Ninth Circuit Issues Decision on Tribal Court Jurisdiction Over Non-Members

March 14, 2006 Patty A. Ferguson-Bohnee Indian Law

A case summary of Smith v. Salish Kootenai College, published in The ARROW, the newsletter of the Indian Law Section of the State Bar of Arizona

(In the Ninth Circuit, an en banc panel consists of eleven judges, instead of a three-judge panel. En banc comes from French and means “on the bench.”)In an en banc decision issued January 10, 2006, the U.S. Ninth Circuit Court of Appeals held that “a nonmember [plaintiff] who knowingly enters tribal court for the purpose of filing suit against a tribal member, has by the act of filing his claims, entered into a ‘consensual relationship’ with the tribe within the meaning” of Montana v. United States, 450 U.S. 544 (1981). Smith v. Salish Kootenai College, No. 03-35306, slip op. at 126-127 (9th Cir. January 10, 2006).

The Court clarified that a tribal court has jurisdiction under Montana to adjudicate a tort dispute brought by a nonmember against a tribal entity or tribal member when the cause of action bears some direct connection to tribal lands.

The parties include Smith, a member of the Umatilla Tribe of Oregon, and a tribal college – Salish Kootenai College (SKC) – owned and operated by the Confederated Salish and Kootenai Tribes of the Flathead Reservation in Montana. Smith was enrolled as a student at SKC, which is located on the Flathead Reservation. As part of his coursework, Smith was driving a dump truck owned by SKC on a federal highway within the exterior boundaries of the reservation. Two members of the Salish and Kootenai Tribes, also students in the course, were passengers in the dump truck.[1] Due to an alleged mechanical failure, a rollover accident occurred killing one tribal member and seriously injuring the other.

The injured passenger and the estate of the deceased passenger brought claims against SKC and Smith in tribal court. In one action Smith filed a cross-claim against SKC, and in the other action SKC filed a cross-claim against Smith. All actions were settled before trial except for Smith’s cross-claim against SKC. Smith proceeded with his action in tribal court, and the tribal court realigned Smith as the plaintiff and SKC as the defendant. A jury returned a verdict in favor of SKC. Smith was dissatisfied with the result and sought relief claiming that the tribal court lacked jurisdiction.

To evaluate whether a tribe has civil jurisdiction, a court will look at the party status of the nonmember and whether the events giving rise to the cause of action bear “some direct connection to tribal lands.” Slip op. at 112, 118. Smith brought negligence and strict liability claims against SKC for failure to maintain the dump truck and spoliation of evidence notes taken by a SKC employee. Even though the rollover accident occurred on a federal highway, the Court found that the cause of action for the claims brought by Smith arose out of activities conducted on or controlled by a tribal entity on tribal lands. The Court found that maintaining the vehicle implicated SKC’s actions on the college campus, not on the federal highway. Since SKC had control over the notes taken by a SKC employee, this claim also arose out of activities occurring on the reservation.

Since this case involved a nonmember bringing an action against a tribal entity, the Court evaluated whether the tribal court had sufficient interest in exercising subject matter jurisdiction under the framework set forth in Montana. Tribes have inherent power to protect tribal self-government and to control internal relations, including the adjudication of disputes among tribal members.[2]Montana, 450 U.S. at 564. The Montana court set forth two exceptions to the general lack of civil jurisdiction over nonmembers. The first exception provides that “[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.” 565. The Court noted that this list is illustrative rather than exclusive, and held that Smith consented to tribal jurisdiction by choosing to bring a case in tribal court against a tribal entity. Slip op. at 121, n.4.[3]

The Court relied on Williams v. Lee, 358 U.S. 217, 222-223 (1959) and Nevada v. Hicks, 533 U.S. 353 (2001) to determine that “civil tribal jurisdiction [cannot] turn on finely-wrought distinctions between contract and tort.” Slip op. at 121. The Court found that the “consensual relationship” test under Montana resembles the due process clause analysis for personal jurisdiction. The Court engaged in this analogy in an attempt to demonstrate that a jurisdictional analysis balancing state and tribal interests is more flexible than the strict standards provided to the federal courts in determining subject matter jurisdiction as evidenced by the Supreme Court’s determination that “consensual relationships” can create tribal court jurisdiction. Slip op. 123-124. Smith willingly filed suit in tribal court against SKC. Because he freely consented to tribal court jurisdiction by filing his claim, Smith cannot subsequently claim that he did not consent to tribal court jurisdiction.

The second Montana exception provides that a tribe retains inherent sovereignty over “conduct that threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Montana, 450 U.S. at 566. Because the Court found that the first exception applies, it did not determine whether the second exception also applies but suggested the strong possibility of the second exception’s application. The Court stated that denying tribal jurisdiction “would have a direct effect on the welfare and economic security of the tribe insofar as it would seriously limit the tribe’s ability to regulate the conduct of its own members through tort law.” Slip op. at 120.

In upholding tribal court jurisdiction, the Ninth Circuit has clarified that when a nonmember chooses to bring an action in tribal court against a tribal defendant, he cannot later successfully claim that the tribal court lacked jurisdiction.[4]

The decision also clarifies that the first Montana exception is not limited to commercial dealings and recognizes the importance of tribal court adjudication of tort actions as a basic measure of self-government.

[1] For analysis purposes, members of the Salish and Kootenai Tribes are considered “tribal members” while Smith is considered a “nonmember” because he is not an enrolled member of the Salish and Kootenai Tribes.

[2] Tribal courts also possess any additional authority delegated by Congress; no such authority is implicated in this case.

[3] Although SKC argued that the consensual relationship resulted from Smith’s enrollment at SKC, the Court found that “any contractual relationship Smith had with SKC as a result of his student status is too remote from his cause of action to serve as the basis for the Tribes’ civil jurisdiction.” Slip op. at 119.

[4] Because SKC’s articles of incorporation provide only a limited waiver of sovereign immunity in tribal court, eliminating tribal court jurisdiction would leave Smith without a forum in which to bring legal action.