Smith v. Salish Kootenai College

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES R. SMITH, 
Plaintiff-Appellant,
v. No. 03-35306
SALISH KOOTENAI COLLEGE;
COURT OF APPEALS OF THE  D.C. No.
CV-02-00055-LBE
CONFEDERATED SALISH AND
OPINION
KOOTENAI TRIBES OF THE FLATHEAD
RESERVATION,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Montana
Leif B. Erickson, Magistrate Judge, Presiding
Argued and Submitted En Banc
June 23, 2005—San Francisco, California
Filed January 10, 2006
Before: Mary M. Schroeder, Chief Judge,
Pamela Ann Rymer, Michael Daly Hawkins,
Barry G. Silverman, Susan P. Graber, Ronald M. Gould,
Richard A. Paez, Marsha S. Berzon, Richard R. Clifton,
Jay S. Bybee, and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Bybee;
Dissent by Judge Gould
103
106 SMITH v. SALISH KOOTENAI COLLEGE
COUNSEL
Rex Palmer, Attorneys Inc., P.C., Missoula, Montana, for the
plaintiff-appellant.
Robert J. Phillips, Phillips & Bohyer, P.C., Missoula, Mon-
tana, for defendant-appellee Salish Kootenai College; John T.
Harrison, Legal Department, Confederated Salish and Koote-
nai Tribes of the Flathead Indian Reservation, Pablo, Mon-
tana, for defendant-appellee Court of Appeals of the
Confederated Salish and Kootenai Tribes of the Flathead Res-
ervation.
Mary L. Smith, Washington, D.C., for amicus curiae National
Congress of American Indians.
OPINION
BYBEE, Circuit Judge:
The question presented in this case is whether a non-Indian
plaintiff consents to the civil jurisdiction of a tribal court by
SMITH v. SALISH KOOTENAI COLLEGE 107
filing claims against an Indian defendant arising out of activi-
ties within the reservation where the defendant is located.
Appellant James Smith, who is not a member of the Confed-
erated Salish and Kootenai Tribes (“the Tribes”) of the Flat-
head Reservation, filed a claim in tribal court against Salish
and Kootenai College (“SKC”) arising out of an automobile
accident. After a jury returned a verdict in favor of SKC,
Smith sought an injunction in federal court, alleging that the
tribal court lacked subject matter jurisdiction. The tribal
courts had previously held that they had jurisdiction to adjudi-
cate the case, and the district court agreed and denied the
injunction. Concluding that Smith’s suit is within the first
exception of Montana v. United States, 450 U.S. 544 (1981),
and the rule in Williams v. Lee, 358 U.S. 217 (1959), we
affirm.
I. FACTS AND PROCEDURAL HISTORY
Salish and Kootenai College was established by the Con-
federated Salish and Kootenai Tribes of the Flathead Reserva-
tion in Montana. Its mission is “to provide quality
postsecondary educational opportunities for Native Ameri-
cans” and “to promote and help maintain the cultures of the
Confederated Tribes of the Flathead Indian Nation.” Mission
Statement, http://www.skc.edu/ (last visited Oct. 17, 2005).
SKC is located on tribal land in Pablo, Montana, where it
reports 56 full-time instructors, 28 part-time instructors, and
more than 1100 students. More than three-quarters of SKC’s
students are affiliated with an Indian tribe; more than one-
third of these are affiliated with the Confederated Salish and
Kootenai. The Tribes incorporated SKC under tribal law in
1977, and a year later SKC was incorporated under state law.
Under its articles of incorporation, SKC may sue and be sued
in its corporate name in the tribal courts. Its bylaws stipulate
that each of the seven members of the Board of Directors
must be an enrolled member of the Confederated Salish and
Kootenai Tribes. The Tribal Council appoints the members of
108 SMITH v. SALISH KOOTENAI COLLEGE
the Board and may remove them. SKC admits nonmembers
of the Tribes.
Smith was enrolled as a student at SKC, although he is a
member of the Umatilla Tribe and not of the Confederated
Salish and Kootenai Tribes. As part of a course in which he
was enrolled, Smith was driving a dump truck, owned by
SKC, on U.S. Highway 93 within the Flathead Reservation.
Two fellow students were passengers in the truck. Allegedly,
the right rear main leaf spring broke, causing the truck to veer
sharply and roll over. One passenger, Shad Eugene Burland,
was killed, and Smith and a second passenger, James Finley,
were seriously injured. Both Burland and Finley were
enrolled members of the Confederated Salish and Kootenai
Tribes.
The procedural history that culminates in this appeal is
complex. Burland’s estate filed a wrongful death action in
tribal court against SKC and Smith. SKC filed a cross-claim
against Smith. Finley then filed suit against SKC and Smith,
and Smith filed his own cross-claim against SKC. The tribal
court consolidated the cases, and all claims were settled
except Smith’s cross-claim against SKC. Rather than with-
drawing his cross-claim and filing in another court, Smith
elected to litigate the claim fully in tribal court. The tribal
court realigned the parties, naming Smith as the plaintiff and
SKC as the defendant. The claims went to a jury, which
returned a verdict in favor of SKC.
Following the unfavorable verdict, Smith argued for the
first time that the tribal court did not have subject matter juris-
diction. He first sought post-judgment relief in tribal court. At
the same time, he filed an appeal of the judgment with the
tribal appeals court, which remanded to the tribal trial court
to determine jurisdiction. The tribal court determined that it
had jurisdiction, and Smith again filed an appeal with the
tribal appeals court. While his second tribal-court appeal was
pending, Smith filed a motion for an injunction in federal dis-
SMITH v. SALISH KOOTENAI COLLEGE 109
trict court on the ground of lack of jurisdiction, and sought to
file his cross-claim as an original complaint in that court.
Before the federal district court ruled on the injunction, the
tribal appellate court issued an opinion affirming the tribal
court’s jurisdictional ruling. The federal district court then
issued its order finding that the tribal court had jurisdiction
and denying the injunction. Smith appealed the judgment of
the district court. A panel of our court reversed on the ground
that the tribal court lacked jurisdiction over Smith’s claims.
Smith v. Salish Kootenai Coll., 378 F.3d 1048 (9th Cir. 2004).
We vacated that opinion and granted en banc review. 407
F.3d 1267 (9th Cir. 2005).
II. STANDARD OF REVIEW
The question of tribal court jurisdiction is a federal ques-
tion of law, which we review de novo. Nat’l Farmers Union
Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 852-53
(1985); FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311,
1314 (9th Cir. 1990). We review findings of fact for clear
error. Id. at 1313.
III. ANALYSIS
A
Sixteen years ago, we observed that “[t]here is no simple
test for determining whether tribal court jurisdiction exists.”
Stock W., Inc. v. Confederated Tribes of the Colville Reserva-
tion, 873 F.2d 1221, 1228 (9th Cir. 1989). The statement is no
less true today. We recently noted that questions of jurisdic-
tion over Indians and Indian country remain a “ ‘complex
patchwork of federal, state, and tribal law,’ which is better
explained by history than by logic.” United States v. Bruce,
394 F.3d 1215, 1218 (9th Cir. 2005) (quoting Duro v. Reina,
495 U.S. 676, 680 n.1 (1990)).
110 SMITH v. SALISH KOOTENAI COLLEGE
Our analysis of the tribal court’s jurisdiction starts with the
Supreme Court’s decision in Montana, a “pathmarking case
concerning tribal civil authority over nonmembers.” Strate v.
A-1 Contractors, 520 U.S. 438, 445 (1997); see County of
Lewis v. Allen, 163 F.3d 509, 513 (9th Cir. 1998) (en banc).
In Montana, the Court found that tribal courts have two bases
for their authority. First, tribes possess inherent power “neces-
sary to protect tribal self-government [and] to control internal
relations.” Montana, 450 U.S. at 564. This includes the inher-
ent power “to determine tribal membership, to regulate
domestic relations among members, and to prescribe rules of
inheritance for members.” Id. Second, tribes possess such
additional authority as Congress may expressly delegate.
Strate, 520 U.S. at 445; Montana, 450 U.S. at 564. As no
party contends that Congress has expressly granted the Con-
federated Salish and Kootenai Tribes the authority to hear this
suit, we will consider only whether the Tribes have such
inherent authority. See United States v. Lara, 541 U.S. 193,
210 (2004).
“Indian tribes have long been recognized as sovereign enti-
ties, ‘possessing attributes of sovereignty over both their
members and their territory.’ ” Babbitt Ford, Inc. v. Navajo
Indian Tribe, 710 F.2d 587, 591 (9th Cir. 1983) (quoting
United States v. Wheeler, 435 U.S. 313, 323 (1978) (quoting
United States v. Mazurie, 419 U.S. 544, 557 (1975))). The
basis for tribal jurisdiction is the tribes’ inherent need to
define the terms for enrollment, to determine the continuing
status of their members, and to regulate relations among their
members. Strate, 520 U.S. at 459; Montana, 450 U.S. at 563-
64. Owing to their historical status as “dependent
sovereign[s]” within the United States, the tribes hold terri-
tory reserved by the United States for the tribes as their prin-
cipal physical asset. Lara, 541 U.S. at 229 (Souter, J.,
dissenting). The tribes retain legislative and adjudicative juris-
diction to provide for disposition of reserved lands and to reg-
ulate activities on those lands.
SMITH v. SALISH KOOTENAI COLLEGE 111
[1] In general, “the inherent sovereign powers of an Indian
tribe do not extend to the activities of nonmembers of the
tribe.” Montana, 450 U.S. at 565. This principle is “subject to
two exceptions: The first exception relates to nonmembers
who enter consensual relationships with the tribe or its mem-
bers; the second concerns activity that directly affects the
tribe’s political integrity, economic security, health, or wel-
fare.” Strate, 520 U.S. at 446. The Court first identified these
two exceptions in Montana. There, it explained that
Indian tribes retain inherent sovereign power to exer-
cise some forms of civil jurisdiction over non-
Indians on their reservations, even on non-Indian fee
lands. [1] A tribe may regulate, through taxation,
licensing, or other means, the activities of nonmem-
bers who enter consensual relationships with the
tribe or its members, through commercial dealing,
contracts, leases, or other arrangements. [2] A tribe
may also retain inherent power to exercise civil
authority over the conduct of non-Indians on fee
lands within its reservation when that conduct threat-
ens or has some direct effect on the political integ-
rity, the economic security, or the health or welfare
of the tribe.
Montana, 450 U.S. at 565-66 (citations omitted).1
1
Ordinarily, so long as there is a “colorable question” whether a tribal
court has subject matter jurisdiction, federal courts will stay or dismiss an
action in federal court “to permit a tribal court to determine in the first
instance whether it has the power to exercise subject-matter jurisdiction in
a civil dispute between Indians and non-Indians that arises on an Indian
reservation.” Stock W. Corp. v. Taylor, 964 F.2d 912, 919 (9th Cir. 1992)
(en banc); see Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987); Nat’l
Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 857
(1985) (“Exhaustion of tribal court remedies . . . will encourage tribal
courts to explain to the parties the precise basis for accepting jurisdiction,
and will also provide other courts with the benefit of their expertise . . . .”).
The district court did not issue its decision until Smith had exhausted his
appeals in the Confederated Salish and Kootenai tribal courts.
112 SMITH v. SALISH KOOTENAI COLLEGE
The Court’s recent cases, and our own experience with the
Montana exceptions, demonstrate that there are two facts
courts look to when considering a tribal court’s civil jurisdic-
tion over a case in which a nonmember is a party. First, and
most important, is the party status of the nonmember; that is,
whether the nonmember party is a plaintiff or a defendant. As
Justice Souter observed in Nevada v. Hicks, “[i]t is the mem-
bership status of the unconsenting party, not the status of real
property, that counts as the primary jurisdictional fact.” 533
U.S. 353, 382 (2001) (Souter, J., concurring). The Court has
repeatedly demonstrated its concern that tribal courts not
require “defendants who are not tribal members” to “defend
[themselves against ordinary claims] in an unfamiliar court.”
Strate, 520 U.S. at 442, 459. Second, the Court has placed
some store in whether or not the events giving rise to the
cause of action occurred within the reservation. See Hicks,
533 U.S. at 360 (“The ownership status of land . . . is only one
factor to consider . . . .”). Within the reservation, “[t]o be sure,
Indian tribes retain inherent sovereign power to exercise some
forms of civil jurisdiction over non-Indians . . . even on non-
Indian fee lands,” Montana, 450 U.S. at 565, but subject to an
exception not relevant here, “there can be no assertion of civil
authority beyond tribal lands.” Atkinson Trading Co. v. Shir-
ley, 532 U.S. 645, 658 n.12 (2001).
[2] The interaction of these factors—the status of the par-
ties and the connection between the cause of action and Indian
lands—is complex. Nevertheless, the cases provide some
guidance for our discussion, and we can summarize them as
follows. First, where the nonmembers are the plaintiffs, and
the claims arise out of commercial activities within the reser-
vation, the tribal courts may exercise civil jurisdiction. See
Williams v. Lee, 358 U.S. 217 (1959). Second, where the non-
members are defendants, the Court has thus far held that the
tribes lack jurisdiction, irrespective of whether the claims
arose on Indian lands. See Hicks, 533 U.S. at 356 (claims
arose on Indian fee lands); Montana, 450 U.S. at 547 (claims
arose on non-Indian lands within the reservation). Our own
SMITH v. SALISH KOOTENAI COLLEGE 113
cases, however, suggest that whether tribal courts may exer-
cise jurisdiction over a nonmember defendant may turn on
how the claims are related to tribal lands.2 Finally, where nei-
ther party is a tribal member the tribe lacks jurisdiction to
adjudicate claims arising from an accident on a public high-
way within the reservation. Strate, 520 U.S. at 456-59.
The Court has drawn an important observation from this
history. It has “never held that a tribal court had jurisdiction
over a nonmember defendant.” Hicks, 533 U.S. at 358 n.2.
Nevertheless, it has “le[ft] open the question of tribal-court
jurisdiction over nonmember defendants in general.” Id.3
2
Compare Boxx v. Long Warrior, 265 F.3d 771 (9th Cir. 2001) (cause
of action arose on non-Indian fee land within the reservation; no jurisdic-
tion in tribal courts); Burlington N. RR. v. Red Wolf, 196 F.3d 1059 (9th
Cir. 1999) (cause of action arose on railroad right-of-way within the reser-
vation; no jurisdiction in tribal courts); State of Mont. Dep’t of Transp. v.
King, 191 F.3d 1108 (9th Cir. 1999) (cause of action arose on state high-
way within reservation; no need to exhaust claims in tribal courts); Wilson
v. Marchington, 127 F.3d 805 (9th Cir. 1997) (cause of action arose on
U.S. highway within reservation; judgment of tribal court not entitled to
recognition in U.S. courts); and Yellowstone County v. Pease, 96 F.3d
1169 (9th Cir. 1996) (county taxed member-owned land within reserva-
tion; no jurisdiction in tribal courts to enjoin the county), with McDonald
v. Means, 309 F.3d 530 (9th Cir. 2002) (cause of action arose out of acci-
dent on tribal road; tribal court had jurisdiction); Allstate Indem. Co. v.
Stump, 191 F.3d 1071 (9th Cir. 1999) (cause of action arose out of acci-
dent on tribal roads; remanded for exhaustion of tribal determination of
jurisdiction); and Stock W., Inc. v. Confederated Tribes of the Colville
Reservation, 873 F.2d 1221 (9th Cir. 1989) (contracts with tribe for activi-
ties on reservation; tribal court’s determination of jurisdiction entitled to
comity).
3
In light of the Court’s observations on the relevance of party status, we
are puzzled by the dissent’s insistence that the Montana “framework
applies to legal actions involving ‘nonmembers’ without limitation,” and
that we have “err[ed]” in holding that jurisdiction may turn on “whether
the nonmember party is a plaintiff or defendant.” Dissent at 129-30. Party
status is plainly relevant, as the Court has repeatedly made clear. See
Hicks, 533 U.S. at 358 & n.2; id. at 382 (Souter, J., concurring); see also
Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845,
854-55 (1985).
114 SMITH v. SALISH KOOTENAI COLLEGE
We next consider the status of the parties to this litigation
and whether the claims are related to tribal lands.
B
1
[3] Smith’s status as a nonmember is clear. James Smith is
a not a member of the Confederated Salish and Kootenai
Tribes. He is a member of the Umatilla Tribe, but for pur-
poses of determining the tribal civil jurisdiction of the Salish
and Kootenai Tribal Courts, he is a nonmember. See Hicks,
533 U.S. at 377; see also Duro v. Reina, 495 U.S. 676, 695-
96 (1990).
What is less clear is whether Smith is a plaintiff or a defen-
dant. The original suits were filed against Smith and SKC by
Burland’s estate and Finley; in that action, Smith was named
as a defendant. Smith did not challenge the tribe’s jurisdic-
tion; instead, he filed a cross-claim against SKC, which had
filed its own cross-claim against Smith. Prior to trial, the par-
ties resolved all the claims except for Smith’s cross-claim
against SKC. The tribal court realigned the parties, and Smith
became the plaintiff.
[4] In the posture in which this case came to us, Smith is
the plaintiff. It is irrelevant for our purposes that Smith was
originally named as a defendant. Courts may realign parties,
according to their ultimate interests, whether the realignment
has the effect of conferring or denying subject matter jurisdic-
tion on the court. See Standard Oil Co. of Cal. v. Perkins, 347
F.2d 379, 382 (9th Cir. 1965); see also FED. R. CIV. P. 19(a)
(“If the person should join as a plaintiff but refuses to do so,
the person may be made a defendant, or, in a proper case, an
involuntary plaintiff.”); CHARLES ALAN WRIGHT & MARY KAY
KANE, LAW OF FEDERAL COURTS 177-78 (6th ed. 2002).
SMITH v. SALISH KOOTENAI COLLEGE 115
2
We next turn to the status of the defendant, SKC. SKC is
neither a Tribe nor a member of the Tribes. Although in the
original suit, the Confederated Salish and Kootenai Tribes
were sued as a defendant along with Smith and SKC, the
Tribes were dismissed on the ground that they had not waived
their immunity in tribal court. SKC did not contend then and
does not contend here that it shares the Tribes’ immunity. Nor
does SKC contend that it is eligible for tribal membership,
which under the Tribes’ constitution is limited to natural per-
sons.
Civil tribal jurisdiction is not limited to matters affecting
the tribe qua tribe or its members qua members. “[T]ribal
self-government” is at the heart of tribal jurisdiction. Mon-
tana, 450 U.S. at 564. Tribes may govern themselves through
entities other than formal tribal leadership. Of course, not
every enterprise that is owned or staffed by members of a
tribe may be considered a tribal entity for purposes of tribal
jurisdiction, see Atkinson Trading, 532 U.S. at 657, but we
have previously recognized that there are entities that are suf-
ficiently identified with the tribe that they may be considered
to be “tribal.”
Whether an entity is a tribal entity depends on the context
in which the question is addressed. See Dille v. Council of
Energy Res. Tribes, 801 F.2d 373, 376 (10th Cir. 1986) (stat-
ing that “the definition of an Indian tribe changes depending
upon the purpose of the regulation or statutory provision
under consideration”). It is nevertheless useful to look at anal-
ogous cases, outside the area of tribal civil jurisdiction, where
courts have been called upon to identify tribal entities. In Pink
v. Modoc Indian Health Project, Inc., 157 F.3d 1185 (9th Cir.
1998), we considered whether the Modoc Indian Health Proj-
ect was a “tribe” and therefore exempt from the definition of
a covered “employer” in Title VII. See 42 U.S.C. § 2000e(b)
(2003). We found that Modoc was a “nonprofit corporation
116 SMITH v. SALISH KOOTENAI COLLEGE
created and controlled by the Alturas and Cedarville Ran-
cherias, both federally recognized tribes.” Pink, 157 F.3d at
1187. Modoc’s board of directors were appointed by federally
recognized tribes and “served as an arm of the sovereign
tribes, acting as more than a mere business.” Id. at 1188. We
concluded that Modoc was exempt. Our holding is consistent
with decisions in other circuits. See, e.g., Hagen v. Sisseton-
Wahpeton Cmty. Coll., 205 F.3d 1040, 1043 (8th Cir. 2000)
(community college chartered, funded, and controlled by
Tribe is a tribal agency entitled to sovereign immunity); Duke
v. Absentee Shawnee Tribe of Okla. Hous. Auth., 199 F.3d
1123, 1125, 1126 (10th Cir. 1999) (housing authority was “an
enterprise designed to further the economic interests of the
Absentee Shawnee tribe, and the tribe has exclusive control
over the appointment and removal of its decisionmakers”;
holding that the housing authority was exempt under Title
VII); Dillon v. Yankton Sioux Tribe Hous. Auth., 144 F.3d
581, 583 (8th Cir. 1998) (for Title VII purposes, “ ‘a housing
authority, established by a tribal council pursuant to its pow-
ers of self-government, is a tribal agency[,]’ . . . . rather than
a separate corporate entity created by the tribe” (quoting
Weeks Constr., Inc. v. Oglala Sioux Hous. Auth., 797 F.2d
668, 670 (8th Cir. 1986))); Dille, 801 F.2d at 373 (holding
that a council composed of tribes to manage their energy
resources was a tribe for Title VII purposes).
By contrast, in NLRB v. Chapa De Indian Health Program,
Inc., 316 F.3d 995 (9th Cir. 2003), we considered whether the
Chapa-De Indian Health Program was subject to subpoena by
the National Labor Relations Board. Chapa-De had been
authorized by the Rumsey Indian Rancheria, a federally rec-
ognized tribe, and was a “tribal organization” for purposes of
the Indian Self Determination Act, 25 U.S.C. § 450b(l). None
of its board of directors was a member of the Rumsey Tribe,
although there were tribal members on the advisory board.
Almost half of Chapa-De’s patients and its employees were
not Native Americans, and it operated facilities on non-Indian
land. We concluded that, although Chapa-De served the
SMITH v. SALISH KOOTENAI COLLEGE 117
health needs of the tribe, its labor relations were not “an
intramural activity related to self-governance.” Chapa De,
316 F.3d at 1000. Where the standard was “whether the
NLRB ‘plainly lack[ed]’ jurisdiction,” we concluded that
“[j]urisdiction [was] not plainly lacking.” Id. at 997, 1001
(quoting EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071,
1077 (9th Cir. 2001)).
SKC is located on tribal lands on the Flathead Reservation,
is incorporated under tribal and state law, and is described in
its articles of incorporation as “[a] tribal corporation.” SKC
may sue and be sued in its corporate name in tribal court.
Under SKC’s bylaws, the Tribal Council appoints the board
of directors, who must be members of the Tribes, and may
remove members of the board. Although SKC does not claim
that it is immune from suit in tribal courts, the Tribes created
it and continue to exercise some control over the institution.
Most students receiving degrees are Native Americans, and
thirty-four percent of students are from the Confederated
Salish and Kootenai Tribes. The college favors Native Ameri-
cans in hiring, and about forty percent of faculty members are
Indians. Even though the Tribes do not fund the college, SKC
has been identified as a “tribal governmental agency.” See
Bartell v. Am. Home Assurance Co., 49 P.3d 623, 624 (Mont.
2002) (referring to finding in federal district court). On the
basis of this record, the Tribal Court of Appeals concluded
that “SKC is a tribal entity closely associated with and con-
trolled by the Tribes. For purposes of determining jurisdic-
tion, it must be treated as a tribal entity.” Similarly, the
district court found that “SKC is a tribal entity or an arm of
the tribe for purposes of federal Indian law regarding tribal
court jurisdiction.”
[5] We do not disagree with these assessments. This case
is much closer to Modoc and the Eighth Circuit’s decision in
Hagen than it is to Chapa De. Like the Modoc Indian Health
Project, SKC is a nonprofit corporation created as a “tribal
corporation.” See Pink, 157 F.3d at 1188. As in Hagen, and
118 SMITH v. SALISH KOOTENAI COLLEGE
unlike Chapa De, SKC’s directors are members of the Tribes,
selected and subject to removal by the Tribal Council. Chapa
De, 316 F.3d at 1000; Hagen, 205 F.3d at 1042. The college,
though open to nonmembers such as Smith, is located on
tribal lands within the reservation and serves the Confederated
Salish and Kootenai Tribes, unlike the Chapa De health pro-
gram, which served tribal members and nonmembers in four
facilities, none of which was on the reservation. Chapa De,
316 F.3d at 997, 1000. We conclude that SKC is a tribal entity
and, for purposes of civil tribal court jurisdiction, may be
treated as though it were a tribal “member.”
3
We next turn to whether the claims bear some connection
to Indian lands. This fact is significant, though not dispositive.
In Hicks, the Court emphasized that “Montana applies to both
Indian and non-Indian land. The ownership status of the land,
in other words, is only one factor to consider.” Hicks, 533
U.S. at 360; see also id. at 381 (Souter, J., concurring) (stating
that “a tribe’s remaining inherent civil jurisdiction to adjudi-
cate civil claims arising out of acts committed on a reserva-
tion depends in the first instance on the character of the
individual over whom jurisdiction is claimed, not on the title
to the soil on which he acted”). Our inquiry is not limited to
deciding precisely when and where the claim arose, a concept
more appropriate to determining when the statute of limita-
tions runs or to choice-of-law analysis. Rather, our inquiry is
whether the cause of action brought by these parties bears
some direct connection to tribal lands. See Allstate Indem. Co.
v. Stump, 191 F.3d 1071, 1073-74 (9th Cir. 1999); Stock W.
Corp. v. Taylor, 964 F.2d 912, 919-20 (9th Cir. 1992) (en
banc).
[6] Smith brought two claims against SKC. First, he alleged
that SKC was both negligent and strictly liable for its failure
to maintain the truck and its leaf spring. Second, he alleged
spoliation of evidence. Smith suffered his injuries on U.S.
SMITH v. SALISH KOOTENAI COLLEGE 119
Highway 93, which, as a federal highway within the reserva-
tion, is neither tribal land nor controlled by members of the
Tribes. See Strate, 520 U.S. at 454-55. Both of Smith’s
claims, however, implicated SKC’s actions on the college
campus, not on the highway. Unlike the accident in Strate,
where the plaintiff alleged that the defendants’ negligence on
public roads caused her injuries, Smith alleged negligence
occurring on the reservation, on lands and in the shop con-
trolled by a tribal entity, SKC.
[7] His spoliation claim similarly implicated SKC’s actions
at the college. Smith alleged that SKC destroyed notes from
the post-accident investigation and that this destruction inter-
fered with his ability to pursue his claims. SKC admitted that
at least one of its employees took notes of interviews with stu-
dents concerning the accident and the notes were “no longer
available.” The record is not clear where the notes were cre-
ated or destroyed, though the district court assumed the
destruction occurred at SKC. Whether or not the notes were
in fact lost or destroyed on tribal lands, SKC had control over
the notes. For our purposes, Smith’s claim arose out of activi-
ties conducted or controlled by a tribal entity on tribal lands.
C
We finally consider whether the tribal courts had sufficient
interest to justify the exercise of subject matter jurisdiction in
this case. We recognize that Smith’s suit does not fit obvi-
ously within the two exceptions set out in Montana. Smith is
not engaged in any of the illustrative “consensual relation-
ships” described in Montana: “commercial dealing, contracts,
leases, or other arrangements.” 450 U.S. at 565. Any contrac-
tual relationship Smith had with SKC as a result of his student
status is too remote from his cause of action to serve as the
basis for the Tribes’ civil jurisdiction. See Atkinson Trading,
532 U.S. at 656; Strate, 520 U.S. at 457. Smith might fit
within the second Montana exception, which allows for tribal
jurisdiction where the conduct of a non-member “threatens or
120 SMITH v. SALISH KOOTENAI COLLEGE
has some direct effect on the . . . economic security, or the
health or welfare of the tribe.” Montana, 450 U.S. at 566. The
Court in Montana cited Williams, the case most closely analo-
gous to Smith’s, as an example of both the first and second
exceptions. Id. at 565-66. Denying jurisdiction to the tribal
court would have a direct effect on the welfare and economic
security of the tribe insofar as it would seriously limit the
tribe’s ability to regulate the conduct of its own members
through tort law. See infra pp. 125-27. But, because we con-
clude that Smith’s agreement to invoke the jurisdiction of the
tribal court fits more comfortably within the first exception,
we need not decide whether the second also applies.
Although we find that Smith’s claims do not fit easily with
the literal examples cited in the first Montana exception, we
nevertheless believe that the Tribes’ exercise of civil jurisdic-
tion is consistent with the principles set forth in Montana and
succeeding cases. This case, unlike the Court’s decisions in
Hicks, Strate, and Montana, involves a nonmember plaintiff.
In this regard Smith is similarly situated to the principal case
cited as an example of the Montana exceptions: Williams v.
Lee. This is important, because as a plaintiff Smith chose to
appear in tribal court. We are of the opinion that, even though
his claims did not arise from contracts or leases with the
Tribes, Smith could and did consent to the civil jurisdiction
of the Tribes’ courts. And in this case, the exercise of tribal
jurisdiction is consistent with the limited sovereignty of the
Tribes.
1
In Williams, Hugh Lee, a non-Indian, brought suit in Ari-
zona state court against Paul Williams, who was a Navajo
Indian. Williams purchased goods at Lee’s store on the reser-
vation and failed to pay for them. Williams argued that exclu-
sive jurisdiction lay in the tribal courts because Arizona had
not accepted concurrent jurisdiction under a congressional act.
The Supreme Court agreed. Noting that the Navajo courts
SMITH v. SALISH KOOTENAI COLLEGE 121
“exercise broad criminal and civil jurisdiction which covers
suits by outsiders against Indian defendants,” the Court found
that it was “immaterial that respondent is not an Indian. He
was on the Reservation and the transaction with an Indian
took place there.” 358 U.S. at 222, 223.
The Court’s recent decisions in Hicks and Strate reaffirm
the validity of Williams. Most recently, in Hicks, the Court
cited Williams as an example of “private individuals who vol-
untarily submitted themselves to tribal regulatory jurisdiction
by the arrangements that they . . . entered into.” 533 U.S. at
372. Elsewhere the Court made clear that Williams was a case
involving “claims brought against tribal defendants.” Id. at
358 n.2; see also Strate, 520 U.S. at 457; Three Affiliated
Tribes v. Wold Eng’g, 467 U.S. 138, 148 (1984). Similarly, in
Strate, the Court was careful to frame the issue as concerning
“the adjudicatory authority of tribal courts over personal
injury actions against defendants who are not tribal mem-
bers.” 520 U.S. at 442 (emphasis added); see also id. (holding
that “tribal courts may not entertain claims against nonmem-
bers arising out of accidents on state highways” (emphasis
added)).
[8] Smith is within the Williams rule. Smith comes to this
proceeding as the plaintiff, in full control of the forum in
which he prosecutes his claims against SKC. Although he did
not have a prior contractual relationship with a tribal member,
he brought suit against SKC, a tribal entity, for its allegedly
tortious acts committed on tribal lands. We do not think that
civil tribal jurisdiction can turn on finely-wrought distinctions
between contract and tort. See W. PAGE KEETON, et al., PROSSER
4
AND KEETON ON TORTS 4-5 (5th ed. 1984). As in Williams, we
4
To the extent our opinion in Boxx v. Long Warrior, 265 F.3d 771, 776
(9th Cir. 2001), states that Montana’s first exception is limited to “com-
mercial dealing, contracts, leases, or other arrangements” and that “such
[other] arrangements also must be of a commercial nature,” we disapprove
the statement. We think the Court’s list in Montana is illustrative rather
than exclusive. Our holding in Boxx—that the tribal courts lack jurisdic-
tion over a suit by an Indian plaintiff against a non-Indian defendant aris-
ing out of an automobile accident on non-Indian lands within the
reservation—is not in question.
122 SMITH v. SALISH KOOTENAI COLLEGE
think it was “immaterial that [Smith] is not [a member]” once
he chose to bring his action in tribal court. Williams, 358 U.S.
at 223.
The Supreme Court has referred to Montana’s principles as
“pertain[ing] to subject-matter, rather than merely personal,
jurisdiction.” Hicks, 533 U.S. at 367 n.8; see also Wilson v.
Marchington, 127 F.3d 805, 813 (9th Cir. 1997). The Court,
however, has never defined Indian tribal “subject matter juris-
diction” with the same precision as we use that term when
speaking of the subject matter jurisdiction vested and circum-
scribed by Article III. In the federal courts, “[s]ubject-matter
jurisdiction . . . functions as a restriction on federal power,
and contributes to the characterization of the federal sover-
eign.” Ins. Corp. of Ire. Ltd. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 702 (1982). As a consequence, parties
to a suit in federal court “may not confer jurisdiction . . . by
stipulation,” California v. LaRue, 409 U.S. 109, 113 n.3
(1972), abrogated on other grounds by 44 Liquormart, Inc. v.
Rhode Island, 517 U.S. 484, 515 (1996), or other “ ‘prior
action or consent of the parties,’ ” Owen Equip. & Erection
Co. v. Kroger, 437 U.S. 365, 377 n.21 (1978) (quoting Am.
Fire & Cas. Co. v. Finn, 341 U.S. 6, 17 (1951)). Indeed, even
though Smith invoked the jurisdiction of the tribal courts, he
may still challenge the court’s subject matter jurisdiction on
appeal. See Am. Fire & Cas., 341 U.S. at 17-18; Capron v.
Van Noorden, 6 U.S. (2 Cranch) 126 (1804).
In contrast to the strictures of federal court jurisdiction,
“tribal adjudicatory jurisdiction over non-members is . . . ill-
defined.” Hicks, 533 U.S. at 376 (Souter, J., concurring)
(internal quotation marks omitted; alteration in original). In
Strate, the Court observed that “in civil matters ‘the existence
and extent of a tribal court’s jurisdiction will require a careful
examination of tribal sovereignty, the extent to which that
sovereignty has been altered, divested, or diminished, as well
as a detailed study of relevant statutes, Executive Branch pol-
icy as embodied in treaties and elsewhere, and administrative
SMITH v. SALISH KOOTENAI COLLEGE 123
or judicial decisions.’ ” 520 U.S. at 449 (quoting Nat’l Farm-
ers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. at 855-
56). More recently, in Hicks, the Court identified this “careful
examination” Hicks, 533 U.S. at 399 (O’Connor, J., concur-
ring), as “a proper balancing of state and tribal interests.” Id.
at 374.
The first Montana exception recognizes that tribes may
exercise jurisdiction over nonmembers of the tribe who enter
into “consensual relationships” with the tribe or its members.
450 U.S. at 565. Nonmembers of a tribe who choose to affili-
ate with the Indians or their tribes in this way may anticipate
tribal jurisdiction when their contracts affect the tribe or its
members. The principle comes with its own limitation: “A
nonmember’s consensual relationship in one area . . . does not
trigger tribal civil authority in another . . . .” Atkinson Trad-
ing, 532 U.S. at 656. Thus, for example, by their mere pres-
ence within a reservation and their “actual or potential receipt
of tribal police, fire, and medical services,” nonmembers
“ha[ve] not consented to the Tribes’ adjudicatory authority.”
Id. at 655. Simply entering into some kind of relationship with
the tribes or their members does not give the tribal courts gen-
eral license to adjudicate claims involving a nonmember. See
Boxx v. Long Warrior, 265 F.3d 771, 776 (9th Cir. 2001) (a
non-Indian’s “socially consensual” relationship with an Indian
cannot serve as the basis for tribal civil jurisdiction).
The Court’s “consensual relationship” analysis under Mon-
tana resembles the Court’s Due Process Clause analysis for
purposes of personal jurisdiction. “The Due Process Clause
protects an individual’s liberty interest in not being subject to
the binding judgments of a forum with which he has estab-
lished no meaningful ‘contacts, ties, or relations,’ ” the “con-
stitutional touchstone” being “whether the defendant
purposefully established ‘minimum contacts’ in the forum
State.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-
72, 474 (1985) (quoting Int’l Shoe Co. v. Washington, 326
U.S. 310, 316, 319 (1945)). Thus, the “ ‘unilateral activity of
124 SMITH v. SALISH KOOTENAI COLLEGE
those who claim some relationship with a nonresident defen-
dant cannot satisfy the requirement of contact with the forum
State;’ ” rather it must be “actions by the defendant himself
that create a ‘substantial connection.’ ” Id. at 474 (quoting
Hanson v. Denckla, 357 U.S. 235, 253 (1958), and McGee v.
Int’l Life Ins. Co., 355 U.S. 220, 223 (1957)). In its due pro-
cess analysis, the Court has emphasized the need for “predict-
ability to the legal system” so that the defendant can
“reasonably anticipate being haled into court.” World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
We refer to the due process cases not to question whether
the exercise of tribal civil jurisdiction is in fact subject matter
jurisdiction, but to reinforce our observation that a jurisdic-
tional analysis that includes a “proper balancing” of state and
tribal interests employs a test more flexible than those defin-
ing the strict notions of subject matter jurisdiction under Arti-
cle III. This is evident in the fact that the Court has held that
“consensual relationships” may create jurisdiction, a holding
inconsistent with federal subject matter jurisdiction, though
perfectly consistent with principles of personal jurisdiction.
See Stock W., Inc. v. Confederated Tribes of the Colville Res-
ervation, 873 F.2d 1221, 1228-29 (9th Cir. 1989) (stating that
“even if the consent of Stock West was adequate to confer
personal jurisdiction onto the tribal court, the question of
whether the tribal court has subject matter jurisdiction over
the case would still not be resolved”; affirming dismissal of
federal suit on grounds of comity). We know of no correlative
doctrine or practice in the federal system that would allow a
party who would not otherwise be subject to a federal court’s
subject matter jurisdiction to enter into a consensual
relationship—for example, through contract or stipulation—
that would confer subject matter jurisdiction on a federal
court.
The play in the margins of tribal civil jurisdiction is further
evident in the Court’s decisions in Iowa Mutual Insurance Co.
v. LaPlante, 480 U.S. 9 (1987), and National Farmers Union
SMITH v. SALISH KOOTENAI COLLEGE 125
Insurance Cos. v. Crow Tribe of Indians, 471 U.S. 845
(1985). In both of those cases, a member of the tribe sued a
nonmember in tribal court. Although the Court has since
observed that it has “never held that a tribal court had juris-
diction over a nonmember defendant,” Hicks, 533 U.S. at 358
n.2, in both cases the Court declined to hold that the tribal
courts lacked jurisdiction over nonmember defendants.
Instead the Court—for reasons of “prudential” exhaustion—
remanded the cases to determine whether “the federal action
should be stayed pending further Tribal Court proceedings or
dismissed.” Iowa Mut., 480 U.S. at 20 n.14. In those cases,
“[r]espect for tribal self-government made it appropriate ‘to
give the tribal court a “full opportunity to determine its own
jurisdiction.” ’ ” Strate, 520 U.S. at 451 (quoting Iowa Mut.,
480 U.S. at 16 (quoting Nat’l Farmers, 471 U.S. at 857)).
Moreover, in those cases the Court expressly declined to
extend the rule of Oliphant v. Suquamish Indian Tribe, 435
U.S. 191 (1978)—that tribal courts do not have criminal juris-
diction to punish non-Indians for offenses committed on the
reservation—to tribal courts’ civil jurisdiction. The Court
explained that, “[i]f we were to apply the Oliphant rule here,
it is plain that any exhaustion requirement would be com-
pletely foreclosed because federal courts would always be the
only forums for civil actions against non-Indians.” Nat’l
Farmers, 471 U.S. at 854. That the Court declined to adopt
the Oliphant rule and instead required exhaustion of jurisdic-
tion challenges in the tribal courts necessarily implies that
tribal courts retain some civil jurisdiction to decide cases
involving nonmembers—“that the answer to the question
whether a tribal court has the power to exercise civil subject-
matter jurisdiction over non-Indians . . . . is not automatically
foreclosed.” Id. at 855; see also Strate, 520 U.S. at 449 (stat-
ing that “tribal courts have more extensive jurisdiction in civil
cases than in criminal proceedings”).
[9] “The power to exercise tribal civil authority over non-
Indians derives not only from the tribe’s inherent powers nec-
essary to self-government and territorial management, but
126 SMITH v. SALISH KOOTENAI COLLEGE
also from the power to exclude nonmembers from tribal
land.” Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d
587, 592 (9th Cir. 1983) (citing Merrion v. Jicarilla Apache
Tribe, 455 U.S. 130, 141-44 (1982)). If the power to exclude
implies the power to regulate those who enter tribal lands, the
jurisdiction that results is a consequence of the deliberate
actions of those who would enter tribal lands to engage in
commerce with the Indians. It is true that “a tribe has no
authority over a nonmember until the nonmember enters tribal
lands or conducts business with the tribe,” Merrion, 455 U.S.
at 142, but we think that no lesser principle should govern
those who voluntarily enter a tribal courtroom seeking com-
pensation from tribal members.5 Indeed, there may be circum-
stances in which a nonmember plaintiff may have no forum
other than the tribal courts in which to bring his claims.6 We
hold that a nonmember who knowingly enters tribal courts for
5
We do not decide whether there are limits to the inherent authority of
tribal courts in cases brought by nonmember plaintiffs. For example, must
a state court recognize a judgment issued in a case brought by a nonmem-
ber plaintiff against a nonmember defendant that bore no relationship to
the tribe or its lands? Of course, in such a case the tribe may circumscribe
the adjudicative jurisdiction of its courts; or, the tribal courts may find that
they have no interest in the claims and may decline jurisdiction. See Per-
kins v. Benguet Consol. Mining Co., 342 U.S. 437, 448 (1952); WILLIAM
C. CANBY, JR., AMERICAN INDIAN LAW 201 (4th ed. 2004).
6
There may be situations in which the tribal court has exclusive jurisdic-
tion over the matter, so that if a nonmember plaintiff cannot bring suit
against a member in tribal courts, there is no forum in which the case may
be heard. See Williams, 358 U.S. at 223 (noting that state court had not
accepted jurisdiction to hear suit between member and nonmember);
Winer v. Penny Enters., Inc., 674 N.W.2d 9 (N.D. 2004) (holding that the
state lacked subject matter jurisdiction to hear a suit by a nonmember
plaintiff against a member defendant arising out of an accident on a state
road within the reservation); see also Three Affiliated Tribes v. Wold
Eng’g, 467 U.S. 138, 148 (1984) (stating that “to the extent that [a prior
North Dakota decision] permitted North Dakota state courts to exercise
jurisdiction over claims by non-Indians against Indians . . . it intruded
impermissibly on tribal self-governance”). We note that in this case there
is concurrent jurisdiction between the tribal and state courts. See Larrivee
v. Morigeau, 602 P.2d 563, 566-71 (Mont. 1979).
SMITH v. SALISH KOOTENAI COLLEGE 127
the purpose of filing suit against a tribal member has, by the
act of filing his claims, entered into a “consensual relation-
ship” with the tribe within the meaning of Montana.7
2
So long as the Indians “remain a ‘separate people, with the
power of regulating their internal and social relations,’ . . . .
[making] their own substantive law in internal matters, and
. . . enforc[ing] that law in their own forums,” tribal courts
will be critical to Indian self-governance. Santa Clara Pueblo
v. Martinez, 436 U.S. 49, 55-56 (1978) (citations omitted)
(quoting United States v. Kagama, 118 U.S. 375, 381-82
(1886)); see Iowa Mut., 480 U.S. at 14. The Tribes’ system of
tort is an important means by which the Tribes regulate the
domestic and commercial relations of its members. Tort lia-
bility has historically been a means for compensating injured
parties and punishing guilty parties for their willful or negli-
gent acts.
Through his suit, Smith asked the Confederated Salish and
Kootenai tribal court to discipline one of their own and order
a tribal entity, SKC, to compensate him for the damages he
7
The Tribes have expressly provided for those who wish to invoke the
tribal court’s jurisdiction:
The Tribal Court of the Confederated Salish and Kootenai Tribes
of the Flathead Reservation, Montana, shall have jurisdiction of
all suits wherein the parties are subject to the jurisdiction of this
Court, and over all other suits which are brought before the Court
by stipulation of parties not otherwise subject to Tribal jurisdic-
tion. In suits brought by non-members against members of the
Tribes or other person subject to the jurisdiction of this Court, the
complainant shall stipulate in his or her complaint that he or she
is subject to the jurisdiction of the Tribal Court for purposes of
any counterclaims which the defendant may have against him or
her.
CSKT Laws Codified, tit. I, ch. 2, § 1-2-104(1), available at http://
www.cskt.org/documents/laws-codified.pdf.
128 SMITH v. SALISH KOOTENAI COLLEGE
suffered allegedly at its hands. The Tribes have a strong inter-
est in regulating the conduct of their members; it is part of
what it means to be a tribal member. The Tribes plainly have
an interest in compensating persons injured by their own;
indeed, in this case, there were two members of the Confeder-
ated Salish and Kootenai tribes who also suffered allegedly
because of SKC’s negligent actions.
[10] If Smith has confidence in the tribal courts, we see no
reason to forbid him from seeking compensation through the
Tribes’ judicial system. Had the jury awarded compensation
to Smith, we have little doubt that we would not have enter-
tained a claim by SKC that the tribal courts lacked jurisdiction
to enter judgment against it and in favor of a tribal nonmem-
ber. Having made that choice, Smith cannot be heard to com-
plain that the judgment was not in his favor.
IV. CONCLUSION
For the forgoing reasons, the judgment of the district court
is
AFFIRMED.
GOULD, Circuit Judge, with whom RYMER and CALLA-
HAN, Circuit Judges, join, dissenting:
I would hold that the Tribal Court of the Confederated
Salish and Kootenai Tribes did not have jurisdiction to adjudi-
cate a claim involving Smith, a nonmember of the tribe. It is
necessary to part company with the majority, for it parts com-
pany with compulsory Supreme Court guidance.
In Montana v. United States, 450 U.S. 544 (1981), the
United States Supreme Court established the fundamental
framework for considering whether a tribal court has jurisdic-
SMITH v. SALISH KOOTENAI COLLEGE 129
tion over a claim involving any nonmember of the tribe.
Under the rule of Montana, federal courts must presume that
tribal courts lack jurisdiction over lawsuits involving non-
members unless one of two exceptions specified by the
Supreme Court applies:
A tribe may regulate, through taxation, licensing, or
other means, the activities of nonmembers who enter
consensual relationships with the tribe or its mem-
bers, through commercial dealing, contracts, leases,
or other arrangements. A tribe may also retain inher-
ent power to exercise civil authority over the conduct
of non-Indians on fee lands within its reservation
when that conduct threatens or has some direct effect
on the political integrity, the economic security, or
the health or welfare of the tribe.
Id. at 565-66 (citations omitted). Because neither exception
applies here, the Tribal Court of the Confederated Salish and
Kootenai Tribes lacks jurisdiction to consider a claim involv-
ing Smith, a nonmember. In reaching a contrary conclusion,
the majority errs and puts our circuit into conflict with recent
Supreme Court jurisprudence on the jurisdiction of tribal
courts over claims involving tribal nonmembers.
I
The majority errs in its holding that the operation of the
Montana framework depends on whether the nonmember
party is a plaintiff or defendant. In particular, the majority
concludes that the case of Williams v. Lee, 358 U.S. 217
(1959), provides for tribal jurisdiction whenever a nonmem-
ber plaintiff brings suit in tribal court against a member defen-
dant. This reasoning cannot be reconciled with the holding of
Montana and the fundamental change it wrought in determin-
ing whether tribal courts have jurisdiction over all claims
involving nonmembers. The plain language of Montana indi-
cates that its framework applies to legal actions involving
130 SMITH v. SALISH KOOTENAI COLLEGE
“nonmembers” without limitation, and this analysis has been
repeated in subsequent Supreme Court cases. Moreover, in
illustrating the application of the Montana framework, the
Court has used Williams to illustrate examples of the Montana
framework, indicating that nonmember plaintiffs, as well as
nonmember defendants, fall within that doctrine. Indeed, the
Supreme Court has stated that in Strate v. A-1 Contractors,
520 U.S. 438 (1997), it applied the Montana framework
“without distinguishing between nonmember plaintiffs and
nonmember defendants.” Nevada v. Hicks, 533 U.S. 353, 358
n.2 (2001). Thus, in claiming that Williams compels an excep-
tion here to the Montana framework, the majority ignores not
only the fundamental shift in tribal court jurisdiction that the
Court implemented in Montana, but also the clear, unqualified
language of recent Supreme Court cases considering the juris-
diction of tribal courts.
Whatever tension there may be between the language of
Williams and the framework that the Supreme Court set forth
in Montana, the Court itself has indicated that Williams is to
be understood and interpreted as a part of the Montana frame-
work, rather than a doctrine entirely separate from it. See
Montana, 450 U.S. at 565-66 (citing Williams as an example
of both exceptions).
II
A
The majority misapplies the holding of Montana in con-
cluding that this case falls within the first Montana exception,
governing “nonmembers who enter consensual relationships
with the tribe or its members, through commercial dealing,
contracts, leases or other arrangements.” 450 U.S. at 565.
Smith’s filing of the cross-claim does not establish the rela-
tionship necessary to invoke the first exception because a
party seeking to invoke tribal court jurisdiction must point not
to a “consensual” court proceeding, but to “another private
SMITH v. SALISH KOOTENAI COLLEGE 131
consensual relationship.” Hicks, 533 U.S. at 359 n.3. The
cases that the Supreme Court has cited as illustrative of the
first Montana exception reinforce the conclusion that the fil-
ing of a lawsuit, as Smith did in this case, is not the type of
consensual, economic relationship that falls within the first
Montana exception. See, e.g., Washington v. Confederated
Tribes of the Colville Indian Reservation, 447 U.S. 134, 153
(1980) (holding that a tribe may tax members entering the res-
ervation to engage in economic activity); Morris v. Hitchcock,
194 U.S. 384, 393 (1904) (allowing a tribal permit tax on
nonmember-owned livestock within the reservation); Buster
v. Wright, 135 F. 947, 950 (8th Cir. 1905) (allowing a tribal
permit tax on nonmembers seeking to conduct business within
the reservation).
The majority suggests that the filing of a claim by a non-
member plaintiff in Williams was cited by the Supreme Court
“as an example of ‘private individuals who voluntarily sub-
mitted themselves to tribal regulatory jurisdiction by the
arrangements that they . . . entered into.’ ” Majority opinion,
ante at 121. But the filing of a civil claim by a nonmember
plaintiff was not given by the Supreme Court as an example
of the first exception. More accurately, the Supreme Court in
Hicks cited Williams as an example of the type of “private
commercial actors” who enter into “consensual relationships,”
which may permit tribal jurisdiction under the first exception
of Montana. Hicks, 533 U.S. at 372. In Williams, the plaintiff
owned a store on the reservation, sold goods to the tribal
member defendants on credit, and sued, in state court, to col-
lect the debt. 358 U.S. at 217-18. It was in these circum-
stances that the Supreme Court explained that the plaintiff
“was on the Reservation and the transaction with an Indian
took place there.” Id. at 223. Smith does not have any of the
attributes of a “private commercial actor” and the filing of a
cross-claim is not a “private consensual relationship” as the
Supreme Court has interpreted the first exception. Hicks, 533
U.S. at 359 n.3; Boxx v. Long Warrior, 265 F.3d 771, 776 (9th
Cir. 2001) (“Under Montana’s first exception, a relationship
132 SMITH v. SALISH KOOTENAI COLLEGE
is of the qualifying kind only if it is both consensual and
entered into through commercial dealing, contracts, leases, or
other arrangements.”).
Although defendant Salish Kootenai College argues that
the underlying relationship between the college and its stu-
dents, including Smith, satisfies the requirement that there be
a “consensual relationship” between the parties, the Supreme
Court has rejected the theory that a relationship so attenuated
from the underlying tort claim may provide the basis for tribal
court jurisdiction. Strate, 520 U.S. at 457; see also Atkinson
Trading Co. v. Shirley, 532 U.S. 645, 656 (2001). Accord-
ingly, there is this point on which I agree with the majority:
“Any contractual relationship Smith had with SKC as a result
of his student status is too remote from his cause of action to
serve as the basis for the Tribes’ civil jurisdiction.” Majority
opinion, ante at 119.
B
The second Montana exception is also inapplicable here.
The assertion of tribal court jurisdiction over a claim brought
by a nonmember plaintiff against a member defendant does
not concern “activity that directly affects the tribe’s political
integrity, economic security, health, or welfare.” Strate, 520
U.S. at 446. More importantly, the Supreme Court has
expressly rejected the argument that allowing nonmembers
access to tribal court for civil litigation purposes falls within
the second Montana exception. Id. at 459 (“Opening the
Tribal Court for [a nonmember’s] optional use is not neces-
sary to protect tribal self-government . . . .” ). Not only is this
Supreme Court language binding on us here, but, as with the
first Montana exception, the cases the Court has used in illus-
trating the second Montana exception are far afield from the
tort claims that Smith sought to have adjudicated in tribal
court. See Boxx, 265 F.3d at 777 (“Even assuming that the
Tribe possesses some regulatory and adjudicatory power over
the sale and consumption of alcohol, the Tribe is not pre-
SMITH v. SALISH KOOTENAI COLLEGE 133
vented in any way from exercising such authority by being
denied the right to adjudicate this garden variety automobile
accident.”)
The Supreme Court has noted that “key” to the proper
application of the second exception is its preface: “Indian
tribes retain their inherent power [to punish tribal offenders,]
to determine tribal membership, to regulate domestic relations
among members, and to prescribe rules of inheritance for
members . . . . But [a tribe’s inherent power does not reach]
beyond what is necessary to protect tribal self-government or
to control internal relations.” Strate, 520 U.S. at 459 (quoting
Montana, 450 U.S. at 564) (alterations in original). Examples
of circumstances that satisfy the second exception include
adoption proceedings, Fisher v. Dist. Ct. of Sixteenth Judicial
Dist. of Mont., 424 U.S. 382, 387 (1976), and a “claim by a
non-Indian merchant seeking payment from tribe members for
goods bought on credit at an on-reservation store,” Strate, 520
U.S. at 458 (describing the facts of Williams, 358 U.S. at
220). Smith may pursue his case in the state forum without
threatening the political integrity or sovereignty of the tribe.
See Strate, 520 U.S. at 459. The majority is incorrect in sug-
gesting that Smith might fit within the second exception given
by Montana.
III
The majority also errs in holding that a party may waive
lack of tribal court jurisdiction, much as a litigant in any court
may waive lack of personal jurisdiction. The Supreme Court
has rejected this reasoning, and has held that the “limitation
on jurisdiction over nonmembers pertains to subject-matter,
rather than merely personal, jurisdiction, since it turns upon
whether the actions at issue in the litigation are regulable by
the tribe.” Hicks, 533 U.S. at 367 n.8. It bears repeating that
the Supreme Court’s statement in footnote 8 of the majority
opinion of Hicks, penned by Justice Scalia and joined by five
other Justices, that Strate’s “limitation on jurisdiction over
134 SMITH v. SALISH KOOTENAI COLLEGE
nonmembers” is a matter of “subject-matter, rather than per-
sonal, jurisdiction” is a holding of the Court, as the majority
here indulges in “imaginative jurisprudence” with the effect
to avoid the implications of this Supreme Court language and
instead to chart a new doctrinal course. Tribal courts, how-
ever, are courts of limited, not general, subject-matter juris-
diction, and one area in which tribal courts presumptively lack
jurisdiction is over claims involving nonmembers of the tribe.
Id. at 366-68. The majority incorrectly adopts an unrestricted
balancing of interests by analogy to the due process standards
applicable to personal jurisdiction. But I cannot avoid con-
cluding that here the majority sails on its own course through
uncharted waters, rather than in the secure channels of Mon-
tana, Strate, and Hicks that have been marked by the Supreme
Court.
There is a potential for injustice in any system that allows
a party to bring a claim, lose on the merits, and then assert
that the court lacked jurisdiction to adjudicate the matter at
all, and doubtless this concern may motivate the majority. The
problem of potential injustice, however, is not unique to the
tribal court setting, but rather is inherent in any system that
contains courts of limited jurisdiction, including the federal
courts. There is a potential injustice in any case where we
vacate a judgment and dismiss for lack of jurisdiction, but it
is a necessary consequence of our law of jurisdiction and the
concept of limited governmental power. Lack of subject-
matter jurisdiction, whether in a federal court or in a tribal
court, renders a judgment null and void, and a party may not
escape from this long-established doctrine by claiming that a
consent can confer jurisdiction on a court. Thus, it is surpris-
ing that the majority places such a dominant weight on the
assent of Smith, rather than upon the required substantive
analysis of the Montana exceptions.
IV
In the broader context of tribal court jurisdiction, voluntary
attendance at a community college cannot be considered a
SMITH v. SALISH KOOTENAI COLLEGE 135
consent to tribal court jurisdiction on tort claims arising out
of that relationship. The majority, moreover, cannot point to
any way in which adjudicating this tort claim in tribal court
is “ ‘necessary to protect tribal self-government or to control
internal relations.’ ” Id. at 359 (quoting Montana, 450 U.S. at
564) (emphasis omitted). It would be wrong to think that
tribal jurisdiction over nonmembers on tort claims is a neces-
sary incident of tribal sovereignty. Neither of the Montana
exceptions, as construed by binding Supreme Court prece-
dent, applies to the situation here and, therefore, the exercise
of tribal jurisdiction over nonmember Smith was not correct.
I respectfully dissent, believing that we are bound by Mon-
tana and its progeny to reverse the judgment of the district
court.