Hicks

Opinion by Judge FLETCHER; Dissent by Judge RYMER.

This case concerns the jurisdiction of a tribal court over claims against state -officials for tribal common law torts and federal and tribal civil rights violations. The events giving rise to these claims took place on Indian-owned land on a reservation.

The State of Nevada and named state officials appeal the decision of the district court denying them summary judgment and granting summary judgment to Floyd Hicks and the tribal court. The district court held that the tribal court had jurisdiction to hear the suit brought by Hicks against state officials for tribal common law torts and federal and tribal civil rights violations occurring on Indian-owned land. It also held that the tribal court action against the state officials in their individual capacities was not barred by sovereign immunity. It declined to review on the merits the officials’ claims of qualified immunity from suit because they had not been exhausted before the tribal court. We affirm the district court’s holding that the tribal court has jurisdiction, and we affirm its holding that the issue of qualified immunity was not exhausted before the tribal court and…

dissenting:

I part company on subject matter jurisdiction, because I board the train from a different station. As I see it, we have to start with Yellowstone County v. Pease, 96 F.3d 1169 (9th Cir.1996), which applies the framework established in Montana v. United States, 450 U.S. 544 , 101 S.Ct. 1245 , 67 L.Ed.2d 493 (1981), to determine whether there is tribal jurisdiction over civil disputes involving an Indian tribe and non-Indians. Under Montana , the Fallon Tribal Court lacks subject matter jurisdiction over Hicks’s civil actions because in Pease we rejected the proposition that Montana is limited to cases involving fee lands owned by non-Indians. As there is no consensual relationship between the Tribe and Nevada law enforcement officials, and subjecting them to suit in tribal court is not necessary to protect the tribes or their members, neither of the Montana exceptions to this rule is applicable. As the district court held otherwise, I would reverse.

Along with Strate v. A-1 Contractors, 520 U.S. 438 , 117 S.Ct. 1404 , 137 L.Ed.2d 661 (1997), Montana is the leading opinion discussing tribal sovereignty over nonmembers of a tribe. In Montana , the Court noted that…