Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law (2019) / Chapter Skim
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Pages 14-37
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14 NCHRP LRD 76 States,164 the court found the Cree decision not binding in a lawsuit dealing with federal heavy vehicle and diesel fuel taxes, because the "federal standard requires a definite expression of exemption stated plainly in a statute or treaty before any further inquiry is made or any canon of interpretation employed."165 C JURISDICTION IN INDIAN COUNTRY The following sections provide a basic outline for understanding jurisdiction in Indian country.
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NCHRP LRD 76 15 law.176 Most commonly, the law defines "Indian" as a member of an Indian tribe.177 Under 25 USC § 4103 (13)
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16 NCHRP LRD 76 carries out its trust responsibilities through the BIA, which is part of the Department of the Interior. While most trust land is inside reservation boundaries, it can also be found outside reservation boundaries.
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NCHRP LRD 76 17 was no clear and plain congressional intent to apply the law on Indian reservations.201 When discussing what constitutes a specific right reserved to Indians for purposes of this analysis, the court noted as follows: Although the specific Indian right involved usually is based upon a treaty, such rights may also be based upon statutes, executive agreements, and federal common law.
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18 NCHRP LRD 76 areas of Indian country."207 The civil jurisdiction provided does not extend to the full range of state civil regulatory authority.208 For practitioners in Public Law 280 states,209 before proceeding to the preemption and infringement test described below, it is important to determine whether the state law in question is a civil-regulatory law or a criminal-prohibitory law. The test below applies only to a state's civil-regulatory laws whereas Public Law 280 states have broader authority to apply criminal-prohibitory laws.
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NCHRP LRD 76 19 conflicts with federal policies.216 Even if a court finds that a state regulation is not federally preempted, the law still may not be applied on an Indian reservation if it "infringe[s] on the right of reservation Indians to make their own laws and be ruled by them."217 The "two barriers [of infringement and preemption]
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20 NCHRP LRD 76 ‘The touchstone for allocating authority among the various governments has been the concept of ̀ Indian Country,' a legal term delineating the territorial boundaries of federal, state and tribal jurisdiction. Historically, the conduct of Indians and interests in Indian property within Indian Country have been matters of ederal and tribal concern.
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NCHRP LRD 76 21 • Alaska v. Native Village of Venetie Tribal Government235: In this case, the Supreme Court held that the land at issue was not a dependent Indian community and was therefore not Indian country.
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22 NCHRP LRD 76 must be a nexus between the consensual relationship and the regulation imposed. In essence, this means that a consensual relationship does not result in all of the tribe's regulations applying to the nonmember; only those regulations with a sufficient connection to the consensual relationship will apply to the nonmember.
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NCHRP LRD 76 23 following in regard to the "inherent powers" of Indian tribal governments: Thus, in addition to the power to punish tribal offenders, the Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members and to prescribe rules of inheritance for members…. But exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express Congressional delegation….
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24 NCHRP LRD 76 formally into an "open area" and a "closed area," with one feeowned property at issue located in the open area. The other fee-owned property at issue was in the closed area, 97 percent of which was tribal land containing no permanent residents and described as an "undeveloped refuge of cultural and religious significance,"276 with restricted access to nonmembers.
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NCHRP LRD 76 25 ans to make their own laws and be ruled by them…." The Montana rule, therefore, and not its exceptions, applies to this case.286 • Atkinson Trading Co.
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26 NCHRP LRD 76 [citations omitted] , which we have called the "pathmarking case" on the subject.299 The tribe and the United States argued that "since Hick's home and yard are on tribe-owned land within the reservation, the tribe may make its exercise of regulatory authority over nonmembers a condition of nonmembers' entry."300 The Court, however, pointed out that in Oliphant, the Court drew no distinctions based on the status of land in denying tribal criminal jurisdiction over nonmembers.
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NCHRP LRD 76 27 ception.309 Justice O'Connor takes issue with the majority's dismissal of the applicability of this exception, contending that "the majority provides no support for this assertion."310 After an extensive review of existing state authority to enter into consensual relationships with tribes and giving several examples of consensual relationships between state and tribal governments, she asserts that "our case law provides no basis to conclude that such a consensual relationship could never exist,"311 concluding that "[T] here is no need to create a per se rule that forecloses future debate as to whether cooperative agreements, or other forms of official consent, could ever be a basis for tribal jurisdiction."312 • Plains Commerce Bank v.
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28 NCHRP LRD 76 fee lands," 450 U.S., at 565–clearly implying that the general rule of Montana applies to both Indian and non-Indian land. The ownership status of land, in other words, is only one factor to consider in determining whether regulation of the activities of nonmembers is "necessary to protect tribal self-government or to control internal relations." It may sometimes be a dispositive factor.317 As noted in the introduction to this section, the tendency of lower courts has been to apply the Montana rule to all matters involving tribal adjudicatory and regulatory jurisdiction over nonmembers regardless of the land status involved.
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NCHRP LRD 76 29 • Tempest Recovery Services, Inc.
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30 NCHRP LRD 76 Thus, Montana's main rule, which is consistent with the origins of tribal power, precludes the Community from exercising regulatory jurisdiction over the State's employment practices on the right of way owned by the State…. 333As to the issues before us, we hold that the State of Montana and its officials are outside of the regulatory reach of the Community's TERO for work performed on the right of way owned by the State.334 • Nord v.
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NCHRP LRD 76 31 implausible that this omission favored tribal court exhaustion stating: We are at a loss to think of any reason that Congress would have favored tribal exhaustion. Any generalized sense of comity toward non-federal courts is obviously displaced by the provisions for preemption and removal from state courts, which are thus accorded neither jot nor tittle of deference….
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32 NCHRP LRD 76 of Foreign Relations Law of the United States,355for the guiding principles of comity as follows: In synthesizing the traditional elements of comity with the special requirements of Indian law, we conclude that, as a general principle, federal courts should recognize and enforce tribal judgments. However, federal courts must neither recognize nor enforce tribal judgments if: (1)
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NCHRP LRD 76 33 5. Criminal Jurisdiction in Indian Country367 While jurisdictional lines regarding crimes committed in Indian country are largely settled, jurisdictional disputes on Indian reservations often involve questions of overlapping federal, state, and tribal jurisdiction.368 The following terse comment is pertinent: Law enforcement in Indian Country is a complicated matter.
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34 NCHRP LRD 76 Where jurisdiction has not been conferred on the state Offender Victim Jurisdiction Non-Indian Non-Indian State jurisdiction is exclusive of federal and tribal jurisdiction. Non-Indian Indian Federal jurisdiction under 18 U.S.C.
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NCHRP LRD 76 35 The Wisconsin Court, while noting that it found a tradition of traffic regulation by the Menominee Tribe in an earlier case, found that the Lac du Flambeau Band had no motor vehicle code in effect at the time of the offense, and therefore no tradition of self-government in this area. In balancing the federal, state, and tribal interest, the court found that the state had a dominant interest in regulating traffic on Highway 47 for both Indians and other users of public highways.
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36 NCHRP LRD 76 test,"391 applying the test to hold that "driving is generally permitted, subject to regulation [and] clearly does not violate the public criminal policy of the state…[finding]
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NCHRP LRD 76 37 Supreme Court held that the arrest was illegal because it violated tribal sovereignty by circumventing the procedure for extradition from the Navajo Reservation…. This holding was based on wellestablished law that Indian tribes have the right to self-government that may not be impaired or interfered with by the state, absent congressional approval.
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