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Excerpted From: Alex Tallchief Skibine, The Tribal Right to Exclude Others from Indian-owned Lands, 45 American Indian Law Review 261 (2021) (244 Footnotes) (Full Document)


Alex Skibine kdesuoIn May 2020, two Indian tribes in South Dakota--the Cheyenne River Sioux and Oglala Sioux Tribes--established health safety checkpoints on state and federal roads accessing the entrance to their reservations, invoking the dangers caused by COVID-19. The South Dakota Governor threatened immediate legal action, arguing that such roadblocks could only happen pursuant to an agreement with the State. Later that summer, the Blackfeet Nation in northern Montana refused to open its access road to tourists wanting to visit Glacier National Park. Unlike in South Dakota, the Montana Governor supported the Tribe's decision.

In South Dakota, the Cheyenne River Sioux Tribe argued that the tribal checkpoints were legal because the Tribe had a “treaty right to exclude” non-members from its reservation. Besides the treaty right to exclude, tribes can also claim that, as sovereign nations, they should have the inherent power to control their borders.

This Article does not focus on the COVID-19 issues facing the tribes. Others have already done this. Instead, it casts a wider net and examines, from a general perspective, the Tribes' power to exclude non-members from their reservations.

Indian tribes have been implicitly divested of the inherent sovereign power to control the activities of non-members on lands owned by non-members within the reservation. This principle, announced in the Supreme Court's 1981 decision in Montana v. United States, stands unless one of two exceptions applies. This doctrine is now known as the implicit divestiture doctrine. In Montana, the Crow Tribe argued that because the 1868 treaty reserved the land for the exclusive use of the Tribe, “[t]he treaty, therefore, obligated the United States to prohibit most non-Indians from residing on or passing through reservation lands used and occupied by the Tribe, and, thereby, arguably conferred upon the Tribe the authority to control fishing and hunting on those lands ....” The Court held, however, that once Congress allowed non-members to acquire land within the reservation, any tribal authority over non-Indian hunting and fishing could “only extend to land on which the Tribe exercises 'absolute and undisturbed use and occupation.”’ In addition, because neither of the two exceptions to Montana's general rule were available, the Crow Tribe could not control fishing activities by non-members on the Big Horn River within its reservation since the bed of the river was now owned by the State.

For twenty years, Montana's general rule was not applied to limit tribal jurisdiction over non-member activities taking place on tribal or Indian-owned land. However, in 2001, the Supreme Court unanimously extended the Montana principle to Indian-owned land in Nevada v. Hicks. Now, twenty years after Hicks was decided, an analysis of the cases shows that lower courts disagree on when to apply Montana to the assertion of tribal jurisdiction over non-members on Indian-owned lands. Although unanimous in its holding that the tribal court did not have jurisdiction over a lawsuit involving state law enforcement officials as defendants, the Hicks Court was divided on the reasoning for the holding. In effect, there were three opinions, consisting of three Justices each, that independently adopted different views of what role the status of the land played in determining whether the Tribe had jurisdiction.

Many scholars have addressed the issue of tribal jurisdiction over nonmembers comprehensively. Notably, Professor Judith Royster, in a perceptive 2015 article, covered some of the same ground this Article will be addressing. Like Professor Royster, this Article takes the position that Montana should not apply to lands in which tribes have retained the right to exclude. However, in concluding that “the Supreme Court's decision in Hicks is neither intelligible nor doctrinally helpful,” Professor Royster did not try to make sense of Justice Scalia's heavy reliance on the State's interests in law enforcement. This Article attempts this task.

This Article argues, first, that Justice Scalia's opinion in Hicks can be conceptualized as using the state interest in law enforcement to support the finding that the Tribe had lost the right to exclude state law enforcement officials in the case. In effect, Hicks could be read as requiring a two-step analysis to determine if an Indian tribe has retained jurisdiction over non-members on Indian-owned lands. The first step in this analysis asks courts to determine whether a tribe has retained its right to exclude. If the tribe has retained this right, this is the end of the inquiry and the tribe has jurisdiction. If the tribe has not retained this right, step two requires courts to apply the Montana framework in determining whether one or both of the exceptions to Montana's general rule apply to preserve tribal jurisdiction.

In addition, this Article analyzes whether there should be a difference between a tribal treaty right to exclude non-members from the reservations and the “inherent sovereign” right to exclude when it comes to deciding whether such a “right to exclude” has been abrogated. Professor Royster took the position that there should be no difference, stating that “[n]ot all Indian tribes have treaties with the federal government. When it comes to tribal jurisdiction over nonmembers on Indian lands based on treaty rights, where does that leave tribes without formal treaties? The answer, I submit, is in exactly the same place as tribes with treaties.” This Article takes the position that this may not necessarily be the case.

To explore these issues, Part I of this Article explains the Court's jurisprudence regarding tribal control over non-members. Part II analyzes the ongoing debate among the federal circuit courts of appeals concerning the interpretation of Hicks and concludes that the approach adopted by the Ninth Circuit is the more sound one. Finally, after exploring the differences, if any, between the tribes' sovereign right to exclude and their treaty right to exclude, Part III looks at the right to exclude beyond tribal jurisdiction over non-members; namely, this Article considers the role the right to exclude plays when it comes to determining whether federal laws of general applicability should apply to Indian tribes.

[. . .]

A treaty right to exclude is valuable to the tribes because for this right to be abrogated, a party must show clear evidence of congressional intent to that effect. The Supreme Court has, however, found such clear evidence when Congress has allowed Indian land to be transferred to non-members. In addition, most courts generally require treaty rights to have a certain level of specificity before acknowledging that they may give more rights than what tribes retained under their inherent sovereign powers. Finally, while tribes have been successful in defending their treaty rights before the Supreme Court, just about all of the Indian treaty cases involved off-reservation hunting, fishing, or gathering rights. Although one of the later cases involved a treaty right to avoid state fuel taxes on tribal trucks using state highways to reach the reservation, that case also involved off-reservation activities. Moreover, none of the cases involved using a treaty right to control the activities or non-tribal members as would be the case when invoking the treaty right to exclude.

Justice Scalia's opinion in Hicks is not a model of clarity. Rather, it lends itself to different interpretations. While each of the three interpretations can find support in the language used in Hicks, the most doctrinally sound interpretation among the circuits is that adopted by the Ninth Circuit. Under that version, before the Montana analysis can be applied to potentially divest Indian tribes of some jurisdiction over Indian-owned reservation lands, the tribal jurisdiction opponents must show a state interest important enough to neutralize the tribal right to exclude.

S.J Quinney Professor of Law, University of Utah S.J. Quinney College of Law. J.D. Northwestern University Pritzker School of Law

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