SCOTUSBlog: DOJ urges denial of petition in tribal court dispute

As a general rule, Indian tribes don’t have authority over the conduct of non-members on non-Indian land, and hence they lack jurisdiction over disputes arising out of that conduct. However, there are two exceptions to that general rule, outlined in the Court’s 1981 decision in Montana v. United States. Under the exception at issue in this case, a tribe “may regulate, through taxation, licensing, or other means, the activities of non-members who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.”

After the tribal courts ruled in favor of the boy and his family, the store filed suit in federal district court in Mississippi to stop the tribal-court proceedings. But both the district court and the Fifth Circuit ruled against them. In its decision, the Fifth Circuit acknowledged a dissenting judge’s “assertion that ‘no circuit court has upheld Indian-court jurisdiction’ over a “tort claim against a nonmember defendant.” But in its view, tribal courts have jurisdiction over tort claims against defendants who are not members of the tribe as long as there is “a ‘logical nexus’ between the activity giving rise to the tort claim and ‘some consensual relationship between a business and the tribe or its members’” – a nexus that it found present in this case. After the court of appeals – over the dissent of five judges – denied rehearing en banc, the store filed a petition for certiorari; last fall the Court invited the Solicitor General to file a brief expressing the views of the United States, which it did last week.

The Solicitor General recommended that the Court deny the store’s petition. In his view, the Fifth Circuit’s holding that the tribal court has jurisdiction over the boy’s claims is correct. There is, he says, “no foundation” for the store’s argument that that there is a “categorical prohibition” of private tort claims in tribal court against defendants who are not members of the tribe.