Civil Regulatory Jurisdiction, States

State Regulation on Fee Land or Trust land

Regulating Non Member:

Law

Infringement Test. Williams v. Lee.
Substantive and licensing regulation in alcohol sales permitted b/c tribe has never had sovereignty over this. Rice v Rehner.
Not if federal law is so expansive as to preempt further state law in the subject area. Field preemption with low threshold. Warran Trading Post.
But balance state interests against fed/Ind interests, consider value generated and apply the legal incidence test. Colville, Mescalero Apache.
May also consider whether tribal regulation is so expansive that add’l state reg’s would conflict. New Mexico v. Mescalero Apache

Tax

Membership, not Indian status, is what matters. Colville.
Infringement test. Williams v. Lee. Depriving tribe of revenue does not violate this test. Colville.
Warran, Colville, Mescalero preemption & balancing tests
Court more likely to allow taxation of cigarettes, or something just bought and resold. Colville.
Less likely to allow taxation of natural resources, (Bracker) or enjoyment derived from Rez (Mescalero Apache), even when state provides minimal services.
Bracker express Williams concern, general interest in raising revenues is not enough to justify state taxation.
If not preempted, may tax if state is providing services that allow the business to operate, even if those services are of substantially less value than the tax revenue. Cotton Petroleum.

Regulating Member Indian:

Law: No. Infringement test. Williams v. Lee

Tax: No income or property taxes. Preempted. McClanahan, Bryan. Probably can’t tax purchases, because Indians not benefitting from the tax revenues (Colville reasoning sort of…).

PL 280 State:

Law: Cabazon test for prohibitive v regulatory law. States have no PL 280 authority to enact regulatory laws, but states may still do so under other tests.

Tax: state cannot broaden tax powers just because PL 280 needs funding. Above rules apply. Bryan.

Civil Regulatory Jurisdiction, Tribes

Tribal Regulation on Fee Land

Regulating Non Members

Law/Tax:

Tribes have some power to exercise jx over people on Reservation, regardless of explicit consent through membership. Mazurie. (could deny liquor license, tribe had independent regulatory authority)
BUT Montana: no regulatory jx over nonmembers on fee land, unless consensual (commercial) relationship or welfare/security threat.
- Shirley imposes nexus requirement on consensual relationship exception
- Brendale sets high bar for Montana welfare/security exception.

Regulating Members

Not sure how this would work. Could tribe impose tax on Navajo guests in Shirley? I would assume no…

Tribal Regulation on Trust Land

Regulating Non Members

Law:

Tribes have some power to exercise jx over people on Reservation, regardless of explicit consent through membership. Mazurie.

Tax:

Yes. Under power to exclude and inherent sovereignty. Even when long standing K exists. Merrion.
Dual taxation permitted. Colville.

Regulating Members

Yes. Basic premise of sovereignty, to create and be governed by own laws. Williams.

Civil Adjudicatory Jurisdiction

Tribe Member (P)

Non member (P)

Tribe member (D)

State:

PL 280 = yes
Not PL 280 = depends on interpretation of Williams, but probably. (If Williams applies to ALL Indian defendants, then the answer is no…although it isn’t clear this is the holding. There’s other case law saying that state courts have to be open to tribal plaintiffs like anyone else. In practice, it’s rare for tribe member to sue another tribe member in state court for Reservation transactions.

Tribe: Yes

Federal:

Diversity case: yes, following exhaustion. Iowa Mutual, National Farmers.
If a federal cause of action, like sec. 1983 suit, might be able to go straight to federal court because Hicks might mean tribal court cannot hear it.

State:

PL 280: yes
Non PL 280: no. Williams v. Lee.

Tribal: yes

Federal: Same as for tribe member suing tribe member

Non member (D)

State: yes, court suggests in Strate that state court is appropriate when defendant is a nonmember.

Tribe:

Fee land: need Montana exception. Strate.
Tribal land: unclear. If you’re a state official going on Rez that’s been approved by tribe, then you cannot be sued in tribal court…exceptional circumstance. Hicks. But beyond that, we really don’t know what the Supreme Court thinks about suits for transactions arising on tribal land. 9th circuit said you can be sued if your conduct occurred on tribal land.

Federal:

Yes, there’s an automatic federal question based on the extent of the tribal court’s jx. National Farmers.
Fee land: If it’s so obvious that tribe does not have jx, then parties don’t have to exhaust tribal remedies. Strate.
Trust land: you probably need to exhaust remedies. (But Hicks says some exceptional circumstances are so clear that they don’t need to exhaust remedies…)

State: yes

Tribe: same as member suing non member…doesn’t really matter who the plaintiff is. But court might be less likely to find Montana exceptions, especially when nonmembers have little connection to the tribe. (Theoretically, with Scalia’s comment that we should treat this as subject matter jx, tribe would lack jx even if both nonmembers consented to jx…but this is a crazy result)

Federal: same as member suing nonmember

Criminal Jurisdiction

Non Indian Victim

State: Yes. McBratney. True even if crime is victimless.

Tribe: No. Oliphant (except VAWA)

Federal:

No jx under MCA, MCA only applies to Indian Perp.
No jx under ICCA. McBratney

State: No, unless PL 280 state.

Tribe: Yes. (but with Duro, not over an Indian non member. Congress fixed this)

Federal:

Yes, if enumerated...

#11474 - Jurisdiction Chart - Federal Indian Law

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