In a recent appellate case, the Fifth Circuit Court of Appeals followed well-established precedent when it affirmed a federal district court decision that recognized the Choctaw tribal court’s jurisdiction over a tribal member’s suit against a non-member of the tribe.[1] The non-member (a non-Indian corporation) had filed suit in federal district court seeking to enjoin or stop the Choctaw tribal court from exercising jurisdiction over the tribal member’s tort case. But the district court concluded that the tribal court could hear the case because the non-member had entered into business dealings with a tribal member on tribal land.

Tribal Sovereignty and Tribal Court Jurisdiction

So, why must the tribal court be given the opportunity to exercise jurisdiction over the tort case against the non-member? The answer begins with tribal sovereignty. Long ago, in the famous Marshall trilogy of cases, the U.S. Supreme Court recognized the indigenous Indian nations as sovereign body politics with inherent powers to govern themselves although that power is subject to federal power.[2] In other words, the recognized Indian tribes are sovereign nations, but Congress has the authority to limit or even eliminate that sovereignty. This principle of tribal sovereignty is fundamental to American Indian law. Although the concept has evolved and been eroded somewhat over time, tribal sovereignty is strongly defended by Indian tribes.

Based on the recognition of tribal sovereignty, two contrasting legal rules on tribal court jurisdiction have been established by the Supreme Court. The first rule states when tribal courts have exclusive jurisdiction (no federal or state court has jurisdiction). The second rule states when tribal courts have no jurisdiction. (Please note, however, that this discussion is limited to jurisdiction in civil case; tribal jurisdiction in criminal cases has been limited by Congress).

Contrasting Rules on Tribal Court Jurisdiction

In civil cases, the courts follow a general rule holding that tribal courts have exclusive jurisdiction if the claim (1) is asserted against an Indian, and (2) arose from an event or transaction that occurred in Indian country.[3] Thus, if two tribal members are involved in an auto collision while driving on tribal land, and one member sues the other, the tribal court will have jurisdiction because the defendant is an Indian and the collision occurred on tribal land.

In contrast to the general rule, the Supreme Court has also held that tribal courts do not have jurisdiction if (1) the defendant is a non-Indian, and (2) the event or transaction occurred on non-Indian-owned, fee-title land within a reservation.[4] Thus, if a tribal member and a non-Indian are involved in an auto collision while driving on privately owned land within the boundary of a reservation, the tribal court would not have jurisdiction. This second rule, known as the Montana rule, has two important exceptions that would result in tribal court jurisdiction (discussed in more detail below).

These two rules are fairly clear, but cases that fall in between these two rules are less clear, and that’s where the parties have room to argue. As a result, the federal courts were regularly asked to assert jurisdiction when the defendant was a non-Indian and the event occurred in Indian country.

Deference to Tribal Courts If Jurisdiction is in Question

The tribal court exhaustion doctrine was developed as a response to this jurisdictional gray area. The Supreme Court established this doctrine in 1985 when it held that federal courts cannot exercise jurisdiction—must allow a tribal court to rule on its own jurisdiction in the case—if (2) the defendant is a non-Indian, and (2) the claim arose on tribal land.[5] Nonetheless, the doctrine also states that non-Indian defendants may file suit in federal court after all proceedings in tribal court have been exhausted.[6]

Under this doctrine, tribal sovereignty is protected because the doctrine allows the tribal court to make its own determination regarding its jurisdiction in the case. But the rights of non-Indian defendants are also protected because the defendant can file a case in federal court after the tribal court hears the case. Thus, the tribal court exhaustion doctrine is a matter of deference to the tribal court.

The Montana Rule Exceptions and the Tribal Court Exhaustion Doctrine

The Montana rule has two important exceptions that provide tribal courts with an opportunity to exercise jurisdiction. As stated above, the Montana rule provides that tribal courts do not have jurisdiction if (1) the defendant is a non-Indian, and (2) the event or transaction occurred on land located within a reservation, but privately owned in fee title.[7]

The exceptions to the Montana rule provide that a tribal court will have jurisdiction if (1) the non-Indian entered contractual or other relationships with the tribe or tribal members; or (2) the claim asserted effects the political, economic, or welfare interests of the tribe.[8] Again, these exceptions protect tribal sovereignty, and the policy of tribal self-determination, by respecting the authority of the tribal court to determine its own jurisdiction.

Other Exceptions to the Tribal Court Exhaustion Doctrine

Two other exceptions to the tribal court exhaustion doctrine exist. Unlike the Montana exceptions, however, these exceptions give jurisdiction to the federal courts, rather than to tribal courts.

The first of these exceptions is federal preemption. When Congress enacts a law that regulates a field on a national basis, such as the Clean Water Act, the law preempts (or “trumps”) any state or local law that is inconsistent with the federal law. This preemption also applies to the tribes, and the federal courts can take jurisdiction without deferring to a tribal court.[9]

Finally, the exhaustion doctrine will not apply if the tribal court does not allow the non-Indian defendant an opportunity to challenge the tribal court’s jurisdiction.[10] Thus, a tribal court cannot simply declare its jurisdiction without considering the issue.


To some, the tribal court exhaustion doctrine may mean litigating in an unfamiliar court, but the doctrine is designed to respect and protect well-established principles of tribal sovereignty and is supported by the federal policy of tribal self-determination. From a legal perspective, the exhaustion doctrine and its deference to tribal courts has become a necessary aspect of managing the jurisdictional relationship between the courts of three sovereigns—tribal, federal, and state.

We hope that this discussion has been informative and helpful, but it should not be taken as legal advice or establishing an attorney-client relationship. For more information on the legal services offered by the Law Office of James D. Griffith, P.L.L.C., please call (480) 275-8738 or use the “Contact Us” page on our website.


[1] Dolgencorp, Inc. v. Mississippi Band of Choctaw Indians, No. 12-60668, 2013 U.S. App. LEXIS 20307 (5th Cir. Oct. 3, 2013).

[2] Johnson v. McIntosh, 21 U.S. 543, 573 (1823); Cherokee Nation v. Georgia, 30 U.S. 1, 16-17 (1831); Worcester v. Georgia, 31 U.S. 515, 559 (1832).

[3] Williams v. Lee, 358 U.S. 217 (1959). The term “Indian country” refers to Indian reservations, pueblos, dependent Indian communities, Indian allotments, and certain other areas that may be off-reservation but are close to and often largely populated by Indians. 18 U.S.C. § 1151.

[4] Montana v. United States, 450 U.S. 544 (1981). In these cases, the land involved is not held in trust by the federal government for the Indian tribe, but instead is owned privately and is subject to state law.

[5] Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 855-6 (1985).

[6] Id. 471 at 856-7; see also Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 19 (1987) (holding that a tribal court finding of tribal jurisdiction can be challenged in federal court and that the federal court will review the jurisdictional issue de novo).

[7] Montana, 450 U.S. at 564-66.

[8] Id.

[9] Nat’l Farmers Union, 471 U.S. at n.21.

[10] Id.; see also El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 484-488 (1999).




Earlier this month, Indian Country Today reported on a meeting between the United Nations Working Group on Business and Human Rights and the Navajo Nation Human Rights Commission (NNHRC). On April 27, the UN Working Group and NNHRC met to discuss the effects of two (non-Indian) business activities on the human rights of Navajos. First, the meeting addressed the use of treated wastewater to make snow at Arizona Snowbowl on the San Francisco Peaks. Second, the meeting examined the predatory auto sales and lending practices of Santander Consumer USA in light of language and cultural barriers.

The UN Working Group met with the NNHRC while on an official visit to the United States. After visiting other countries, the UN Working Group will prepare and publish a report, which is expected in June of 2014.

As part of an initial response to the meeting with NNHRC, the UN Working Group identified both governmental and business sector deficiencies with regard to the human rights of indigenous peoples. The initial response states:

While several federal initiatives and measures to protect the rights of indigenous peoples have been put in place in the United States in recent years, many stakeholders have indicated that more needs to be done to … protect the rights of indigenous peoples with regards to impacts of business activities . . . . We notice that when it comes to contexts such as those of the Native Americans, the weakness of protection afforded by the state against human rights violations is often regrettably reciprocated by commensurately poor understanding of the intent of corporate responsibility in respecting human rights. This results in significant challenges to turn appropriate human rights policies into effective practice.

In other words, the Working Group suggested that poor efforts by the federal government to protect the human rights of Native Americans are compounded by a poor understanding of the questionable (if not irresponsible) lending practices of some non-Indians businesses.

Although the federal government has some responsibility, could tribes also take steps to protect tribal members from predatory lending practices by non-Indians? Perhaps, yes. For example, a tribe could form a tribal corporation that offers auto and other loans to its members, thereby removing the non-Indian lender from the loan transaction. Existing tribal laws governing secured transactions, or adoption of the Model Tribal Secured Transactions Act (discussed here), could be used to enforce the loans while also protecting tribal members from non-Indian predatory lenders. Some means of regulating the tribal corporation (the lender) would be necessary, but that would be under the control of the tribe.

For more information on the legal services offered by the Law Office of James D. Griffith, P.L.L.C., please call (480) 275-8738 or use the “Contact Us” page on our website.



The Ninth Circuit Court of Appeals recently upheld a lower court decision that the Puyallup Tribe did not waive its sovereign immunity when it entered a contract with the State of Washington that included a mediation provision. The key distinction supporting the non-waiver of sovereign immunity was that the contract did not include other terms clearly indicating a waiver of sovereign immunity by the Tribe. A copy of the decision is available here. See also Miller v. Wright, 2012 U.S. App. LEXIS 23295 (9th Cir. 2012).

Miller v. Wright.

In Miller, the Puyallup Tribe entered into a cigarette tax contract (the “CTC”) with the State of Washington. Under the CTC, the Tribe agreed to collect a $30.00 fee on all cartons of cigarettes sold by the Tribe or any tribally chartered business and to purchase cigarettes for resale only from Washington wholesalers, tribal manufacturers, or approved out-of-state wholesalers. In turn, the State agreed that it would return the fees collected to the Tribe if the fees were used for essential government services, such as health services, law enforcement, and emergency services. The CTC also provided that responsibility for enforcing the $30.00 fee would be shared by both the State and the Tribe, and that any dispute would be submitted to mediation.

A man named Miller and a woman named Lanphere, both non-Indians and non-residents of the Puyallup reservation, purchased cartons of cigarettes at a tribally chartered business operating on reservation land. Miller and Lanphere objected to the fee and filed suit. They sought a refund and an injunction against future collection of the fee. After pursuing their action in the state courts of Washington and the Puyallup tribal court system, Miller and Lanphere filed an action in federal court, which also dismissed the case. The customers then appealed to the Ninth Circuit Court of Appeals, which affirmed the dismissal.

Tribal Sovereign Immunity Protects Indian Tribes in Many Cases.

In affirming the district court, the Ninth Circuit relied on the legal principle that “[t]ribal sovereign immunity protest Indian tribes from suit absent express authorization from Congress of clear waiver by the tribe.” Cook v. AVI Casino Enterprises, Inc., 548 F.3d 718, 725 (9th Cir. 2008). The Cook case also states that this rule extends to tribal commercial activities and to corporations chartered under tribal law. The court then analyzed the CTC between the State and the Tribe and concluded, first, that the provisions of the CTC were common used in cigarette tax agreement and, second, that none of the terms supported a clear waiver by the Tribe of its sovereign immunity.

Citing a U.S. Supreme Court decision, the Ninth Circuit clarified that “an arbitration clause [in an agreement with a Tribe] may establish a clear waiver of sovereign immunity.” C & L Enterprises, Inc. v. Citizens Band of Potawatomi Indian Tribe of Okla., 532 U.S. 411, 418-19 (2001) (emphasis added). In C & L Enterprises, however, the tribe that the contract would be governed Oklahoma law and that the Oklahoma Uniform Arbitration Act applies. C & L Enterprises contrasts with Demontiney v. U.S., 255 F.3d 801 (9th Cir. 2001). In Demontiney, the contract with the Indian tribe covered only “such mundane issues as indemnity, default remedies, interest rates, and [applicable] federal laws.” The contract even stated that the tribe retained its sovereign immunity, gave the tribal court exclusive jurisdiction, and established that tribal law governed the contract.

Based on the contrast between the C & L Enterprises and Demontiney cases, the Ninth Circuit in Miller v. Wright concluded that the CTC between the Puyallup Tribe and the State was “more akin” to Demontiney. In other words, the mere inclusion of a mediation provision was not enough to establish “a clear and explicit waiver of immunity” by the Tribe. In addition, the CTC did not include any of the other provisions found in the C & L Enterprises case that established state jurisdiction over the contract’s arbitration provisions. Thus, the Puyallup Tribe did not waive its sovereign immunity when it entered the CTC with the State of Washington.

Sovereign immunity can be a difficult and complicated area of Indian. If you would like further information regarding tribal sovereign immunity, or other Indian law matters, please visit the website for the Law Office of James D. Griffith, P.L.L.C. and use one of the contact options provided.

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