to fishing on the Big Horn River within the exterior boundaries of the Crow Reservation, Montana. The Court would eventually rule that the “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.”
A prior case, Oliphant v. Suquamish Indian Tribe
Oliphant v. Suquamish Indian Tribe
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 is a United States Supreme Court case regarding the criminal jurisdiction of Tribal courts over non-Indians. The case was decided on March 6, 1978, with a 6-2 majority. The court opinion was written by William Rehnquist; a dissenting opinion was...
, played a significant role in the decision. The lower courts in that case had found that "preserving law and order within tribal lands was an indispensable attribute that had been neither surrendered through treaty nor removed by Congress under its plenary power." Justice Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
, then sitting on the Ninth Circuit Court of Appeals, had dissented from that finding, arguing that "Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
did not intend for tribes to exercise criminal jurisdiction over non-Indians." Although Oliphant
Oliphant v. Suquamish Indian Tribe
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 is a United States Supreme Court case regarding the criminal jurisdiction of Tribal courts over non-Indians. The case was decided on March 6, 1978, with a 6-2 majority. The court opinion was written by William Rehnquist; a dissenting opinion was...
addressed tribal authority regarding criminal matters, the case was invoked in Montana v. United States since it concerns tribal authority—criminal, civil, and regulatory—regarding non-members.
The Supreme Court in Montana v. United States set a precedent which resulted in a wave of litigation challenging not only the exercise of tribal court authority over non-members, but the very existence of that authority. The U.S. Supreme Court determined that the Crow Nation could regulate hunting
Hunting
Hunting is the practice of pursuing any living thing, usually wildlife, for food, recreation, or trade. In present-day use, the term refers to lawful hunting, as distinguished from poaching, which is the killing, trapping or capture of the hunted species contrary to applicable law...
and fishing
Fishing
Fishing is the activity of trying to catch wild fish. Fish are normally caught in the wild. Techniques for catching fish include hand gathering, spearing, netting, angling and trapping....
on tribal lands, and had jurisdiction over “conduct which threatens or has some direct effect” upon the tribe’s "political integrity, economic security, and health or welfare," but a seemingly simple trial turned into a famous court case, with ongoing repercussions.
Background
In October 1973, the Crow Tribal Council enacted Resolution Tribal Edict No. 74-05, to restrict fishing in response to increasing food prices and tribal enrollment, coupled with decreasing supplies of fish and game on the reservation. In May 1974, James Junior Finch, a non-tribal member, went fishing, in open defiance of the tribal resolution. Charges were filed against Finch in district court. In September, District Court Judge James Battin ruled (for the moment) that the Big Horn riverbed was held in trust by the United States for the tribe. This ruling was consistent with one he made three years earlier, declaring in 1971 that, since the U.S. did not expressly withhold the riverbed in any of the Fort Laramie treaties, it gave the tribes “absolute right of use over the area described.” In that ruling Battin made note that the Crow reservation was superimposed on traditional Crow territory.In April 1975, Battin overruled the decision he made 8 months earlier. He now decided that the riverbed in question was owned by the state. He asserted that the tribe did not have the “exclusive right to fish” since the first Fort Laramie in 1851 only referred to fishing as a “mere privilege” and the1868 Fort Laramie Treaty “does not contain any reference to fishing.” Battin further concluded that the tribe lacked sufficient sovereignty to regulate non-members from fishing and hunting on the reservation. “The blunt fact…is that an Indian tribe is sovereign to the extent the United States permits it to be -- neither more nor less.”
Days after this decision, the tribe approved a special ordinance and resolution in response to Battin’s ruling and reasserted their authority to regulate non-members' sporting activities on tribal land, empowering tribal game wardens and police to arrest non-members going on the reservation to boat, fish, trap, or hunt. They also appealed Battin’s decision to the Ninth Circuit Court of Appeals. Chairman Patrick Stands Over Bull, Thomas Lynaugh (attorney), and eighteen other delegates went to D.C. to "argue their case" to the government. The tribe felt that Battin’s ruling undermined their sovereignty as well as threatened future coal production and water rights.
In December 1976, the Ninth Circuit Court of Appeals reversed Judge Battin’s decision. Judge Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
held that the riverbed fell within the boundaries of the reservation and was therefore owned by the U.S. and the Crow Tribe. Kennedy also made reference to the Fort Laramie treaties, stating that the establishment of the reservation was to provide a permanent homeland for the people and that they had every right to the resources contained within it. Kennedy applied traditional canons of Indian law by stating that the negotiations of the two treaties had no other meaning to the natives other than the fact that the “government recognized all lands within the metes and bounds of the reservation were theirs.”
In July 1978, on remand, Battin once again ruled in favor of the state, concluding that the U.S. did not reserve the river bed for the tribe, that the “Crow tribe was not indigenous historically to either Montana or Wyoming,” that they were a nomadic people with origins in Canada. Despite testimony from Joe Medicine Crow and Henry Old Coyote supporting the fact that Crows routinely fished and often supplemented their diet with fish, Battin concluded that “fishing was not central to the Crow diet.” Battin then addressed the issue of whether or not the State has power to regulate hunting and fishing by non-members within reservation limits. Again, Battin ruled in favor of the state, holding that Montana did have authority to regulate non-members on the river and on all non-Indian fee land within the reservation. Battin also concluded that the state had “concurrent jurisdiction” with the U.S. to regulate these activities on tribal land if the activities violated state law. Battin addressed tribal rights by stating that, while they retain the right to give permission to non-members to hunt and fish on tribal lands, tribes do not have the power to regulate non-members unless specifically granted by an “act of congress,” referring to Oliphant v. Suquamish
Oliphant v. Suquamish Indian Tribe
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 is a United States Supreme Court case regarding the criminal jurisdiction of Tribal courts over non-Indians. The case was decided on March 6, 1978, with a 6-2 majority. The court opinion was written by William Rehnquist; a dissenting opinion was...
.
In June 1979, the Ninth Circuit Court of Appeals unanimously overturned Battin’s ruling, holding that the river (bed and banks) was held by the United States in trust for the Crow tribe. Addressing the emergent regulatory issues, they ruled that the tribal resolution 74-05 was invalid only when it came to “resident non-members” on fee land that they personally owned, and that the resolution was valid when it came to regulating “non-resident non-member owners of land and resident non-members on any other territory” within the reservation. The tribe could regulate both members and non-members as long as the non-members were not subjected to criminal sanctions and the process was carried out in a non-discriminatory fashion, consistent with conservation principles. Both parties were dissatisfied with the decision and both petitioned for a rehearing, but both of these petitions were denied.
In April 1980, the U.S. Supreme Court granted the state of Montana’s petition for certiorari. In the ensuing briefings, Montana’s attorneys argued that lands under navigable waters on federal land were supposed to be held in trust by the U.S. for the State. States are considered to have “equal footing” in this regard. They argued that the tribe held no authority to regulate non-members on non-Indian lands within the reservation and that the “allotment legislation” voided any treaty-based authority given to the tribe. They supported these claims with the Oliphant
Oliphant v. Suquamish Indian Tribe
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 is a United States Supreme Court case regarding the criminal jurisdiction of Tribal courts over non-Indians. The case was decided on March 6, 1978, with a 6-2 majority. The court opinion was written by William Rehnquist; a dissenting opinion was...
case, which denied tribes inherent sovereign authority to exercise criminal jurisdiction over non-Indians.
The U.S. and Crow attorneys contended that the U.S. appropriated the land in question prior to statehood for the benefit of the Crow tribe and that the tribe did not expressly cede the rights in question in any treaty. They urged that the Allotment
Dawes Act
The Dawes Act, adopted by Congress in 1887, authorized the President of the United States to survey Indian tribal land and divide the land into allotments for individual Indians. The Act was named for its sponsor, Senator Henry L. Dawes of Massachusetts. The Dawes Act was amended in 1891 and again...
acts did not in any way change or “dilute” treaty rights.
Opinion of the Court
Originally, a federal district court had ruled that the state of Montana
Montana
Montana is a state in the Western United States. The western third of Montana contains numerous mountain ranges. Smaller, "island ranges" are found in the central third of the state, for a total of 77 named ranges of the Rocky Mountains. This geographical fact is reflected in the state's name,...
, not the Crow Tribe, owned and had the ability to regulate the land in dispute. The Ninth District Court of Appeals
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
would reverse the decision made in the lower courts, and establish that the Crow tribe had the authority to regulate hunting and fishing, since they did occur on tribal lands. In its historic 1981 decision, the Supreme Court would reverse the decision made by the court of appeals, and return authority over the land to the state of Montana. Although the Supreme Court ruled against the Crow Tribe, important guidelines were established regarding Native American
Indigenous peoples of the Americas
The indigenous peoples of the Americas are the pre-Columbian inhabitants of North and South America, their descendants and other ethnic groups who are identified with those peoples. Indigenous peoples are known in Canada as Aboriginal peoples, and in the United States as Native Americans...
sovereignty, and the power which tribes had over non-members.
The court would eventually rule “A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. A tribe may also retain inherent power to exercise civil authority
Civil authority
Civil authority is that apparatus of the state other than its military units that enforces law and order. It is also used to distinguish between religious authority and secular authority...
over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” No consensual relationships existed between the Crow tribe and the non-member sportsman. The tribe had also not said that the outdoor use of their lands by non-members would “imperil the subsistence or welfare of the tribe.” As a result of these conditions, the Crow tribe was not entitled to regulate
Regulation
Regulation is administrative legislation that constitutes or constrains rights and allocates responsibilities. It can be distinguished from primary legislation on the one hand and judge-made law on the other...
the activities by non-members on their fee lands. The tribes "retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members." However, this case was dealing with non-tribal members who were not endangering the tribe. Due to the court’s statement that the tribal court could regulate conduct that “threatens or has some direct effect on the political integrity , the economic security, or the health or welfare of the tribe”, the tribe did not have the authority to impose fees and taxes on the non-Indian hunting and fishing use of tribal lands. However, this court ruling does not limit tribal sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
to the exterior boundaries of the reservation.
Indian reservation
An American Indian reservation is an area of land managed by a Native American tribe under the United States Department of the Interior's Bureau of Indian Affairs...
Dissent
BlackmunHarry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
’s dissent, with Brennan and Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
joining, addresses the issue of the canons of construction regarding treaties. “Only two years ago, this Court reaffirmed that the terms of a treaty between the United States and an Indian tribe must be construed ‘in the sense in which they would naturally be understood by the Indians.’ As in any case involving the construction of a treaty, it is necessary at the outset to determine what the parties intended. ...With respect to an Indian treaty, the Court has said that ‘the United States, as the party with the presumptively superior negotiating skills and superior knowledge of the language in which the treaty is recorded, has a responsibility to avoid taking advantage of the other side.’ ...In holding today that the bed of the Big Horn River passed to the State of Montana upon its admission to the Union, the Court disregards this settled rule of statutory construction. Because I believe that the United States intended, and the Crow Nation
Crow Nation
The Crow, also called the Absaroka or Apsáalooke, are a Siouan people of Native Americans who historically lived in the Yellowstone River valley, which extends from present-day Wyoming, through Montana and into North Dakota. They now live on a reservation south of Billings, Montana and in several...
understood, that the bed of the Big Horn was to belong to the Crow Indians, I dissent from so much of the Court's opinion as hold otherwise. As in any case involving the construction of a treaty, it is necessary at the outset to determine what the parties intended. ...the Crow were assured in 1867 that they would receive ‘a tract of your country as a home for yourselves and children forever, upon which your great Father [sic] will not permit the white man to trespass.’ "
Rebutting the 'equal footing' argument, the dissent part II states "...it defies common sense to suggest that the Crow Indians would have so understood the terms of the Fort Laramie Treaties. In negotiating the 1851 treaty, the United States repeatedly referred to the territories at issue as 'your country,' as 'your land,' and as 'your territory.' ...It is hardly credible that the Crow Indians who heard this declaration would have understood that the United States meant to retain the ownership of the riverbed that ran through the very heart of the land the United States promised to set aside for the Indians and their children 'forever.' Indeed, Chief Blackfoot, when addressed by Commissioner Taylor, responded: 'The Crows used to own all this Country including all the rivers of the West.' Id., at 88. (Emphasis added.) The conclusion is inescapable that the Crow Indians understood that they retained the ownership of at least those rivers within the metes and bounds of the reservation [450 U.S. 544, 579] granted them. This understanding could only have been strengthened by the reference in the 1868 treaty to the mid-channel of the Yellowstone River as part of the boundary of the reservation; the most likely interpretation that the Crow could have placed on that reference is that half the Yellowstone belonged to them, and it is likely that they accordingly deduced that all of the rivers within the boundary of the reservation belonged to them.
In fact, any other conclusion would lead to absurd results."
The dissent thus stands firmly against the majority's "silent nullification" of the treaties in its "equal footing" argument that there was a "strong presumption" that the federal government held lands under navigable waters in trust for the states rather than the tribes.
Effects
Since the court decision in 1981, it has been used many times as an important precedent. Shortly after the Montana decision was made, the Court used it in both National Farmers Union Ins. Co. v. Crow Tribe (1985) and Iowa Mutual Ins. Co. v. LaPlante (1987). Both cases were related to tribal power, and the Court relied on Montana to rule that “tribal inherent powers do not extend beyond what is necessary to protect tribal self-government
Self-governance
Self-governance is an abstract concept that refers to several scales of organization.It may refer to personal conduct or family units but more commonly refers to larger scale activities, i.e., professions, industry bodies, religions and political units , up to and including autonomous regions and...
or to control internal relations.” These decisions dictate that a nonmember of the tribe can enter "federal court to challenge tribal court jurisdiction over them, usually after they've first 'exhausted' tribal court remedies." The Montana decision was used again in the Atkinson Trading Company v. Shirley (2001) to strike down a tax imposed on non-tribal members for operating a hotel on lands owned by the Navajo Reservation
Navajo Nation
The Navajo Nation is a semi-autonomous Native American-governed territory covering , occupying all of northeastern Arizona, the southeastern portion of Utah, and northwestern New Mexico...
. The ruling has created problems for the courts since it was made. In the 1997 court case Strate v. A-1 Contractors, the Montana ruling was used to determine that tribal courts did not have the authority to listen to a case that involved an accident involving two non-tribal members on the reservation. The Montana case outlined the principles on tribal sovereignty, especially over issues relating to non-tribal members. The ruling made in the Montana-Strate-Atkinson is derived from the Oliphant ruling
Oliphant v. Suquamish Indian Tribe
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 is a United States Supreme Court case regarding the criminal jurisdiction of Tribal courts over non-Indians. The case was decided on March 6, 1978, with a 6-2 majority. The court opinion was written by William Rehnquist; a dissenting opinion was...
, and shows the inherent tribal civil jurisdictional powers.
The Montana ruling continues to be applied. In 2005 an on-duty police officer died in a single car accident when the officer's Ford Expedition
Ford Expedition
The Ford Expedition is a full-size SUV built by the Ford Motor Company. Introduced in 1997 as a replacement to the Ford Bronco, it was previously slotted between the smaller Ford Explorer and the larger Ford Excursion, but as of the 2005 model year, it is Ford's largest and last truck-based,...
rolled over on a tribally maintained road. It was a single car accident, and the car allegedly rolled over due to a product default. The Ford Motor Company
Ford Motor Company
Ford Motor Company is an American multinational automaker based in Dearborn, Michigan, a suburb of Detroit. The automaker was founded by Henry Ford and incorporated on June 16, 1903. In addition to the Ford and Lincoln brands, Ford also owns a small stake in Mazda in Japan and Aston Martin in the UK...
entered federal court looking to challenge the issue of tribal jurisdiction in this case. The Montana ruling was applied, and neither of its two exceptions were found to apply, because there were no consensual relations between the tribe and the Ford Motor Company, and the security of the nation was not at stake. This is just one example of how the Montana ruling is still being applied in 21st century court cases.
Controversy
A political conflictPolitics
Politics is a process by which groups of people make collective decisions. The term is generally applied to the art or science of running governmental or state affairs, including behavior within civil governments, but also applies to institutions, fields, and special interest groups such as the...
was created by the ruling. The case established that state authority ceased to exist when the "political integrity, the economic security, or the health or welfare of the tribe" was at risk.
Legacy
One of the most vital parts of the Montana ruling is the ability for the tribes to regulate consensual activity. This permits the regulation of many major non-Indian operations that operate on tribal lands. Consequently, the tribes have the ability to regulate bingoBingo (card game)
Bingo is a card game named by analogy to the game bingo. The game is played with a bridge deck of 52 cards. The dealer gives each player X cards, which are held in the hand or placed face-down in front of the player. The dealer places Y cards face down in the center of the table...
enterprises because they have direct connections to tribal members. The second important part of the Montana ruling is the ability of the tribes to regulate all activity related to tribal interests. As long as the interests of the tribe are at stake, the Montana ruling can be applied. The Montana ruling clearly outlines that a tribe can regulate the activities on non-tribal members if the outside party has entered in a consensual agreement with the tribe, or the safety and security of the tribe are at stake. These two conditions have been used many times by the courts since the ruling was made in 1981, and will continue to be used in nearly every case which involves the jurisdiction of the tribes over non-tribal members.
See also
Montana v. United States at findlaw, justia, oyez, oyez audio
Further Reference
- Deloria, Jr., Vine, ed. American Indian Policy in the Twentieth Century. Norman: University of Oklahoma Press. 1985.
- Deloria, Jr., Vine and Clifford M Lytle. American Indians, American Justice. Austin: University of Texas Press. 1983.
- Duthu, N. Bruce. American Indians and the Law. New York, NY: Penguin Group, 2008.
- Goldberg, Carole, et al. Indian Law Stories. NY: Foundation Press, 2011
- Johansen, Bruce E. Enduring legacies: Native American Treaties and Contemporary Controversies. Praeger 2004
- Johansen, Bruce E. The Encyclopedia of Native American Legal Tradition. Greenwood, 1998.
- Wilkins, David E. American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice. Austin: University of Texas Press. 1997.
- Wilkins, David E. and Heidi Kiiwetinepinesiik Stark. American Indian Politics and the American Judicial System. Rowman @ Littlefield Publishers, Inc. 2011.