Allen
County of Lewis v. Allen
Opinion
Lead Opinion
Kleinfeld, J.
This case deals with a tribal court’s jurisdiction over a nonmember in a tort action.
FACTS
Lewis County is a subdivision of the State of Idaho. Much of its territory is within the Nez Perce Indian Reservation. The Nez Perce Tribe, by formal resolution, consented to Idaho’s assumption of concurrent criminal jurisdiction within the reservation over a number of minor offenses, including disturbing the peace.
According to a stipulation of facts filed by John D. Allen and the State of Idaho in Allen’s criminal appeal, a woman (not a party to that case or this one) called the County Sheriff’s Office, and complained of being battered by a bartender. Deputy Sheriff Tom Myers, one of the appellees, went to the Allen house to interview her. Mr. and Mrs. Allen and the woman who called had all been drinking together at the bar. All three were intoxicated, and kept interrupting Deputy Myers as he tried to interview the woman. Eventually Deputy Myers gave up. As he left, the Allens yelled obscenities at him and Mr. Allen shook his fist at him. Deputy Myers told them to quiet down or they would be arrested. Mr. Allen continued to yell at him, so Deputy Myers arrested him for disturbing the…
Concurring Opinion
Boochever, J.
concurring:
This case involves an agreement between two governmental entities, the tribe and the county. I concur in the opinion’s holding that the agreement does not confer tribal court jurisdiction over county personnel present on tribal lands pursuant to that agreement.
The Supreme Court has held that tribal criminal jurisdiction is limited to tribal *1393 members. Oliphant v. Suquamish Indian Tribe, 485 U.S. 191 , 98 S.Ct. 1011 , 55 L.Ed.2d 209 (1978). In defining the scope of tribal civil jurisdiction, however, the Supreme Court has applied both geographic and membership limitations. Strate v. A-l Contractors, — U.S. -, —, 117 S.Ct. 1404 , 1414, 137 L.Ed.2d 661 (1997); Montana v. United States, 450 U.S. 544, 565-66 , 101 S.Ct. 1245, 1258-59 , 67 L.Ed.2d 493 (1981).
I agree that Strate and Montana apply in this case, but I do not believe the question whether tribal civil jurisdiction extends to nonmembers turns simply upon whether “the nonmember of the tribe has a right to be where he is.” Ante, at 4358. That seems at odds with the Supreme Court’s statement of the general rule “that tribes retain considerable control over nonmember conduct on tribal land.” Strate, 520 U.S.…