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THURSDAY, AUGUST 15, 2002

Tribes have jurisdiction over roads maintained by the Bureau of Indian Affairs, a divided federal appeals court ruled on Wednesday.

In a 2-1 decision, the 9th Circuit Court of Appeals said a Montana tribal court can hear a dispute over an accident that occurred on a BIA road. The road is located within the boundaries of the Northern Cheyenne Reservation.

"We conclude that BIA roads constitute tribal roads," wrote Circuit Judge James R. Browning, "and that the BIA right-of-way did not extinguish the tribe's gatekeeping rights to the extent necessary to bar tribal court jurisdiction."

The action reverses a federal court decision that would have limited the tribe's authority. U.S. District Judge Jack D. Shanstrom had ruled the BIA road was not tribal land.

But the panel refused to allow the Northern Cheyenne Tribe to intervene in the case. "[T]he tribe cannot show a protectable interest in the property that is the subject of the action," Browning wrote.

The case arises from a May 1998 accident in which Kale Means, a minor and a member of the Northern Cheyenne Tribe, was injured when his car hit a horse that wandered onto a BIA road. Patti Means, guardian for Kale Means, subsequently filed a civil lawsuit in tribal court against the horse's owner, alleging negligence.

Arthur L. McDonald challenged the suit in federal court, arguing that the tribe lacked jurisdiction. McDonald owns land in fee on the reservation but is a member of the Oglala Lakota Sioux Tribe.

The primary issue, according to the appeals court, was whether the BIA road was Indian or non-Indian owned. Based on Supreme Court precedents, tribes do not have civil lawsuit jurisdiction for actions on non-Indian fee land.

"In granting the Route 5 right-of-way, the Northern Cheyenne Tribe relinquished some, but not all, of the sticks that form the landowner's traditional bundle of gatekeeping rights," Browning wrote.

Circuit Judge J. Clifford Wallace disagreed with the majority's analysis. To him, the issue was whether the tribe has jurisdiction over non-members at all.

"The majority establishes a presumption in favor of tribal civil jurisdiction over nonmembers in cases involving tribal land," he wrote. "This startling statement turns the Court’s long-standing approach to tribal inherent authority on its head."

The dissenting views makes the case a potential for an appeal to the Supreme Court. Wallace argued that prior case law prohibits tribal jurisdiction over the acts of non-members even on tribal land.

Cases in the 9th Circuit affect tribes in the states of California, Oregon, Washington, Arizona, Montana, Idaho, Nevada and Alaska.

Get the Decision:
MCDONALD v. MEANS, No. 99-36166/00-35002 (9th Cir. August 14, 2002)

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