4 Chapter T HIS CHAPTER EXPLORES various possible means for extending tribal jurisdiction (power) over non-Indians who work for the tribe or who use tribal resources, such as game, fish, or timber. Requiring non-Indians to accept or acquiesce to tribal jurisdiction prior to working for the tribe or using tribal resources can protect the community from individuals who may cause harm. Tribes do not have criminal jurisdiction over non-Indians. In United States v. McBratney, the U.S. Supreme Court held that state jurisdiction took the place of federal jurisdiction over the murder of a white man by another white man on a Colorado Indian reservation. The rationale was that the tribe would not have any interest in such a crime. Post McBratney, the Court has made it clear that tribes do not have criminal jurisdiction over non-Indian who commit crimes in Indian Country. Tribes, however, may have civil jurisdiction over non-Indians even over non-Indian actions that occur on fee land under the so-called test,” that is, where the non-Indian either (1) enters into consensual relations with the “Montana tribe or its members (through commercial dealings, contracts, leases, or other arrangements) or (2) where the conduct threatens or has some direct effect on the political integrity, economic security, or the health or welfare of the tribe. Many tribes exercise this jurisdiction by enacting civil provisions that apply fine and seizure schemes to offenses that would otherwise be criminal in nature. Moreover, where the tribal court has jurisdiction over an Indian child, any non-Indian relative who wants to have an impact on what happens to the Indian child has an incentive to consent to tribal jurisdiction either formally or informally. It is important to note that the U. S. Supreme Court has repeatedly interpreted the test” very narrowly. “Montana The U. S. Supreme Court has rarely found that non-Indian actions meet the test” even in a civil context “Montana especially when the non-Indian action took place on fee land.
Chapter 4 T HIS CHAPTER EXPLORES various possible means for extending tribal jurisdiction (power) over non-Indians who work for the tribe or who use tribal resources, such as game, fish, or timber. Requiring non-Indians to accept or acquiesce to tribal jurisdiction prior to working for the tribe or using tribal resources can protect the community from individuals who may cause harm. Tribes do not have criminal jurisdiction over non-Indians. In United States v. McBratney, the U.S. Supreme Court held that state jurisdiction took the place of federal jurisdiction over the murder of a white man by another white man on a Colorado Indian reservation. The rationale was that the tribe would not have any interest in such a crime. Post McBratney, the Court has made it clear that tribes do not have criminal jurisdiction over non-Indian who commit crimes in Indian Country. Tribes, however, may have civil jurisdiction over non-Indians even over non-Indian actions that occur on fee land under the so-called “Montana test,” that is, where the non-Indian either (1) enters into consensual relations with the tribe or its members (through commercial dealings, contracts, leases, or other arrangements) or (2) where the conduct threatens or has some direct effect on the political integrity, economic security, or the health or welfare of the tribe. Many tribes exercise this jurisdiction by enacting civil provisions that apply fine and seizure schemes to offenses that would otherwise be criminal in nature. Moreover, where the tribal court has jurisdiction over an Indian child, any non-Indian relative who wants to have an impact on what happens to the Indian child has an incentive to consent to tribal jurisdiction either formally or informally. It is important to note that the U. S. Supreme Court has repeatedly interpreted the “Montana test” very narrowly. The U. S. Supreme Court has rarely found that non-Indian actions meet the “Montana test” even in a civil context especially when the non-Indian action took place on fee land.
CCC_February_2009.docx