Montana at the Crossroads
17 Pages Posted: 13 Feb 2008
Everyone who works in Indian law is familiar with Montana v. United States. In that case, the Court stripped tribes of territorial sovereignty over civil matters, restricting tribal authority over nonmembers on fee lands to situations of consent or impacts on core tribal governmental interests. Nonetheless, the Court in Montana recognized full tribal authority over nonmembers on tribal lands. What the Court did to tribal sovereign authority in Montana, however, arguably pales beside what the Court may now do to Montana - at least if Justice Souter has his way. In his recent Indian law opinions, Justice Souter has proposed the most sweeping changes to federal Indian law in 25 years, attempting to rewrite Montana to make tribal authority over nonmembers on tribal lands a case-by-case question for the federal courts. Justices Kennedy and Thomas have joined Justice Souter in these opinions. With two new justices now on the Court - Justice Alito and Chief Justice Roberts - it is possible that Justice Souter could pick up the votes of those justices as well. If he does, his view becomes the majority view, and tribal governmental authority over nonmembers is in danger of being reduced to less than a landowner's right to redress trespass.
Keywords: indian law, tribal jurisdiction, tribal sovereignty
JEL Classification: K39
Suggested Citation: Suggested Citation