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1
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STEVENS-CONCURRING
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EXTRACTED KEY WORDS
TRIBAL COURTS JURISDICTION LAW STRATE AUTHORITY ANTE UNITED STATES SUBJECT-MATTER JURISDICTION RELIEF TRIBAL COURTS LACK CONTRACTORS NONMEMBERS SUITS SILENCE MAJORITY STATE WARDENS EXECUTING HOLDING JUSTICE REASON EXERCISE ENTERTAIN GRANT POWER ADJUDICATE PROVISION STATE-COURT GOVERNANCE RIGHTS FEDERAL STATUTORY |
Stevens, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
No. 99-1994
NEVADA, et al., PETITIONERS v.
FLOYD HICKS et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 25, 2001]
Justice Stevens, with whom Justice Breyer joins, concurring in the judgment.
While I join the Court's disposition of the case for the reasons stated by Justice
O'Connor, I do not agree with the Court's conclusion that tribal courts may not exercise
their jurisdiction over claims seeking the relief authorized by §42 U.S.C. 1983.1 I agree
instead with the Solicitor General's submission that a tribal court may entertain such a
claim unless enjoined from doing so by a federal court. See Brief for United States as
Amicus Curiae
24-30.
The majority's analysis of this question is exactly backwards. It appears to start from the
assumption that tribal courts do not have jurisdiction to hear federal claims unless federal
law expressly grants them the power, see ante, at 13, and then concludes that, because no
such express grant of power has occurred with respect to §1983, tribal courts must lack
the authority to adjudicate those claims. Ibid. ("[N]o provision in federal law provides for
tribal-court jurisdiction over §1983 actions"). But the Court's initial assumption is deeply
flawed. Absent federal law to the contrary, the question whether tribal courts are courts of
general jurisdiction is fundamentally one of tribal law. Cf. Gulf Offshore Co. v. Mobil
Oil Corp., 453 U.S. 473, 478 (1981) (State-court subject-matter jurisdiction is "governed
in the first instance by state law" (emphasis added)).2 Given a tribal assertion of general
subject-matter jurisdiction, we should recognize a tribe's authority to adjudicate claims
arising under §1983 unless federal law dictates otherwise. Cf. id., at 477-478 ("[S]tate
courts may assume subject-matter jurisdiction over a federal cause of action absent
provision by Congress to the contrary or disabling incompatibility between the federal
claim and state-court adjudication").3
I see no compelling reason of federal law to deny tribal courts the authority, if they have
jurisdiction over the parties, to decide claims arising under §1983. Section 1983 creates
no new substantive rights, see Chapman v. Houston Welfare Rights Organization, 441
U.S. 600, 617 (1979); it merely provides a federal cause of action for the violation of
federal rights that are independently established either in the Federal Constitution or in
federal statutory law. Despite the absence of any mention of state courts in §1983, we
have never questioned the jurisdiction of such courts to provide the relief it authorizes.4
Moreover, as our decision in El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (1999),
demonstrates, the absence of an express statutory provision for removal to a federal court
upon the motion of the defendant provides no obstacle whatsoever to the granting of
equivalent relief by a federal district court. See id., at 485 ("Injunction against further
litigation in tribal courts would in practical terms give the same result as a removal ...").
"Why, then, the congressional silence on tribal courts? ... [I]nadvertence seems the most
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2
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SOUTER-CONCURRING
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EXTRACTED KEY WORDS
TRIBAL COURTS JURISDICTION MONTANA CIVIL JURISDICTION TRIBE TRIBAL AUTHORITY NONMEMBERS TRIBAL-COURT CIVIL JURISDICTION UNITED STATES INDIAN TRIBES CONCURRING LAND OPINION PRINCIPLE POWERS PETITIONERS RESERVATION MONTANA EXCEPTION INHERENT SOVEREIGN POWERS SUPREME COURT STATE OFFICERS PRESUMPTION GENERAL PROPOSITION NON-INDIANS JUSTICES KENNEDY THOMAS JOIN PETITIONING STATE OFFICERS ATKINSON TRADING CRIMINAL JURISDICTION |
Souter, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 99-1994
NEVADA, et al., PETITIONERS v.
FLOYD HICKS et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 25, 2001]
Justice Souter, with whom Justices Kennedy and Thomas join, concurring.
I agree that the Fallon Paiute-Shoshone Tribal Court had no jurisdiction to entertain
Hicks's claims against the petitioning state officers here, and I join the Court's opinion.
While I agree with the Court's analysis as well as its conclusion, I would reach that point
by a different route. Like the Court, I take Montana v. United States, 450 U.S. 544
(1981), to be the source of the first principle on tribal-court civil jurisdiction, see
Atkinson Trading Co. v. Shirley, 532 U.S. ___, ___ (2001) (Souter, J., concurring). But
while the Court gives emphasis to measuring tribal authority here in light of the State's
interest in executing its own legal process to enforce state law governing off-reservation
conduct, ante, at 6-11, I would go right to Montana's rule that a tribe's civil jurisdiction
generally stops short of nonmember defendants, 450 U.S., at 565, subject only to two
exceptions, one turning on "consensual relationships," the other on respect for "the
political integrity, the economic security, or the health or welfare of the tribe," id., at
566.1
Montana applied this presumption against tribal jurisdiction to nonmember conduct on
fee land within a reservation; I would also apply it where, as here, a nonmember acts on
tribal or trust land, and I would thus make it explicit that land status within a reservation
is not a primary jurisdictional fact, but is relevant only insofar as it bears on the
application of one of Montana's exceptions to a particular case. Insofar as I rest my
conclusion on the general jurisdictional presumption, it follows for me that, although the
holding in this case is "limited to the question of tribal-court jurisdiction over state
officers enforcing state law," ante, at 4, n. 2, one rule independently supporting that
holding (that as a general matter "the inherent sovereign powers of an Indian tribe do not
extend to the activities of nonmembers of the tribe," ante, at 5) is not so confined.
I Petitioners are certainly correct that "[t]ribal adjudicatory jurisdiction over nonmembers
is ... ill-defined," Reply Brief for Petitioners 16, since this Court's own pronouncements
on the issue have pointed in seemingly opposite directions. Compare, e.g., Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 65 (1978) ("Tribal courts have repeatedly been
recognized as appropriate forums for the exclusive adjudication of disputes affecting
important personal and property interests of both Indians and non-Indians"), and United
States v. Mazurie, 419 U.S. 544, 557 (1975) ("Indian tribes are unique aggregations
possessing attributes of sovereignty over both their members and their territory"), with,
e.g., Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 209 (1978) (" `[T]he limitation
upon [tribes'] sovereignty amounts to the right of governing every person within their
limits except themselves' ") (quoting Fletcher v. Peck, 6 Cranch 87, 147 (1810))).
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3
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OCONNOR-CONCURRING
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EXTRACTED KEY WORDS
COURT LAND STATE OFFICIALS MONTANA POWER LAW JURISDICTION AUTHORITY APPEALS NONMEMBERS HICKS UNITED STATES OPINION CIVIL JURISDICTION IMMUNITY RESERVATION COOPERATIVE AGREEMENTS CONSENSUAL RELATIONSHIP PETITIONERS JUSTICE BREYER JOIN CONCURRING A-1 CONTRACTORS COURT FINALLY RESOLVES GOVERNMENTS DISTRICT COURT INHERENT SOVEREIGN ADJUDICATORY JURISDICTION REGULATORY JURISDICTION IMMUNITY CLAIMS |
Opinion of O'Connor, J. SUPREME COURT OF THE UNITED STATES No. 99-1994 NEVADA, et al., PETITIONERS v. FLOYD HICKS et al. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 25, 2001] Justice O'Connor, with whom Justice Stevens and Justice Breyer join, concurring in part and concurring in the judgment. The Court holds that a tribe has no power to regulate the activities of state officials enforcing state law on land owned and controlled by the tribe. The majority's sweeping opinion, without cause, undermines the authority of tribes to " `make their own laws and be ruled by them.' " Strate v. A-1 Contractors, 520 U.S. 438, 459 (1997) (quoting Williams v. Lee, 358 U.S. 217, 220 (1959)). I write separately because Part II of the Court's decision is unmoored from our precedents. I A Today, the Court finally resolves that Montana v. United States, 450 U.S. 544 (1981), governs a tribe's civil jurisdiction over nonmembers regardless of land ownership. Ante, at 4-6. This is done with little fanfare, but the holding is significant because we have equivocated on this question in the past. In Montana, we held that the Tribe in that case could not regulate the hunting and fishing activities of nonmembers on nontribal land located within the geographical boundaries of the reservation. 450 U.S., at 557. We explained that the Tribe's jurisdiction was limited to two instanceswhere a consensual relationship exists between the tribe and nonmembers, or where jurisdiction was necessary to preserve tribal sovereigntyand we concluded that neither instance applied. Id., at 565-567; ante, at 4-6. Given the facts of Montana, it was not clear whether the status of the persons being regulated, or the status of the land where the hunting and fishing occurred, led the Court to develop Montana's jurisdictional rule and its exceptions. In subsequent cases, we indicated that the nonmember status of the person being regulated determined Montana's application, see, e.g., South Dakota v. Bourland, 508 U.S. 679, 694-695, and n. 15 (1993), while in other cases we indicated that the fee simple status of the land triggered application of Montana, see, e.g., Strate v. A-1 Contractors, supra, at 454, and n. 8. This is the Court's first opportunity in recent years to consider whether Montana applies to nonmember activity on land owned and controlled by the tribe. Cf. Atkinson Trading Co. v. Shirley, 532 U.S. ___ (2001). The Court of Appeals concluded that Montana did not apply in this case because the events in question occurred on tribal land. 196 F.3d 1020, 1028 (CA9 1999). Because Montana is our best source of "coherence in the various manifestations of the general law of tribal jurisdiction over non-Indians," Atkinson Trading Co. v. Shirley, supra, at ___ (slip op., at 1) (Souter, J., concurring), the majority is quite right that Montana should govern our analysis of a tribe's civil jurisdiction over nonmembers both on and off tribalSNIPPETS: |
