Civil cases, tribal land a complex mix

Steven Boos Enlarge photo

Steven Boos

While working in Mexican Hat, Utah, I started seeing clients who were having their income-tax refunds seized based on judgments entered against them by the state courts of Utah in favor of a non-Native American plaintiff. This was odd, because all my clients lived on the Navajo Reservation (in the “Utah Strip”). They had almost no contacts in Utah outside the reservation, and the acts on which the judgments were based all occurred within the reservation.

Civil jurisdiction in Indian Country is complex, but, in these cases, the Utah courts clearly had no jurisdiction. In 1959, the U.S. Supreme Court decided the case of Paul and Lorena Williams, Navajos who lived on the Navajo Reservation and who owed money to a non-Native American operating a trading post within the reservation. The trading post owner sued the Williamses in the Superior Court of Apache County, Ariz. The Arizona court allowed him to auction sheep owned by the Williamses to satisfy the debt. In Williams vs. Lee, the U.S. Supreme Court ruled that state law could not reach into an Indian reservation and the Arizona court therefore had no jurisdiction to hear cases brought by non-Native Americans against tribal members living on the reservation for a debt incurred on the reservation.

My clients, who lived on the reservation where the debts had been created, were having judgments entered against them in the Utah courts in violation of the Williams decision. The state of Utah was filing the cases against my clients and obtaining the unlawful judgments, so I asked the state to stop violating my clients’ rights to have these civil cases heard in the Navajo Nation courts. The state declined.

In response, I filed an action against Utah pursuant to a federal statute that authorizes civil litigation to address violations of rights guaranteed by the federal Constitution or federal law. Being sued under federal law got Utah’s attention and we eventually reached a settlement that Utah would stop suing my clients in state court.

In 1981, in Montana vs. United States, the Supreme Court examined whether the Crow Tribe could regulate hunting and fishing by non-Native Americans on non-Native American land within the Crow Reservation. The court’s decision limited tribal civil jurisdiction over non-Native Americans on non-Native American-owned land within a reservation, with two exceptions. The court stated that the “tribe may regulate ... the activities of nonmembers who enter consensual relationships with the tribe or its members.” So, for example, tribes have civil jurisdiction over non-Native Americans who sign contracts on a reservation with a tribe or tribal members. The court also stated that tribes “retain inherent ... civil authority over the conduct of non-Native Americans ... when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” What exactly this means is the source of constant litigation between tribes and non-Native Americans. What is clear, as the Supreme Court has said, is civil jurisdiction over non-Native Americans on non-Native American land is limited because tribal powers “do not extend beyond what is necessary to protect tribal self-government or to control internal relations.”

Extending Montana, the U.S. Supreme Court later decided that a tribal court lacked civil jurisdiction to hear a case concerning a traffic accident on a reservation between two non-Native Americans that occurred on a state-controlled highway right-of-way over tribal land, because the non-Native Americans involved had no consensual relationship with the tribe and resolution of the dispute between non-Native Americans did not threaten the political integrity, economic security or heath or welfare of the tribe. Similarly, a tribal court did not have civil jurisdiction to hear a case against a car manufacturer for a vehicle roll-over on a tribally maintained road, owned by the federal government that killed a tribal member.

Some federal courts have made a distinction that Montana only applies to non-Native Americans land and tribal courts have civil jurisdiction to hear cases concerning the actions of non-Indians on tribal lands. A recent case before the federal Ninth Circuit Court of Appeals decided that a tribal court did have civil jurisdiction in a case against a non-Indian based on the non-Indian’s failure to make payments to the tribe for a lease of tribal land.

The story isn’t over yet. The federal circuit courts interpret Montana differently, which means that the Supreme Court will probably revisit the issue of tribal court civil jurisdiction over non-Native Americans.

Steven C. Boos is an attorney with the firm of Maynes, Bradford, Shipps & Sheftel in Durango. Reach him at