NEVADA et al. v. HICKS et al.

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353 OCTOBER TERM, 2000
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NEVADA et al. v. HICKS et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 99–1994. Argued March 21, 2001—Decided June 25, 2001
Respondent Hicks is a member of the Fallon Paiute-Shoshone Tribes of
western Nevada and lives on the Tribes’ reservation. After petitioner
state game wardens executed state-court and tribal-court search war-
rants to search Hicks’s home for evidence of an off-reservation crime,
he filed suit in the Tribal Court against, inter alios, the wardens in their
individual capacities and petitioner Nevada, alleging trespass, abuse
of process, and violation of constitutional rights remediable under 42
U. S. C. § 1983. The Tribal Court held that it had jurisdiction over the
tribal tort and federal civil rights claims, and the Tribal Appeals Court
affirmed. Petitioners then sought, in Federal District Court, a declara-
tory judgment that the Tribal Court lacked jurisdiction over the claims.
The District Court granted respondents summary judgment on that
issue and held that the wardens would have to exhaust their qualified
immunity claims in the Tribal Court. In affirming, the Ninth Circuit
concluded that the fact that Hicks’s home is on tribe-owned reservation
land is sufficient to support tribal jurisdiction over civil claims against
nonmembers arising from their activities on that land.
Held:
1. The Tribal Court did not have jurisdiction to adjudicate the war-
dens’ alleged tortious conduct in executing a search warrant for an off-
reservation crime. Pp. 357–366.
(a) As to nonmembers, a tribal court’s inherent adjudicatory au-
thority is at most as broad as the tribe’s regulatory authority. Strate
v. A–1 Contractors, 520 U. S. 438, 453. Pp. 357–358.
(b) The rule that, where nonmembers are concerned, “the exer-
cise of tribal power beyond what is necessary to protect tribal self-
government or to control internal relations . . . cannot survive without
express congressional delegation,” Montana v. United States, 450 U. S.
544, 564, applies to both Indian and non-Indian land. The land’s owner-
ship status is only one factor to be considered, and while that factor
may sometimes be dispositive, tribal ownership is not alone enough to
support regulatory jurisdiction over nonmembers. Pp. 358–360.
(c) Tribal authority to regulate state officers in executing process
related to the off-reservation violation of state laws is not essential to
tribal self-government or internal relations. The State’s interest in

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executing process is considerable, and it no more impairs the Tribes’
self-government than federal enforcement of federal law impairs state
government. The State’s interest is not diminished because this suit
is against officials in their individual capacities. Pp. 360–365.
(d) Congress has not stripped the States of their inherent jurisdic-
tion on reservations with regard to off-reservation violations of state
law. The federal statutory scheme neither prescribes nor suggests that
state officers cannot enter a reservation to investigate or prosecute such
violations. Pp. 365–366.
2. The Tribal Court had no jurisdiction over the § 1983 claims.
Tribal courts are not courts of “general jurisdiction.” The historical
and constitutional assumption of concurrent state-court jurisdiction
over cases involving federal statutes is missing with respect to tribal
courts, and their inherent adjudicative jurisdiction over nonmembers
is at most only as broad as their legislative jurisdiction. Congress has
not purported to grant tribal courts jurisdiction over § 1983 claims,
and such jurisdiction would create serious anomalies under 28 U. S. C.
§ 1441. Pp. 366–369.
3. Petitioners were not required to exhaust their claims in the Tribal
Court before bringing them in the Federal District Court. Because the
rule that tribal courts lack jurisdiction over state officials for causes of
action relating to their performance of official duties is clear, adherence
to the tribal exhaustion requirement would serve no purpose other than
delay and is therefore unnecessary. P. 369.
4. Various arguments to the contrary lack merit. Pp. 370–375.
196 F. 3d 1020, reversed and remanded.
Scalia, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Sou-
ter, J., filed a concurring opinion, in which Kennedy and Thomas, JJ.,
joined, post, p. 375. Ginsburg, J., filed a concurring opinion, post, p. 386.
O’Connor, J., filed an opinion concurring in part and concurring in the
judgment, in which Stevens and Breyer, JJ., joined, post, p. 387. Ste-
vens, J., filed an opinion concurring in the judgment, in which Breyer,
J., joined, post, p. 401.
C. Wayne Howle, Senior Deputy Attorney General of Ne-
vada, argued the cause for petitioners. With him on the
briefs were Frankie Sue Del Papa, Attorney General, Paul
G. Taggart, Deputy Attorney General, and Jeffrey S. Sutton.
S. James Anaya argued the cause for respondents and
filed a brief for respondent Hicks. Kim Jerome Gottschalk

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and Melody McCoy filed a brief for respondents Tribal Court
in and for the Fallon Paiute-Shoshone Tribes et al.
Barbara McDowell argued the cause for the United States
as amicus curiae urging affirmance. With her on the brief
were former Solicitor General Waxman, Assistant Attorney
General Schiffer, Deputy Solicitor General Kneedler, David
C. Shilton, and William B. Lazarus.*
Justice Scalia delivered the opinion of the Court.
This case presents the question whether a tribal court may
assert jurisdiction over civil claims against state officials who
entered tribal land to execute a search warrant against a
tribe member suspected of having violated state law outside
the reservation.
I
Respondent Hicks 1 is one of about 900 members of the
Fallon Paiute-Shoshone Tribes of western Nevada. He re-
*A brief of amici curiae urging reversal was filed for the State of Mon-
tana et al. by Joseph P. Mazurek, Attorney General of Montana, Clay R.
Smith, Solicitor, and Harley R. Harris, Assistant Attorney General, joined
by the Attorneys General for their respective States as follows: Bill Pryor
of Alabama, Janet Napolitano of Arizona, Richard Blumenthal of Con-
necticut, Robert A. Butterworth of Florida, Carla J. Stovall of Kansas,
Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Heidi
Heitkamp of North Dakota, W. A. Drew Edmondson of Oklahoma, Hardy
Myers of Oregon, Sheldon Whitehouse of Rhode Island, Charles M. Con-
don of South Carolina, Mark Barnett of South Dakota, John Cornyn of
Texas, Jan Graham of Utah, James E. Doyle of Wisconsin, and Gay Wood-
house of Wyoming.
Briefs of amici curiae urging affirmance were filed for the Coalition
for Local Sovereignty by Kenneth B. Clark; for the Confederated Tribes
of the Colville Reservation et al. by William R. Perry; for the Pyramid
Lake Paiute Tribe of Nevada et al. by John Fredericks III; and for the
Thlopthlocco Tribal Town et al. by D. Michael McBride III and Steven
K. Balman.
1 Hereinafter, Hicks will be referred to as “respondent.” The Tribal
Court and Judge are also respondents, however, and are included when
the term “respondents” is used.

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sides on the Tribes’ reservation of approximately 8,000 acres,
established by federal statute in 1908, ch. 53, 35 Stat. 85.
In 1990 Hicks came under suspicion of having killed, off
the reservation, a California bighorn sheep, a gross mis-
demeanor under Nevada law, see Nev. Rev. Stat. § 501.376
(1999). A state game warden obtained from state court a
search warrant “SUBJECT TO OBTAINING APPROVAL
FROM THE FALLON TRIBAL COURT IN AND FOR
THE FALLON PAIUTE-SHOSHONE TRIBES.” Accord-
ing to the issuing judge, this tribal-court authorization was
necessary because “[t]his Court has no jurisdiction on the
Fallon Paiute-Shoshone Indian Reservation.” App. G to
Pet. for Cert. 1. A search warrant was obtained from the
tribal court, and the warden, accompanied by a tribal police
officer, searched respondent’s yard, uncovering only the head
of a Rocky Mountain bighorn, a different (and unprotected)
species of sheep.
Approximately one year later, a tribal police officer re-
ported to the warden that he had observed two mounted big-
horn sheep heads in respondent’s home. The warden again
obtained a search warrant from state court; though this
warrant did not explicitly require permission from the
Tribes, see App. F to Pet. for Cert. 2, a tribal-court warrant
was nonetheless secured, and respondent’s home was again
(unsuccessfully) searched by three wardens and additional
tribal officers.
Respondent, claiming that his sheep heads had been dam-
aged, and that the second search exceeded the bounds of the
warrant, brought suit against the Tribal Judge, the tribal
officers, the state wardens in their individual and official
capacities, and the State of Nevada in the Tribal Court in and
for the Fallon Paiute-Shoshone Tribes. (His claims against
all defendants except the state wardens and the State of
Nevada were dismissed by directed verdict and are not at
issue here.) Respondent’s causes of action included trespass
to land and chattels, abuse of process, and violation of civil

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rights—specifically, denial of equal protection, denial of due
process, and unreasonable search and seizure, each reme-
diable under Rev. Stat. § 1979, 42 U. S. C. § 1983. See App.
8–21, 25–29. Respondent later voluntarily dismissed his
case against the State and against the state officials in their
official capacities, leaving only his suit against those officials
in their individual capacities. See id., at 32–35.
The Tribal Court held that it had jurisdiction over the
claims, a holding affirmed by the Tribal Appeals Court. The
state officials and Nevada then filed an action in Federal Dis-
trict Court seeking a declaratory judgment that the Tribal
Court lacked jurisdiction. The District Court granted sum-
mary judgment to respondent on the issue of jurisdiction,
and also held that the state officials would have to exhaust
any claims of qualified immunity in the tribal court. The
Ninth Circuit affirmed, concluding that the fact that respond-
ent’s home is located on tribe-owned land within the reserva-
tion is sufficient to support tribal jurisdiction over civil
claims against nonmembers arising from their activities on
that land. 196 F. 3d 1020 (1999). We granted certiorari,
531 U. S. 923 (2000).
II
In this case, which involves claims brought under both
tribal and federal law, it is necessary to determine, as to
the former, whether the Tribal Court in and for the Fallon
Paiute-Shoshone Tribes has jurisdiction to adjudicate the
alleged tortious conduct of state wardens executing a search
warrant for evidence of an off-reservation crime; and, as to
the latter, whether the Tribal Court has jurisdiction over
claims brought under 42 U. S. C. § 1983. We address the for-
mer question first.
A
The principle of Indian law central to this aspect of the
case is our holding in Strate v. A–1 Contractors, 520 U. S.
438, 453 (1997): “As to nonmembers . . . a tribe’s adjudicative

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jurisdiction does not exceed its legislative jurisdiction . . . .”
That formulation leaves open the question whether a tribe’s
adjudicative jurisdiction over nonmember defendants equals
its legislative jurisdiction.2 We will not have to answer that
open question if we determine that the Tribes in any event
lack legislative jurisdiction in this case. We first inquire,
therefore, whether the Fallon Paiute-Shoshone Tribes—
either as an exercise of their inherent sovereignty, or under
grant of federal authority—can regulate state wardens exe-
cuting a search warrant for evidence of an off-reservation
crime.
Indian tribes’ regulatory authority over nonmembers is
governed by the principles set forth in Montana v. United
States, 450 U. S. 544 (1981), which we have called the “path-
marking case” on the subject, Strate, supra, at 445. In de-
ciding whether the Crow Tribe could regulate hunting and
fishing by nonmembers on land held in fee simple by non-
members, Montana observed that, under our decision in
Oliphant v. Suquamish Tribe, 435 U. S. 191 (1978), tribes
lack criminal jurisdiction over nonmembers. Although, it
continued, “Oliphant only determined inherent tribal au-
thority in criminal matters, the principles on which it relied
support the general proposition that the inherent sovereign
2 In National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845,
855–856 (1985), we avoided the question whether tribes may generally
adjudicate against nonmembers claims arising from on-reservation trans-
actions, and we have never held that a tribal court had jurisdiction over a
nonmember defendant. Typically, our cases have involved claims brought
against tribal defendants. See, e. g., Williams v. Lee, 358 U. S. 217 (1959).
In Strate v. A–1 Contractors, 520 U. S. 438, 453 (1997), however, we as-
sumed that “where tribes possess authority to regulate the activities of
nonmembers, civil jurisdiction over disputes arising out of such activities
presumably lies in the tribal courts,” without distinguishing between non-
member plaintiffs and nonmember defendants. See also Iowa Mut. Ins.
Co. v. LaPlante, 480 U. S. 9, 18 (1987). Our holding in this case is limited
to the question of tribal-court jurisdiction over state officers enforcing
state law. We leave open the question of tribal-court jurisdiction over
nonmember defendants in general.

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powers of an Indian tribe do not extend to the activities
of nonmembers of the tribe.” 450 U. S., at 565 (footnote
omitted). Where nonmembers are concerned, the “exercise
of tribal power beyond what is necessary to protect tribal
self-government or to control internal relations is incon-
sistent with the dependent status of the tribes, and so cannot
survive without express congressional delegation.” Id., at
564 (emphasis added).3
Both Montana and Strate rejected tribal authority to reg-
ulate nonmembers’ activities on land over which the tribe
could not “assert a landowner’s right to occupy and exclude,”
Strate, supra, at 456; Montana, supra, at 557, 564. Re-
spondents and the United States argue that since Hicks’s
home and yard are on tribe-owned land within the reserva-
tion, the Tribe may make its exercise of regulatory authority
over nonmembers a condition of nonmembers’ entry. Not
necessarily. While it is certainly true that the non-Indian
ownership status of the land was central to the analysis in
both Montana and Strate, the reason that was so was not
that Indian ownership suspends the “general proposition”
derived from Oliphant that “the inherent sovereign powers
of an Indian tribe do not extend to the activities of non-
members of the tribe” except to the extent “necessary to
protect tribal self-government or to control internal rela-
tions.” 450 U. S., at 564–565. Oliphant itself drew no dis-
tinctions based on the status of land. And Montana, after
announcing the general rule of no jurisdiction over non-
3 Montana recognized an exception to this rule for tribal regulation
of “the activities of nonmembers who enter consensual relationships
with the tribe or its members, through commercial dealing, contracts,
leases, or other arrangements.” 450 U. S., at 565. Though the wardens
in this case “consensually” obtained a warrant from the Tribal Court be-
fore searching respondent’s home and yard, we do not think this qualifies
as an “other arrangement” within the meaning of this passage. Read in
context, an “other arrangement” is clearly another private consensual
relationship, from which the official actions at issue in this case are far
removed.

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members, cautioned that “[t]o be sure, Indian tribes retain
inherent sovereign power to exercise some forms of civil
jurisdiction over non-Indians on their reservations, even
on non-Indian 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 rela-
tions.” It may sometimes be a dispositive factor. Hitherto,
the absence of tribal ownership has been virtually conclusive
of the absence of tribal civil jurisdiction; with one minor ex-
ception, we have never upheld under Montana the extension
of tribal civil authority over nonmembers on non-Indian land.
Compare, e. g., Merrion v. Jicarilla Apache Tribe, 455 U. S.
130, 137, 142 (1982) (tribe has taxing authority over tribal
lands leased by nonmembers), with Atkinson Trading Co. v.
Shirley, 532 U. S. 645, 659 (2001) (tribe has no taxing author-
ity over nonmembers’ activities on land held by nonmembers
in fee); but see Brendale v. Confederated Tribes and Bands
of Yakima Nation, 492 U. S. 408, 443–444, 458–459 (1989)
(opinions of Stevens, J., and Blackmun, J.) (tribe can impose
zoning regulation on that 3.1% of land within reservation
area closed to public entry that was not owned by the tribe).
But the existence of tribal ownership is not alone enough to
support regulatory jurisdiction over nonmembers.
We proceed to consider, successively, the following ques-
tions: whether regulatory jurisdiction over state officers in
the present context is “necessary to protect tribal self-
government or to control internal relations,” and, if not,
whether such regulatory jurisdiction has been congression-
ally conferred.
B
In Strate, we explained that what is necessary to protect
tribal self-government and control internal relations can be
understood by looking at the examples of tribal power to

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which Montana referred: tribes have authority “[to punish
tribal offenders,] to determine tribal membership, to regu-
late domestic relations among members, and to prescribe
rules of inheritance for members,” 520 U. S., at 459 (brackets
in original), quoting Montana, supra, at 564. These exam-
ples show, we said, that Indians have “ ‘the right . . . to make
their own laws and be ruled by them,’ ” 520 U. S., at 459,
quoting Williams v. Lee, 358 U. S. 217, 220 (1959). See also
Fisher v. District Court of Sixteenth Judicial Dist. of Mont.,
424 U. S. 382, 386 (1976) (per curiam) (“In litigation between
Indians and non-Indians arising out of conduct on an Indian
reservation, resolution of conflicts between the jurisdiction
of state and tribal courts has depended, absent a govern-
ing Act of Congress, on whether the state action infringed
on the right of reservation Indians to make their own laws
and be ruled by them” (internal quotation marks and citation
omitted)). Tribal assertion of regulatory authority over
nonmembers must be connected to that right of the Indians
to make their own laws and be governed by them. See Mer-
rion, supra, at 137, 142 (“The power to tax is an essential
attribute of Indian sovereignty because it is a necessary in-
strument of self-government,” at least as to “tribal lands”
on which the tribe “has . . . authority over a nonmember”).
Our cases make clear that the Indians’ right to make their
own laws and be governed by them does not exclude all state
regulatory authority on the reservation. State sovereignty
does not end at a reservation’s border. Though tribes are
often referred to as “sovereign” entities, it was “long ago”
that “the Court departed from Chief Justice Marshall’s view
that ‘the laws of [a State] can have no force’ within reser-
vation boundaries. Worcester v. Georgia, 6 Pet. 515, 561
(1832),” White Mountain Apache Tribe v. Bracker, 448 U. S.
136, 141 (1980).4 “Ordinarily,” it is now clear, “an Indian
4 Our holding in Worcester must be considered in light of the fact that
“[t]he 1828 treaty with the Cherokee Nation . . . guaranteed the Indians
their lands would never be subjected to the jurisdiction of any State or

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reservation is considered part of the territory of the State.”
U. S. Dept. of Interior, Federal Indian Law 510, and n. 1
(1958), citing Utah & Northern R. Co. v. Fisher, 116 U. S. 28
(1885); see also Organized Village of Kake v. Egan, 369 U. S.
60, 72 (1962).
That is not to say that States may exert the same degree
of regulatory authority within a reservation as they do with-
out. To the contrary, the principle that Indians have the
right to make their own laws and be governed by them re-
quires “an accommodation between the interests of the
Tribes and the Federal Government, on the one hand, and
those of the State, on the other.” Washington v. Confeder-
ated Tribes of Colville Reservation, 447 U. S. 134, 156 (1980);
see also id., at 181 (opinion of Rehnquist, J.). “When on-
reservation conduct involving only Indians is at issue, state
law is generally inapplicable, for the State’s regulatory inter-
est is likely to be minimal and the federal interest in encour-
aging tribal self-government is at its strongest.” Bracker,
supra, at 144. When, however, state interests outside the
reservation are implicated, States may regulate the activi-
ties even of tribe members on tribal land, as exemplified by
our decision in Confederated Tribes. In that case, Indians
were selling cigarettes on their reservation to nonmembers
from off reservation, without collecting the state cigarette
tax. We held that the State could require the Tribes to col-
lect the tax from nonmembers, and could “impose at least
‘minimal’ burdens on the Indian retailer to aid in enforcing
and collecting the tax,” 447 U. S., at 151. It is also well es-
tablished in our precedent that States have criminal juris-
diction over reservation Indians for crimes committed (as
was the alleged poaching in this case) off the reservation.
See Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148–
149 (1973).
Territory.” Organized Village of Kake v. Egan, 369 U. S. 60, 71 (1962);
cf. Williams v. Lee, 358 U. S., at 221–222 (comparing Navajo treaty to the
Cherokee treaty in Worcester).

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While it is not entirely clear from our precedent whether
the last mentioned authority entails the corollary right to
enter a reservation (including Indian-fee lands) for enforce-
ment purposes, several of our opinions point in that di-
rection. In Confederated Tribes, we explicitly reserved the
question whether state officials could seize cigarettes held
for sale to nonmembers in order to recover the taxes due.
See 447 U. S., at 162. In Utah & Northern R. Co., however,
we observed that “[i]t has . . . been held that process of
[state] courts may run into an Indian reservation of this kind,
where the subject-matter or controversy is otherwise within
their cognizance,” 116 U. S., at 31.5 Shortly thereafter, we
considered, in United States v. Kagama, 118 U. S. 375 (1886),
whether Congress could enact a law giving federal courts
jurisdiction over various common-law, violent crimes com-
mitted by Indians on a reservation within a State. We ex-
pressed skepticism that the Indian Commerce Clause could
justify this assertion of authority in derogation of state ju-
risdiction, but ultimately accepted the argument that the law
“does not interfere with the process of the State courts
within the reservation, nor with the operation of State
laws upon white people found there. Its effect is
confined to the acts of an Indian of some tribe, of a
criminal character, committed within the limits of the
reservation.
“It seems to us that this is within the competency of
Congress.” Id., at 383.
The Court’s references to “process” in Utah & Northern R.
Co. and Kagama, and the Court’s concern in Kagama over
possible federal encroachment on state prerogatives, sug-
5 Though Utah & Northern R. Co. did not state what it meant by a
“reservation of this kind,” the context makes clear that it meant a res-
ervation not excluded from the territory of a State by treaty. See, e. g.,
Harkness v. Hyde, 98 U. S. 476, 478 (1879); The Kansas Indians, 5 Wall.
737, 739–741 (1867).

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gest state authority to issue search warrants in cases such
as the one before us. (“Process” is defined as “any means
used by a court to acquire or exercise its jurisdiction over a
person or over specific property,” Black’s Law Dictionary
1084 (5th ed. 1979), and is equated in criminal cases with a
warrant, id., at 1085.) It is noteworthy that Kagama recog-
nized the right of state laws to “operat[e] . . . upon [non-
Indians] found” within a reservation, but did not similarly
limit to non-Indians or the property of non-Indians the scope
of the process of state courts. This makes perfect sense,
since, as we explained in the context of federal enclaves, the
reservation of state authority to serve process is necessary
to “prevent [such areas] from becoming an asylum for fugi-
tives from justice.” Fort Leavenworth R. Co. v. Lowe, 114
U. S. 525, 533 (1885).6
We conclude today, in accordance with these prior state-
ments, that tribal authority to regulate state officers in exe-
cuting process related to the violation, off reservation, of
state laws is not essential to tribal self-government or in-
ternal relations—to “the right to make laws and be ruled
by them.” The State’s interest in execution of process is
considerable, and even when it relates to Indian-fee lands
it no more impairs the tribe’s self-government than fed-
eral enforcement of federal law impairs state government.
Respondents argue that, even conceding the State’s general
interest in enforcing its off-reservation poaching law on the
reservation, Nevada’s interest in this suit is minimal, be-
cause it is a suit against state officials in their individual
6 That this risk is not purely hypothetical is demonstrated by Arizona
ex rel. Merrill v. Turtle, 413 F. 2d 683 (CA9 1969), a case in which the
Navajo Tribal Court refused to extradite a member to Oklahoma because
tribal law forbade extradition except to three neighboring States. The
Ninth Circuit held that Arizona (where the reservation was located) could
not enter the reservation to seize the suspect for extradition since (among
other reasons) this would interfere with tribal self-government, id., at
685–686.

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capacities. We think, however, that the distinction between
individual and official capacity suits is irrelevant. To para-
phrase our opinion in Tennessee v. Davis, 100 U. S. 257, 263
(1880), which upheld a federal statute permitting federal
officers to remove to federal court state criminal proceed-
ings brought against them for their official actions, a State
“can act only through its officers and agents,” and if a
tribe can “affix penalties to acts done under the immediate
direction of the [state] government, and in obedience to its
laws,” “the operations of the [state] government may at any
time be arrested at the will of the [tribe].” Cf. Anderson v.
Creighton, 483 U. S. 635, 638 (1987) (“[P]ermitting damages
suits against government officials can entail substantial so-
cial costs, including the risk that fear of personal monetary
liability and harassing litigation will unduly inhibit officials
in the discharge of their duties”).
C
The States’ inherent jurisdiction on reservations can of
course be stripped by Congress, see Draper v. United States,
164 U. S. 240, 242–243 (1896). But with regard to the juris-
diction at issue here that has not occurred. The Govern-
ment’s assertion that “[a]s a general matter, although state
officials have jurisdiction to investigate and prosecute crimes
on a reservation that exclusively involve non-Indians, . . .
they do not have jurisdiction with respect to crimes in-
volving Indian perpetrators or Indian victims,” Brief for
United States as Amicus Curiae 12–13, n. 7, is misleading.
The statutes upon which it relies, see id., at 18–19, show that
the last half of the statement, like the first, is limited to
“crimes on a reservation.” Sections 1152 and 1153 of
Title 18, which give United States and tribal criminal law
generally exclusive application, apply only to crimes com-
mitted in Indian country; Public Law 280, codified at 18
U. S. C. § 1162, which permits some state jurisdiction as an
exception to this rule, is similarly limited. And 25 U. S. C.

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§ 2804, which permits federal-state agreements enabling
state law enforcement agents to act on reservations, applies
only to deputizing them for the enforcement of federal or
tribal criminal law. Nothing in the federal statutory scheme
prescribes, or even remotely suggests, that state officers
cannot enter a reservation (including Indian-fee land) to
investigate or prosecute violations of state law occurring off
the reservation. To the contrary, 25 U. S. C. § 2806 affirms
that “the provisions of this chapter alter neither . . . the law
enforcement, investigative, or judicial authority of any . . .
State, or political subdivision or agency thereof . . . .”
III
We turn next to the contention of respondent and the
Government that the tribal court, as a court of general ju-
risdiction, has authority to entertain federal claims under
§ 1983.7 It is certainly true that state courts of “general
jurisdiction” can adjudicate cases invoking federal statutes,
such as § 1983, absent congressional specification to the con-
trary. “Under [our] system of dual sovereignty, we have
consistently held that state courts have inherent authority,
and are thus presumptively competent, to adjudicate claims
arising under the laws of the United States,” Tafflin v.
Levitt, 493 U. S. 455, 458 (1990). That this would be the
case was assumed by the Framers, see The Federalist No. 82,
pp. 492–493 (C. Rossiter ed. 1961). Indeed, that state courts
could enforce federal law is presumed by Article III of the
7 Justice Stevens questions why it is necessary to consider tribal-
court jurisdiction over § 1983 claims, since we have already determined
that “tribal courts lack . . . jurisdiction over ‘state wardens executing a
search warrant for evidence of an off-reservation crime,’ ” post, at 402, n. 1
(opinion concurring in judgment). It is because the latter determination
is based upon Strate’s holding that tribal-court jurisdiction does not exceed
tribal regulatory jurisdiction; and because that holding contained a sig-
nificant qualifier: “[a]bsent congressional direction enlarging tribal-court
jurisdiction,” 520 U. S., at 453. We conclude (as we must) that § 1983 is
not such an enlargement.

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Constitution, which leaves to Congress the decision whether
to create lower federal courts at all. This historical and con-
stitutional assumption of concurrent state-court jurisdiction
over federal-law cases is completely missing with respect to
tribal courts.
Respondents’ contention that tribal courts are courts of
“general jurisdiction” is also quite wrong. A state court’s
jurisdiction is general, in that it “lays hold of all subjects
of litigation between parties within its jurisdiction, though
the causes of dispute are relative to the laws of the most
distant part of the globe.” Id., at 493. Tribal courts, it
should be clear, cannot be courts of general jurisdiction in
this sense, for a tribe’s inherent adjudicative jurisdiction
over nonmembers is at most only as broad as its legislative
jurisdiction. See supra, at 357–359.8 It is true that some
statutes proclaim tribal-court jurisdiction over certain ques-
tions of federal law. See, e. g., 25 U. S. C. § 1911(a) (authority
to adjudicate child custody disputes under the Indian Child
Welfare Act of 1978); 12 U. S. C. § 1715z–13(g)(5) ( jurisdic-
tion over mortgage foreclosure actions brought by the Sec-
retary of Housing and Urban Development against reserva-
8 Justice Stevens argues that “[a]bsent federal law to the contrary,
the question whether tribal courts are courts of general jurisdiction is
fundamentally one of tribal law.” Post, at 402 (emphasis deleted). The
point of our earlier discussion is that Strate is “federal law to the con-
trary.” Justice Stevens thinks Strate cannot fill that role, because it
“merely concerned the circumstances under which tribal courts can exert
jurisdiction over claims against nonmembers,” post, at 403, n. 3. But
Strate’s 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.
One can of course say that even courts of limited subject-matter jurisdic-
tion have general jurisdiction over those subjects that they can adjudicate
(in the present case, jurisdiction over claims pertaining to activities by
nonmembers that can be regulated)—but that makes the concept of gen-
eral jurisdiction meaningless, and is assuredly not the criterion that would
determine whether these courts received authority to adjudicate § 1983
actions.

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tion homeowners). But no provision in federal law provides
for tribal-court jurisdiction over § 1983 actions.
Furthermore, tribal-court jurisdiction would create seri-
ous anomalies, as the Government recognizes, because the
general federal-question removal statute refers only to re-
moval from state court, see 28 U. S. C. § 1441. Were § 1983
claims cognizable in tribal court, defendants would inexpli-
cably lack the right available to state-court § 1983 defend-
ants to seek a federal forum. The Government thinks the
omission of reference to tribal courts in § 1441 unprob-
lematic. Since, it argues, “[i]t is doubtful . . . that Congress
intended to deny tribal court defendants the right given
state court defendants to elect a federal forum for the ad-
judication of causes of action under federal law,” we should
feel free to create that right by permitting the tribal-
court defendant to obtain a federal-court injunction against
the action, effectively forcing it to be refiled in federal
court. Brief for United States as Amicus Curiae 25–26.
The sole support for devising this extraordinary remedy is
El Paso Natural Gas Co. v. Neztsosie, 526 U. S. 473 (1999),
where we approved a similar procedure with regard to
claims under the Price-Anderson Act brought in tribal court.
In Neztsosie, however, the claims were not initially federal
claims, but Navajo tort claims that the Price-Anderson Act
provided “shall be deemed to be . . . action[s] arising under”
42 U. S. C. § 2210; there was little doubt that the tribal court
had jurisdiction over such tort claims, see 526 U. S., at 482,
n. 4. And for the propriety of the injunction in Neztsosie,
we relied not on § 1441, but on the removal provision of the
Price-Anderson Act, 42 U. S. C. § 2210(n)(2). Although, like
§ 1441, that provision referred only to removal from state
courts, in light of the Act’s detailed and distinctive provisions
for the handling of “nuclear incident” cases in federal court,
see 526 U. S., at 486, we thought it clear Congress envisioned
the defendant’s ability to get into federal court in all in-

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stances. Not only are there missing here any distinctive
federal-court procedures, but in order even to confront the
question whether an unspecified removal power exists, we
must first attribute to tribal courts jurisdiction that is not
apparent. Surely the simpler way to avoid the removal
problem is to conclude (as other indications suggest anyway)
that tribal courts cannot entertain § 1983 suits.
IV
The last question before us is whether petitioners were
required to exhaust their jurisdictional claims in Tribal
Court before bringing them in Federal District Court. See
National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S.
845, 856–857 (1985). In National Farmers Union we rec-
ognized exceptions to the exhaustion requirement, where
“an assertion of tribal jurisdiction is motivated by a de-
sire to harass or is conducted in bad faith, . . . or where the
action is patently violative of express jurisdictional prohibi-
tions, or where exhaustion would be futile because of the
lack of an adequate opportunity to challenge the court’s juris-
diction,” id., at 856, n. 21 (internal quotation marks omitted).
None of these exceptions seems applicable to this case, but
we added a broader exception in Strate: “[w]hen . . . it is
plain that no federal grant provides for tribal governance
of nonmembers’ conduct on land covered by Montana’s main
rule,” so the exhaustion requirement “would serve no pur-
pose other than delay.” 520 U. S., at 459–460, and n. 14.
Though this exception too is technically inapplicable, the
reasoning behind it is not. Since it is clear, as we have
discussed, that tribal courts lack jurisdiction over state
officials for causes of action relating to their performance
of official duties, adherence to the tribal exhaustion require-
ment in such cases “would serve no purpose other than
delay,” and is therefore unnecessary.

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V
Finally, a few words in response to the concurrence of
Justice O’Connor, which is in large part a dissent from
the views expressed in this opinion.9
The principal point of the concurrence is that our reason-
ing “gives only passing consideration to the fact that the
state officials’ activities in this case occurred on land owned
and controlled by the Tribes,” post, at 392. According to
Justice O’Connor, “that factor is not prominent in the
Court’s analysis,” post, at 395. Even a cursory reading of
our opinion demonstrates that this is not so. To the con-
trary, we acknowledge that tribal ownership is a factor
in the Montana analysis, and a factor significant enough
that it “may sometimes be . . . dispositive,” supra, at 360.
We simply do not find it dispositive in the present case,
when weighed against the State’s interest in pursuing off-
reservation violations of its laws. See supra, at 364 (con-
cluding that “[t]he State’s interest in execution of process is
considerable” enough to outweigh the tribal interest in self-
government “even when it relates to Indian-fee lands”).
The concurrence is of course free to disagree with this judg-
ment; but to say that failure to give tribal ownership deter-
9 Justice O’Connor claims we have gone beyond the scope of the ques-
tions presented in this case by determining whether the Tribes could regu-
late the state game warden’s actions on tribal land, because this is a case
about tribal “civil adjudicatory jurisdiction.” See post, at 397 (opinion
concurring in part and concurring in judgment). But the third question
presented, see Pet. for Writ of Cert. i, is as follows: “Is the rule of [Mon-
tana], creating a presumption against tribal court jurisdiction over non-
members, limited to cases in which a cause of action against a nonmember
arises on lands within a reservation which are not controlled by the tribe?”
Montana dealt only with regulatory authority, and is tied to adjudicatory
authority by Strate, which held that the latter at best tracks the former.
As is made clear in the merits briefing, petitioners’ argument is that the
Tribes lacked adjudicatory authority because they lacked regulatory au-
thority over the game wardens. See Brief for Petitioners 36–44.

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minative effect “fails to consider adequately the Tribe’s in-
herent sovereign interests in activities on their land,” post,
at 401 (opinion of O’Connor, J.), is an exaggeration.
The concurrence marshals no authority and scant reason-
ing to support its judgment that tribal authority over state
officers pursuing, on tribe-owned land, off-reservation viola-
tions of state law may be “necessary to protect tribal self-
government or to control internal relations.” Montana, 450
U. S., at 564–565. Self-government and internal relations
are not directly at issue here, since the issue is whether
the Tribes’ law will apply, not to their own members, but
to a narrow category of outsiders. And the concurrence
does not try to explain how allowing state officers to pursue
off-reservation violation of state law “threatens or has some
direct effect on the political integrity, the economic security,
or the health or welfare of the tribe,” id., at 566. That the
actions of these state officers cannot threaten or affect those
interests is guaranteed by the limitations of federal con-
stitutional and statutory law to which the officers are fully
subject.
The concurrence exaggerates and distorts the conse-
quences of our conclusion, supra, at 359, n. 3, that the term
“other arrangements” in a passage from Montana referred
to other “private consensual” arrangements—so that it did
not include the state officials’ obtaining of tribal warrants
in the present case. That conclusion is correct, as a fuller
exposition of the passage from Montana makes clear:
“To be sure, Indian tribes retain inherent sovereign
power to exercise some forms of civil jurisdiction over
non-Indians on their reservations, even on non-Indian
fee lands. A tribe may regulate, through taxation, li-
censing, or other means, the activities of nonmembers
who enter consensual relationships with the tribe or its
members, through commercial dealing, contracts, leases,
or other arrangements.” 450 U. S., at 565.

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The Court (this is an opinion, bear in mind, not a statute)
obviously did not have in mind States or state officers act-
ing in their governmental capacity; it was referring to pri-
vate individuals who voluntarily submitted themselves to
tribal regulatory jurisdiction by the arrangements that they
(or their employers) entered into. This is confirmed by the
fact that all four of the cases in the immediately following
citation involved private commercial actors. See Confed-
erated Tribes, 447 U. S., at 152 (nonmember purchasers of
cigarettes from tribal outlet); Williams v. Lee, 358 U. S., at
217 (general store on the Navajo reservation); Morris v.
Hitchcock, 194 U. S. 384 (1904) (ranchers grazing livestock
and horses on Indian lands “under contracts with individual
members of said tribes”); Buster v. Wright, 135 F. 947, 950
(CA8 1905) (challenge to the “permit tax” charged by a tribe
to nonmembers for “the privilege . . . of trading within the
borders”).
The concurrence concludes from this brief footnote discus-
sion that we would invalidate express or implied cessions of
regulatory authority over nonmembers contained in state-
tribal cooperative agreements, including those pertaining
to mutual law enforcement assistance, tax administration as-
sistance, and child support and paternity matters. See post,
at 393–394. This is a great overreaching. The footnote
does not assert that “a consensual relationship [between a
tribe and a State] could never exist,” post, at 394 (opinion of
O’Connor, J.). It merely asserts that “other arrangements”
in the passage from Montana does not include state officers’
obtaining of an (unnecessary) tribal warrant. Whether con-
tractual relations between State and tribe can expressly or
impliedly confer tribal regulatory jurisdiction over nonmem-
bers—and whether such conferral can be effective to confer
adjudicative jurisdiction as well—are questions that may
arise in another case, but are not at issue here.
Another exaggeration is the concurrence’s contention that
we “give nonmembers freedom to act with impunity on tribal

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land based solely on their status as state law enforcement
officials,” post, at 401 (opinion of O’Connor, J.). We do not
say state officers cannot be regulated; we say they cannot
be regulated in the performance of their law enforcement
duties. Action unrelated to that is potentially subject to
tribal control depending on the outcome of Montana analy-
sis. Moreover, even where the issue is whether the officer
has acted unlawfully in the performance of his duties, the
tribe and tribe members are of course able to invoke the
authority of the Federal Government and federal courts
(or the state government and state courts) to vindicate con-
stitutional or other federal- and state-law rights.
We must comment upon the final paragraphs of Part II
of the concurrence’s opinion—which bring on stage, in classic
fashion, a deus ex machina to extract, from the seemingly
insoluble difficulties that the prior writing has created, a
happy ending. The concurrence manages to have its cake
and eat it too—to hand over state law enforcement officers
to the jurisdiction of tribal courts and yet still assure that
the officers’ traditional immunity (and hence the State’s law
enforcement interest) will be protected—by simply announc-
ing “that in order to protect government officials, immu-
nity claims should be considered in reviewing tribal court ju-
risdiction.” Post, at 401 (opinion of O’Connor, J.). What
wonderful magic. Without so much as a citation (none is
available) the concurrence declares the qualified immunity
inquiry to be part of the jurisdictional inquiry, thus bring-
ing it within the ken of the federal court at the outset of the
case. There are two problems with this declaration. The
first is that it is not true. There is no authority whatever
for the proposition that absolute- and qualified-immunity de-
fenses pertain to the court’s jurisdiction—much less to the
tribe’s regulatory jurisdiction, which is what is at issue here.
(If they did pertain to the court’s jurisdiction, they would
presumably be nonwaivable. Cf. Idaho v. Coeur d’Alene
Tribe of Idaho, 521 U. S. 261, 267 (1997).) And the second

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problem is that without first determining whether the tribe
has regulatory jurisdiction, it is impossible to know which
“immunity defenses” the federal court is supposed to con-
sider. The tribe’s law on this subject need not be the same
as the State’s; indeed, the tribe may decide (as did the com-
mon law until relatively recently) that there is no immu-
nity defense whatever without a warrant. See California
v. Acevedo, 500 U. S. 565, 581 (1991) (Scalia, J., concurring
in judgment). One wonders whether, deprived of its deus
ex machina, the concurrence would not alter the conclusion
it reached in Part I of its opinion, and agree with us that
a proper balancing of state and tribal interests would give
the Tribes no jurisdiction over state officers pursuing off-
reservation violations of state law.
Finally, it is worth observing that the concurrence’s reso-
lution would, for the first time, hold a non-Indian subject to
the jurisdiction of a tribal court. The question (which we
have avoided) whether tribal regulatory and adjudicatory
jurisdiction are coextensive is simply answered by the con-
currence in the affirmative. As Justice Souter’s separate
opinion demonstrates, it surely deserves more considered
analysis.
* * *
Because the Fallon Paiute-Shoshone Tribes lacked legis-
lative authority to restrict, condition, or otherwise regulate
the ability of state officials to investigate off-reservation vio-
lations of state law, they also lacked adjudicative authority
to hear respondent’s claim that those officials violated tribal
law in the performance of their duties. Nor can the Tribes
identify any authority to adjudicate respondent’s § 1983
claim. And since the lack of authority is clear, there is no
need to exhaust the jurisdictional dispute in tribal court.
State officials operating on a reservation to investigate off-
reservation violations of state law are properly held account-
able for tortious conduct and civil rights violations in either
state or federal court, but not in tribal court.

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Souter, J., concurring
The judgment of the Court of Appeals is reversed, and
the case remanded for further proceedings consistent with
our opinion.
It is so ordered.
Justice Souter, with whom Justice Kennedy and
Justice Thomas join, concurring.
I agree that the Fallon Paiute-Shoshone Tribal Court had
no jurisdiction to entertain Hicks’s claims against the peti-
tioning state officers here, and I join the Court’s opinion.
While I agree with the Court’s analysis as well as its con-
clusion, I would reach that point by a different route. Like
the Court, I take Montana v. United States, 450 U. S. 544
(1981), to be the source of the first principle on tribal-court
civil jurisdiction, see Atkinson Trading Co. v. Shirley, 532
U. S. 645, 659 (2001) (Souter, J., concurring). But while the
Court gives emphasis to measuring tribal authority here
in light of the State’s interest in executing its own legal
process to enforce state law governing off-reservation con-
duct, ante, at 360–365, I would go right to Montana’s rule
that a tribe’s civil jurisdiction generally stops short of non-
member defendants, 450 U. S., at 565, subject only to two
exceptions, one turning on “consensual relationships,” the
other on respect for “the political integrity, the economic
security, or the health or welfare of the tribe,” id., at
566. 1
Montana applied this presumption against tribal jurisdic-
tion to nonmember conduct on fee land within a reservation;
I would also apply it where, as here, a nonmember acts on
tribal or trust land, and I would thus make it explicit that
land status within a reservation is not a primary juris-
1 The virtue of the Court’s approach is in laying down a rule that would
be unquestionably applicable even if in a future case the state officials
issuing and executing state process happened to be tribal members (which
they apparently are not here).

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dictional fact, but is relevant only insofar as it bears on the
application of one of Montana’s exceptions to a particular
case. Insofar as I rest my conclusion on the general juris-
dictional presumption, it follows for me that, although the
holding in this case is “limited to the question of tribal-court
jurisdiction over state officers enforcing state law,” ante, at
358, n. 2, one rule independently supporting that holding
(that as a general matter “the inherent sovereign powers of
an Indian tribe do not extend to the activities of nonmembers
of the tribe,” ante, at 359) is not so confined.
I
Petitioners are certainly correct that “[t]ribal adjudicatory
jurisdiction over nonmembers is . . . ill-defined,” Reply Brief
for Petitioners 16, since this Court’s own pronouncements
on the issue have pointed in seemingly opposite directions.
Compare, e. g., Santa Clara Pueblo v. Martinez, 436 U. S. 49,
65 (1978) (“Tribal courts have repeatedly been recognized as
appropriate forums for the exclusive adjudication of dis-
putes affecting important personal and property interests
of both Indians and non-Indians”), and United States v.
Mazurie, 419 U. S. 544, 557 (1975) (“Indian tribes are unique
aggregations possessing attributes of sovereignty over both
their members and their territory”), with, e. g., Oliphant v.
Suquamish Tribe, 435 U. S. 191, 209 (1978) (“ ‘[T]he limi-
tation upon [tribes’] sovereignty amounts to the right of
governing every person within their limits except them-
selves’ ” (quoting Fletcher v. Peck, 6 Cranch 87, 147 (1810))).
Oliphant, however, clarified tribal courts’ criminal juris-
diction (in holding that they had none as to non-Indians),
and that decision is now seen as a significant step on the
way to Montana, “the pathmarking case concerning tribal
civil authority over nonmembers,” Strate v. A–1 Contractors,
520 U. S. 438, 445 (1997). The path marked best is the rule

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that, at least as a presumptive matter, tribal courts lack civil
jurisdiction over nonmembers.2
To be sure, Montana does not of its own force resolve
the jurisdictional issue in this case. There, while recog-
nizing that the parties had “raised broad questions about the
power of the Tribe to regulate [the conduct of] non-Indians
on the reservation,” we noted that the issue before us was a
“narrow one.” 450 U. S., at 557. Specifically, we said, the
question presented concerned only the power of an Indian
tribe to regulate the conduct of nonmembers “on reserva-
tion land owned in fee by nonmembers of the Tribe.” Ibid.
Here, it is undisputed, the acts complained of occurred on
reservation land “controlled by a tribe.” Pet. for Cert. 24.
But although the distinction between tribal and fee land
(and, accordingly, between Montana and this case) surely
exists, it does not in my mind call for a different result.
I see the legal principles that animated our presumptive
preclusion of tribal jurisdiction in Montana as counseling
a similar rule as to regulatory, and hence adjudicatory, juris-
diction here.
In Montana, the Court began its discussion of tribes’ “in-
herent authority” by noting that “the Indian tribes have lost
many of the attributes of sovereignty.” 450 U. S., at 563.
2 The Court in Montana v. United States, 450 U. S. 544 (1981), referred
to “nonmembers” and “non-Indians” interchangeably. In response to our
decision in Duro v. Reina, 495 U. S. 676 (1990), in which we extended
the rule of Oliphant to deny tribal courts criminal jurisdiction over non-
member Indians (i. e., Indians who are members of other tribes), Congress
passed a statute expressly granting tribal courts such jurisdiction, see
105 Stat. 646, 25 U. S. C. § 1301(2). Because, here, we are concerned with
the extent of tribes’ inherent authority, and not with the jurisdiction
statutorily conferred on them by Congress, the relevant distinction, as
we implicitly acknowledged in Strate, is between members and non-
members of the tribe. In this case, nonmembership means freedom from
tribal-court jurisdiction, since none of the petitioning state officers is
identified as an Indian of any tribe.

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In “distinguish[ing] between those inherent powers retained
by the tribe and those divested,” id., at 564, the Court relied
on a portion of the opinion in United States v. Wheeler, 435
U. S. 313, 326 (1978), from which it quoted at length:
“ ‘The areas in which . . . implicit divestiture of sov-
ereignty has been held to have occurred are those in-
volving the relations between an Indian tribe and non-
members of the tribe. . . .
“ ‘These limitations rest on the fact that the depend-
ent status of Indian tribes within our territorial jurisdic-
tion is necessarily inconsistent with their freedom in-
dependently to determine their external relations. But
the powers of self-government, including the power to
prescribe and enforce internal criminal laws, are of a
different type. They involve only the relations among
members of a tribe. Thus, they are not such powers as
would necessarily be lost by virtue of a tribe’s depend-
ent status.’ ” Montana, supra, at 564.
The emphasis in these passages (supplied by the Montana
Court, not by me) underscores the distinction between tribal
members and nonmembers, and seems clearly to indicate,
without restriction to the criminal law, that the inherent
authority of the tribes has been preserved over the for-
mer but not the latter. In fact, after quoting Wheeler, the
Court invoked Oliphant, supra, which (as already noted)
had imposed a per se bar to tribal-court criminal jurisdiction
over non-Indians, even with respect to conduct occurring on
tribal land. The Montana Court remarked that, “[t]hough
Oliphant only determined inherent tribal authority in crimi-
nal matters, the principles on which it relied” support a more
“general proposition” applicable in civil cases as well, namely,
that “the inherent sovereign powers of an Indian tribe do
not extend to the activities of nonmembers of the tribe.”
450 U. S., at 565. Accordingly, the Court in Montana re-
peatedly pressed the member-nonmember distinction, reiter-

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ating at one point, for example, that while “the Indian tribes
retain their inherent power to determine tribal member-
ship, to regulate domestic relations among members, and
to prescribe rules of inheritance for members,” the “exer-
cise of tribal power beyond what is necessary to protect
tribal self-government or to control internal relations is in-
consistent with the dependent status of the tribes, and so
cannot survive without express congressional delegation.”
Id., at 564; cf. Oliphant v. Schlie, 544 F. 2d 1007, 1015 (CA9
1976) (Kennedy, J., dissenting) (“The concept of sovereignty
applicable to Indian tribes need not include the power to
prosecute nonmembers. This power, unlike the ability to
maintain law and order on the reservation and to exclude
nondesireable nonmembers, is not essential to the tribe’s
identity or its self-governing status”), rev’d sub nom. Oli-
phant v. Suquamish Tribe, 435 U. S. 191 (1978).
To Montana’s “general proposition” confining the subjects
of tribal jurisdiction to tribal members, the Court appended
two exceptions that could support tribal jurisdiction in some
civil matters. First, a tribe may “regulate . . . the activities
of nonmembers who enter consensual relationships with the
tribe or its members, through commercial dealing, contracts,
leases, or other arrangements.” And second, a tribe may
regulate nonmember conduct that “threatens or has some
direct effect on the political integrity, the economic security,
or the health or welfare of the tribe.” 450 U. S., at 565–566.3
But unless one of these exceptions applies, the “general
3 Thus, it is true that tribal courts’ “civil subject-matter jurisdiction
over non-Indians . . . is not automatically foreclosed, as an extension
of Oliphant would require.” National Farmers Union Ins. Cos. v. Crow
Tribe, 471 U. S. 845, 855 (1985). “Montana did not extend the full Oli-
phant rationale to the civil jurisdictional question—which would have
completely prohibited civil jurisdiction over nonmembers.” A–1 Con-
tractors v. Strate, 76 F. 3d 930, 937 (CA8 1996). Instead, “the [Montana]
Court found that the tribe retained some civil jurisdiction over non-
members, which the Court went on to describe in the Montana excep-
tions.” Ibid.

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proposition” governs and the tribe’s civil jurisdiction does
“not extend to the activities of nonmembers of the tribe.”
In Strate, we expressly extended the Montana frame-
work, originally applied as a measure of tribes’ civil regu-
latory jurisdiction, to limit tribes’ civil adjudicatory juris-
diction. We repeated that “absent express authorization by
federal statute or treaty, tribal jurisdiction over the con-
duct of nonmembers exists only in limited circumstances.”
520 U. S., at 445. Quoting Montana, we further explained
that “[i]n the main” (that is, subject to the two exceptions
outlined in the Montana opinion), “ ‘the inherent sovereign
powers of an Indian tribe’—those powers a tribe enjoys
apart from express provision by treaty or statute—‘do not
extend to the activities of nonmembers of the tribe.’ ” 520
U. S., at 445–446. Equally important for purposes here was
our treatment of the following passage from Iowa Mut. Ins.
Co. v. LaPlante, 480 U. S. 9 (1987), which seemed to state a
more expansive jurisdictional position and which had been
cited by the Tribal Court in Strate in support of broad
tribal-court civil jurisdiction over nonmembers:
“ ‘Tribal authority over the activities of non-Indians
on reservation lands is an important part of tribal sover-
eignty. See Montana v. United States, 450 U. S. 544,
565–566 (1981); Washington v. Confederated Tribes
of Colville Indian Reservation, 447 U. S. 134, 152–153
(1980); Fisher v. District Court [of Sixteenth Judicial
Dist. of Mont.], 424 U. S. [382,] 387–389 [(1976)]. Civil
jurisdiction over such activities presumptively lies in the
tribal courts unless affirmatively limited by a specific
treaty provision or federal statute . . . .’ [480 U. S.], at
18.” 520 U. S., at 451.
The Strate petitioners fastened upon the statement that
“civil jurisdiction over” the activities of nonmembers on
reservation lands “presumptively lies in the tribal courts.”
But we resisted the overbreadth of the Iowa Mutual dictum.

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We said that the passage “scarcely supports the view that
the Montana rule does not bear on tribal-court adjudica-
tory authority in cases involving nonmember defendants,”
520 U. S., at 451–452, and stressed the “three informative
citations” accompanying the statement, which mark the true
contours of inherent tribal authority over nonmembers:
“The first citation points to the passage in Montana in
which the Court advanced ‘the general proposition that
the inherent sovereign powers of an Indian tribe do not
extend to the activities of nonmembers of the tribe,’
with two prime exceptions. The case cited second is
Washington v. Confederated Tribes of Colville Reserva-
tion, a decision the Montana Court listed as illustrative
of the first Montana exception . . . . The third case
noted in conjunction with the Iowa Mutual statement
is Fisher v. District Court of Sixteenth Judicial Dist.
of Mont., a decision the Montana Court cited in sup-
port of the second Montana exception . . . .” Id., at 452
(citations omitted).
Accordingly, in explaining and distinguishing Iowa Mutual,
we confirmed in Strate what we had indicated in Montana:
that as a general matter, a tribe’s civil jurisdiction does
not extend to the “activities of non-Indians on reservation
lands,” Iowa Mutual, supra, at 18, and that the only such
activities that trigger civil jurisdiction are those that fit
within one of Montana’s two exceptions.
After Strate, it is undeniable that a tribe’s remaining
inherent civil jurisdiction to adjudicate civil claims arising
out of acts committed on a reservation depends in the first
instance on the character of the individual over whom ju-
risdiction is claimed, not on the title to the soil on which
he acted. The principle on which Montana and Strate were
decided (like Oliphant before them) looks first to human
relationships, not land records, and it should make no dif-
ference per se whether acts committed on a reservation

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occurred on tribal land or on land owned by a nonmember
individual in fee. It is the membership status of the un-
consenting party, not the status of real property, that counts
as the primary jurisdictional fact.4
II
Limiting tribal-court civil jurisdiction this way not only
applies the animating principle behind our precedents, but
fits with historical assumptions about tribal authority and
serves sound policy. As for history, Justice Stevens has
observed that “[i]n sharp contrast to the tribes’ broad pow-
ers over their own members, tribal powers over nonmembers
have always been narrowly confined.” Merrion v. Jicarilla
Apache Tribe, 455 U. S. 130, 171 (1982) (dissenting opinion).
His point is exemplified by the early treaties with those
who became known as the five civilized Tribes, which trea-
ties “specifically granted the right of self-government to the
tribes [but] specifically excluded jurisdiction over nonmem-
bers.” Id., at 171, n. 21 (citing Treaty with the Cherokees,
Art. 5, 7 Stat. 481 (1835), Treaty with the Choctaws and
Chickasaws, Art. 7, 11 Stat. 612 (1855), and Treaty with the
Creeks and Seminoles, Art. 15, 11 Stat. 703 (1856)). In a
similar vein, referring to 19th-century federal statutes set-
ting the jurisdiction of the courts of those five Tribes, this
Court said in In re Mayfield, 141 U. S. 107, 116 (1891), that
the “general object” of such measures was “to vest in the
courts of the [Indian] nation jurisdiction of all controversies
between Indians, or where a member of the nation is the
only party to the proceeding, and to reserve to the courts
4 Thus, it is not that land status is irrelevant to a proper Montana cal-
culus, only that it is not determinative in the first instance. Land status,
for instance, might well have an impact under one (or perhaps both) of the
Montana exceptions. See Atkinson Trading Co. v. Shirley, 532 U. S. 645,
659–660 (2001) (Souter, J., concurring); cf. White Mountain Apache Tribe
v. Bracker, 448 U. S. 136, 151 (1980) (“[T]here is a significant geographic
component to tribal sovereignty”).

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of the United States jurisdiction of all actions to which its
own citizens are parties on either side.” And, in fact, to
this very day, general federal law prohibits Courts of Indian
Offenses (tribunals established by regulation for tribes that
have not organized their own tribal court systems) from ex-
ercising jurisdiction over unconsenting nonmembers. Such
courts have “[c]ivil jurisdiction” only of those actions arising
within their territory “in which the defendant is an Indian,
and of all other suits between Indians and non-Indians which
are brought before the court by stipulation of the parties.”
25 CFR § 11.103(a) (2000).
A rule generally prohibiting tribal courts from exercising
civil jurisdiction over nonmembers, without looking first to
the status of the land on which individual claims arise, also
makes sense from a practical standpoint, for tying tribes’
authority to land status in the first instance would pro-
duce an unstable jurisdictional crazy quilt. Because land on
Indian reservations constantly changes hands (from tribes
to nonmembers, from nonmembers to tribal members, and
so on), a jurisdictional rule under which land status was dis-
positive would prove extraordinarily difficult to administer
and would provide little notice to nonmembers, whose sus-
ceptibility to tribal-court jurisdiction would turn on the most
recent property conveyances. Cf. Hodel v. Irving, 481 U. S.
704, 718 (1987) (noting the difficulties that attend the “ex-
treme fractionation of Indian lands”).
The ability of nonmembers to know where tribal juris-
diction begins and ends, it should be stressed, is a matter
of real, practical consequence given “[t]he special nature of
[Indian] tribunals,” Duro v. Reina, 495 U. S. 676, 693 (1990),
which differ from traditional American courts in a number
of significant respects. To start with the most obvious one,
it has been understood for more than a century that the Bill
of Rights and the Fourteenth Amendment do not of their
own force apply to Indian tribes. See Talton v. Mayes, 163
U. S. 376, 382–385 (1896); F. Cohen, Handbook of Federal In-

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Souter, J., concurring
dian Law 664–665 (1982 ed.) (hereinafter Cohen) (“Indian
tribes are not states of the union within the meaning of the
Constitution, and the constitutional limitations on states do
not apply to tribes”). Although the Indian Civil Rights Act
of 1968 (ICRA) makes a handful of analogous safeguards
enforceable in tribal courts, 25 U. S. C. § 1302, “the guaran-
tees are not identical,” Oliphant, 435 U. S., at 194,5 and there
is a “definite trend by tribal courts” toward the view that
they “ha[ve] leeway in interpreting” the ICRA’s due process
and equal protection clauses and “need not follow the U. S.
Supreme Court precedents ‘jot-for-jot,’ ” Newton, Tribal
Court Praxis: One Year in the Life of Twenty Indian Tribal
Courts, 22 Am. Indian L. Rev. 285, 344, n. 238 (1998). In any
event, a presumption against tribal-court civil jurisdiction
squares with one of the principal policy considerations un-
derlying Oliphant, namely, an overriding concern that citi-
zens who are not tribal members be “protected . . . from
unwarranted intrusions on their personal liberty,” 435 U. S.,
at 210.
Tribal courts also differ from other American courts (and
often from one another) in their structure, in the substan-
tive law they apply, and in the independence of their judges.
Although some modern tribal courts “mirror American
courts” and “are guided by written codes, rules, procedures,
and guidelines,” tribal law is still frequently unwritten,
being based instead “on the values, mores, and norms of a
tribe and expressed in its customs, traditions, and practices,”
and is often “handed down orally or by example from one
generation to another.” Melton, Indigenous Justice Sys-
tems and Tribal Society, 79 Judicature 126, 130–131 (1995).
The resulting law applicable in tribal courts is a complex
“mix of tribal codes and federal, state, and traditional
law,” National American Indian Court Judges Assn., Indian
5 See also Cohen 667 (“Many significant constitutional limitations on
federal and state governments are not included in the [ICRA]”).

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Courts and the Future 43 (1978), which would be unusually
difficult for an outsider to sort out.
Hence the practical importance of being able to antici-
pate tribal jurisdiction by reference to a fact more readily
knowable than the title status of a particular plot of land.
One further consideration confirms the point. It is gener-
ally accepted that there is no effective review mechanism
in place to police tribal courts’ decisions on matters of non-
tribal law, since tribal-court judgments based on state or
federal law can be neither removed nor appealed to state
or federal courts. Cf., e. g., 28 U. S. C. § 1441(a) (removal of
“any civil action brought in a State court of which the dis-
trict courts of the United States have original jurisdiction”);
§ 1257(a) (Supreme Court review of “judgments or decrees
rendered by the highest court of a State” where federal law
implicated). The result, of course, is a risk of substantial
disuniformity in the interpretation of state and federal law,
a risk underscored by the fact that “[t]ribal courts are often
‘subordinate to the political branches of tribal govern-
ments,’ ” Duro, supra, at 693 (quoting Cohen 334–335).
III
There is one loose end. The panel majority in the Ninth
Circuit held that “the Montana presumption against tribal
court jurisdiction does not apply in this case.” 196 F. 3d
1020, 1028 (1999). Since we have held otherwise, should we
now remand for application of the correct law? There is
room for reasonable disagreement on this point, see post,
at 396 (O’Connor, J., concurring in part and concurring in
judgment), but on balance I think a remand is unnecessary.
The Court’s analysis of opposing state and tribal interests
answers the opinion of the Ninth Circuit majority; in sub-
stance, the issues subject to the Court of Appeals’s prin-
cipal concern have been considered here. My own focus on
the Montana presumption was, of course, addressed by the
panel (albeit unsympathetically), and the only question that

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might now be considered by the Circuit on my separate
approach to the case is the applicability of the second Mon-
tana exception. But as Judge Rymer indicated in her dis-
sent, the uncontested fact that the Tribal Court itself au-
thorized service of the state warrant here bars any serious
contention that the execution of that warrant adversely af-
fected the Tribes’ political integrity. See 196 F. 3d, at 1033–
1034. Thus, even if my alternative rationale exclusively
governed the outcome, remand would be pure formality.
Justice Ginsburg, concurring.
I join the Court’s opinion. As the Court plainly states,
and as Justice Souter recognizes, the “holding in this
case is limited to the question of tribal-court jurisdiction
over state officers enforcing state law.” Ante, at 358, n. 2
(opinion of the Court); ante, at 376 (Souter, J., concurring).
The Court’s decision explicitly “leave[s] open the question
of tribal-court jurisdiction over nonmember defendants in
general,” ante, at 358, n. 2, including state officials engaged
on tribal land in a venture or frolic of their own, see ante,
at 373 (a state officer’s conduct on tribal land “unrelated to
[performance of his law-enforcement duties] is potentially
subject to tribal control”).
I write separately only to emphasize that Strate v. A–1
Contractors, 520 U. S. 438 (1997), similarly deferred larger
issues. Strate concerned a highway accident on a right-
of-way over tribal land. For nonmember governance pur-
poses, the accident site was equivalent to alienated, non-
Indian land. Id., at 456. We held that the nonmember
charged with negligent driving in Strate was not amenable
to the Tribe’s legislative or adjudicatory authority. But we
“express[ed] no view on the governing law or proper forum”
for cases arising out of nonmember conduct on tribal land.
Id., at 442. The Court’s opinion, as I understand it, does not
reach out definitively to answer the jurisdictional questions
left open in Strate.

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Opinion of O’Connor, J.
Justice O’Connor, with whom Justice Stevens and
Justice Breyer join, concurring in part and concurring in
the judgment.
The Court holds that a tribe has no power to regulate the
activities of state officials enforcing state law on land owned
and controlled by the tribe. The majority’s sweeping opin-
ion, without cause, undermines the authority of tribes to
“ ‘make their own laws and be ruled by them.’ ” Strate v.
A–1 Contractors, 520 U. S. 438, 459 (1997) (quoting Williams
v. Lee, 358 U. S. 217, 220 (1959)). I write separately be-
cause Part II of the Court’s decision is unmoored from our
precedents.
I
A
Today, the Court finally resolves that Montana v. United
States, 450 U. S. 544 (1981), governs a tribe’s civil jurisdic-
tion over nonmembers regardless of land ownership. Ante,
at 358–360. This is done with little fanfare, but the holding
is significant because we have equivocated on this question
in the past.
In Montana, we held that the Tribe in that case could not
regulate the hunting and fishing activities of nonmembers
on nontribal land located within the geographical boundaries
of the reservation. 450 U. S., at 557. We explained that
the Tribe’s jurisdiction was limited to two instances—where
a consensual relationship exists between the Tribe and non-
members, or where jurisdiction was necessary to preserve
tribal sovereignty—and we concluded that neither instance
applied. Id., at 565–567; ante, at 358–360.
Given the facts of Montana, it was not clear whether the
status of the persons being regulated, or the status of the
land where the hunting and fishing occurred, led the Court
to develop Montana’s jurisdictional rule and its exceptions.
In subsequent cases, we indicated that the nonmember
status of the person being regulated determined Montana’s

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application, see, e. g., South Dakota v. Bourland, 508 U. S.
679, 694–695, and n. 15 (1993), while in other cases we in-
dicated that the fee simple status of the land triggered ap-
plication of Montana, see, e. g., Strate v. A–1 Contractors,
supra, at 454, and n. 8. This is the Court’s first opportunity
in recent years to consider whether Montana applies to non-
member activity on land owned and controlled by the tribe.
Cf. Atkinson Trading Co. v. Shirley, 532 U. S. 645 (2001).
The Court of Appeals concluded that Montana did not
apply in this case because the events in question occurred
on tribal land. 196 F. 3d 1020, 1028 (CA9 1999). Because
Montana is our best source of “coherence in the various
manifestations of the general law of tribal jurisdiction over
non-Indians,” Atkinson Trading Co. v. Shirley, supra, at 659
(Souter, J., concurring), the majority is quite right that
Montana should govern our analysis of a tribe’s civil juris-
diction over nonmembers both on and off tribal land. I part
company with the majority, however, because its reasoning
is not faithful to Montana or its progeny.
B
Montana’s principles bear repeating. In Montana, the
Court announced the “general proposition that the inherent
sovereign powers of an Indian tribe do not extend to the
activities of nonmembers of the tribe.” 450 U. S., at 565.
The Court further explained, however, that tribes do retain
some attributes of sovereignty:
“To be sure, Indian tribes retain inherent sovereign
power to exercise some forms of civil jurisdiction over
non-Indians on their reservations, even on non-Indian
fee lands. A tribe may regulate, through taxation, li-
censing, or other means, the activities of nonmembers
who enter consensual relationships with the tribe or its
members, through commercial dealing, contracts, leases,
or other arrangements. A tribe may also retain inher-
ent power to exercise civil authority over the conduct of

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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 565–566 (citations
omitted).
We concluded in that case that hunting and fishing by non-
members on reservation land held in fee by nonmembers
of the Tribe did not fit within either of the “Montana ex-
ceptions” that permit jurisdiction over nonmembers. The
hunting and fishing in that case did not involve a consensual
relationship and did not threaten the security of the Tribe.
Id., at 557. We “readily agree[d]” with the Court of Appeals
in that case, however, that the Tribe “may prohibit nonmem-
bers from hunting or fishing on land belonging to the Tribe
or held by the United States in trust for the Tribe,” and that
“if the Tribe permits nonmembers to fish or hunt on such
lands, it may condition their entry by charging a fee or estab-
lishing . . . limits.” Ibid. In the cases that followed, we
uniformly regarded land ownership as an important factor in
determining the scope of a tribe’s civil jurisdiction.
We have held that the tribe’s power to impose taxes on
nonmembers doing business on tribal or trust lands of the
reservation is “an essential attribute of Indian sovereignty
because it is a necessary instrument of self-government
and territorial management.” Merrion v. Jicarilla Apache
Tribe, 455 U. S. 130, 137 (1982). We held that the tribe’s
power to tax derived from two distinct sources: the tribe’s
power of self-government and the tribe’s power to exclude.
Id., at 137, 149. Recognizing that tribes are “ ‘unique ag-
gregations possessing attributes of sovereignty,’ ” however,
we further explained that the power to tax was “subject to
constraints not imposed on other governmental entities” in
that the Federal Government could take away that power.
Id., at 140–141.
At issue in Brendale v. Confederated Tribes and Bands
of Yakima Nation, 492 U. S. 408 (1989), was whether Tribes

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had the authority to zone particular tracts of land within
the boundaries of the reservation owned by nonmembers.
Although no opinion garnered a majority, Members of the
Court determined the Tribes’ zoning authority by consider-
ing the Tribes’ power to exclude and the Tribes’ sovereign
interests in preserving the Tribes’ political integrity, eco-
nomic security, and health and welfare. Id., at 423–425,
428–432 (White, J., joined by Rehnquist, C. J., and Scalia
and Kennedy, JJ.); id., at 433–435, 443–444 (Stevens, J.,
joined by O’Connor, J.); id., at 454–455 (Blackmun, J., joined
by Brennan and Marshall, JJ.). In the end, the Tribes’
power to zone each parcel of land turned on the extent to
which the Tribes maintained ownership and control over the
areas in which the parcels were located. Id., at 438–444,
444–447 (Stevens, J., joined by O’Connor, J.).
In South Dakota v. Bourland, supra, we were again con-
fronted with a Tribe’s attempt to regulate hunting and fish-
ing by nonmembers on lands located within the boundaries
of the Tribe’s reservation, but not owned by the tribe. In
Bourland, the United States had acquired the land at issue
from the Tribe under the Flood Control Act and the Chey-
enne River Act. Id., at 689–690. We concluded that these
congressional enactments deprived the Tribe of “any former
right of absolute and exclusive use and occupation of the con-
veyed lands.” Id., at 689. We considered that Montana’s
exceptions might support tribal jurisdiction over nonmem-
bers, but decided to leave that issue for consideration on re-
mand. 508 U. S., at 695–696.
We have also applied Montana to decide whether a tribal
court had civil jurisdiction to adjudicate a lawsuit arising out
of a traffic accident on a state highway that passed through a
reservation. Strate v. A–1 Contractors, 520 U. S. 438 (1997).
We explained that “Montana delineated—in a main rule and
exceptions—the bounds of the power tribes retain to exer-
cise ‘forms of civil jurisdiction’ ” over nonmembers. Be-
cause our prior cases did not involve jurisdiction of tribal

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courts, we clarified that “[a]s to nonmembers . . . a tribe’s
adjudicative jurisdiction does not exceed its legislative ju-
risdiction.” Id., at 453. Again, we considered the status
of the land where the nonmember activities occurred. In
accord with Montana, we “readily agree[d]” “that tribes re-
tain considerable control over nonmember conduct on tribal
land.” 520 U. S., at 454. But we determined that the right-
of-way acquired for the State’s highway rendered that land
equivalent to “alienated, non-Indian land.” Ibid. Applying
Montana, we concluded that the defendant’s allegedly tor-
tious conduct did not constitute a consensual relationship
that gave rise to tribal court jurisdiction. 520 U. S., at 456–
457. We also found that “[n]either regulatory nor adjudica-
tory authority over the state highway accident . . . is needed
to preserve ‘the right of reservation Indians to make their
own laws and be ruled by them.’ ” Id., at 459.
Just last month, we applied Montana in a case concerning
a Tribe’s authority to tax nonmember activity occurring on
non-Indian fee land. Atkinson Trading Co. v. Shirley, 532
U. S. 645 (2001). In that case, the Tribe argued that it had
the power to tax under Merrion, supra. We disagreed, dis-
tinguishing Merrion on the ground that the Tribe’s inherent
power to tax “only extended to ‘transactions occurring on
trust lands and significantly involving a tribe or its mem-
bers.’ ” 532 U. S., at 653 (quoting Merrion, supra, at 137).
We explained that “Merrion involved a tax that only applied
to activity occurring on the reservation, and its holding is
therefore easily reconcilable with the Montana-Strate line
of authority, which we deem to be controlling.” 532 U. S.,
at 653.
Montana and our other cases concerning tribal civil juris-
diction over nonmembers occupy a middle ground between
our cases that provide for nearly absolute tribal sovereignty
over tribe members, see generally Williams v. Lee, 358 U. S.,
at 218–223, and our rule that tribes have no inherent crimi-
nal jurisdiction over nonmembers, see Oliphant v. Suqua-

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Opinion of O’Connor, J.
mish Tribe, 435 U. S. 191 (1978). Montana recognizes that
tribes retain sovereign interests in activities that occur on
land owned and controlled by the tribe, and provides princi-
ples that guide our determination of whether particular ac-
tivities by nonmembers implicate these sovereign interests
to a degree that tribal civil jurisdiction is appropriate.
C
In this case, the Court purports to apply Montana—in
keeping with the above line of cases—to determine whether
the Tribes, “as an exercise of their inherent sovereignty, . . .
can regulate state wardens executing a search warrant for
evidence of an off-reservation crime.” Ante, at 358. The
Court’s reasoning suffers from two serious flaws: It gives
only passing consideration to the fact that the state officials’
activities in this case occurred on land owned and controlled
by the Tribes, and it treats as dispositive the fact that the
nonmembers in this case are state officials.
Under the first Montana exception, a tribe may exercise
regulatory jurisdiction where a nonmember enters into a
consensual relationship with the tribe. 450 U. S., at 565.
The majority in this case dismisses the applicability of this
exception in a footnote, concluding that any consensual re-
lationship between tribes and nonmembers “clearly” must
be a “private” consensual relationship “from which the offi-
cial actions at issue in this case are far removed.” Ante, at
359, n. 3.
The majority provides no support for this assertion. The
Court’s decision in Montana did not and could not have re-
solved the complete scope of the first exception. We could
only apply the first exception to the activities presented in
that case, namely, hunting and fishing by nonmembers on
land owned in fee simple by nonmembers. 450 U. S., at 557.
To be sure, Montana is “an opinion . . . not a statute,” and
therefore it seems inappropriate to speak of what the Mon-

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tana Court intended the first exception to mean in future
cases. See ante, at 372.
State governments may enter into consensual relation-
ships with tribes, such as contracts for services or shared
authority over public resources. Depending upon the na-
ture of the agreement, such relationships could provide offi-
cial consent to tribal regulatory jurisdiction. Some States
have formally sanctioned the creation of state-tribal agree-
ments. See, e. g., Mont. Code Ann. § 18–11–101 et seq. (1997)
(State-Tribal Cooperative Agreements Act); Neb. Rev. Stat.
§ 13–1502 et seq. (1997) (State-Tribal Cooperative Agree-
ments Act); Okla. Stat., Tit. 74, § 1221 (Supp. 2001) (authoriz-
ing Governor to enter into cooperative agreements on behalf
of the State to address issues of mutual interest). In addi-
tion, there are a host of cooperative agreements between
tribes and state authorities to share control over tribal
lands, to manage public services, and to provide law enforce-
ment. See, e. g., Cal. Health & Safety Code Ann. § 25198.1
et seq. (West 1992 and Supp. 2001) (cooperative agreements
for hazardous waste management); Cal. Pub. Res. Code Ann.
§ 44201 et seq. (West 1996) (cooperative agreements for solid
waste management); Minn. Stat. § 626.90 et seq. (Supp. 2001)
(authorizing cooperative agreements between state law en-
forcement and tribal peace officers); Nev. Rev. Stat. § 277.058
(Supp. 1999) (cooperative agreements concerning sites of
archeological or historical significance); N. M. Stat. Ann.
§ 9–11–12.1 (Supp. 2000) (cooperative agreements for tax
administration); Ore. Rev. Stat. § 25.075 (1999) (cooperative
agreements concerning child support and paternity matters);
Wash. Rev. Code § 26.25.010 et seq. (1999) (cooperative agree-
ments for child welfare); § 79.60.010 (cooperative agreements
among federal, state, and tribal governments for timber and
forest management).
Whether a consensual relationship between the Tribes and
the State existed in this case is debatable, compare Brief for
Petitioners 36–38 with Brief for Respondents Tribal Court

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in and for the Fallon Paiute-Shoshone Tribes et al. 23–25,
but our case law provides no basis to conclude that such a
consensual relationship could never exist. Without a full
understanding of the applicable relationships among tribal,
state, and federal entities, there 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. Compare ante, at 359, n. 3,
with ante, at 372.
The second Montana exception states that a tribe may
regulate nonmember conduct where that conduct “threatens
or has some direct effect on the political integrity, the eco-
nomic security, or the health or welfare of the tribe.” 450
U. S., at 566. The majority concentrates on this aspect of
Montana, asking whether “regulatory jurisdiction over state
officers in the present context is ‘necessary to protect tribal
self-government or to control internal relations,’ ” and con-
cludes that it is not. Ante, at 360.
At the outset, the Court recites relatively uncontrover-
sial propositions. A tribe’s right to make its own laws and
be governed by them “does not exclude all state regulatory
authority on the reservation”; a reservation “ ‘is considered
part of the territory of the State’ ”; “States may regulate
the activities even of tribe members on tribal land”; and the
“ ‘process of [state] courts may run into [a] . . . reservation.’ ”
Ante, at 361, 362, 363 (citations omitted).
None of “these prior statements,” however, “accord[s]”
with the majority’s conclusion that “tribal authority to regu-
late state officers in executing process related to [an off-
reservation violation of state law] is not essential to tribal
self-government or internal relations.” Ante, at 364. Our
prior decisions are informed by the understanding that
tribal, Federal, and State Governments share authority over
tribal lands. See, e. g., Cotton Petroleum Corp. v. New Mex-
ico, 490 U. S. 163, 176–187 (1989) (concurrent jurisdiction of
state and tribal governments to impose severance taxes

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on oil and gas production by nonmembers); Rice v. Rehner,
463 U. S. 713 (1983) (concurrent jurisdiction of Federal and
State Governments to issue liquor licenses for transactions
on reservations); Washington v. Confederated Tribes of Col-
ville Reservation, 447 U. S. 134 (1980) (concurrent juris-
diction of state and tribal governments to tax cigarette
purchases by nonmembers). Saying that tribal jurisdiction
must “accommodat[e]” various sovereign interests does not
mean that tribal interests are to be nullified through a per se
rule. Id., at 156.
The majority’s rule undermining tribal interests is all the
more perplexing because the conduct in this case occurred
on land owned and controlled by the Tribes. Although the
majority gives a passing nod to land status at the outset
of its opinion, ante, at 360, that factor is not prominent in
the Court’s analysis. This oversight is significant. Mon-
tana recognizes that tribes may retain inherent power to
exercise civil jurisdiction when the nonmember conduct
“threatens or has some direct effect on the political integrity,
the economic security, or the health or welfare of the tribe.”
450 U. S., at 566. These interests are far more likely to be
implicated where, as here, the nonmember activity takes
place on land owned and controlled by the tribe. If Mon-
tana is to bring coherence to our case law, we must apply it
with due consideration to land status, which has always fig-
ured prominently in our analysis of tribal jurisdiction. See
supra, at 388–392.
This case involves state officials acting on tribal land.
The Tribes’ sovereign interests with respect to nonmember
activities on its land are not extinguished simply because
the nonmembers in this case are state officials enforcing
state law. Our cases concerning tribal power often involve
the competing interests of state, federal, and tribal govern-
ments. See, e. g., Cotton Petroleum Corp., supra; Confed-
erated Tribes, supra; Rehner, supra. The actions of state
officials on tribal land in some instances may affect tribal
sovereign interests to a greater, not lesser, degree than the

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396 NEVADA v. HICKS
Opinion of O’Connor, J.
actions of private parties. In this case, for example, it is
alleged that state officers, who gained access to Hicks’ prop-
erty by virtue of their authority as state actors, exceeded
the scope of the search warrants and damaged Hicks’ per-
sonal property.
Certainly, state officials should be protected from civil
liability for actions undertaken within the scope of their
duties. See infra, at 400–401. The majority, however, does
not conclude that the officials in this case were acting within
the scope of their duties. Moreover, the majority finds it
“irrelevant” that Hicks’ lawsuits are against state officials in
their personal capacities. Ante, at 365. The Court instead
announces the rule that state officials “cannot be regulated
in the performance of their law enforcement duties,” but
“[a]ction unrelated to that is potentially subject to tribal
control.” Ante, at 373. Here, Hicks alleges that state offi-
cials exceeded the scope of their authority under the search
warrants. The Court holds that the state officials may not
be held liable in Tribal Court for these actions, but never
explains where these, or more serious allegations involving
a breach of authority, would fall within its new rule of state
official immunity.
The Court’s reasoning does not reflect a faithful appli-
cation of Montana and its progeny. Our case law does not
support a broad per se rule prohibiting tribal jurisdiction
over nonmembers on tribal land whenever the nonmembers
are state officials. If the Court were to remain true to the
principles that have governed in prior cases, the Court
would reverse and remand the case to the Court of Appeals
for a proper application of Montana to determine whether
there is tribal jurisdiction. Compare 196 F. 3d, at 1032–1034
(Rymer, J., dissenting) (concluding that there is no jurisdic-
tion under Montana), with 944 F. Supp. 1455, 1466 (Nev.
1996) (assuming, arguendo, that Montana applies and con-
cluding that there is jurisdiction). See also Bourland, 508
U. S., at 695–696.

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II
The Court’s sweeping analysis gives the impression that
this case involves a conflict of great magnitude between the
State of Nevada and the Fallon Paiute-Shoshone Tribes.
That is not so. At no point did the Tribes attempt to ex-
clude the State from the reservation. At no point did the
Tribes attempt to obstruct state officials’ efforts to secure
or execute the search warrants. Quite the contrary, the rec-
ord demonstrates that judicial and law enforcement offi-
cials from the State and the Tribes acted in full cooperation
to investigate an off-reservation crime. Ante, at 355–357;
944 F. Supp., at 1458–1459.
In this case, Hicks attempts to hold state officials (and
tribal officials) liable for allegedly exceeding the scope of the
search warrants and damaging his personal property. This
case concerns the Tribes’ civil adjudicatory jurisdiction over
state officials. The Court concludes that it cannot address
adjudicatory jurisdiction without first addressing the Tribes’
regulatory jurisdiction. Ante, at 357–358. But there is no
need for the Court to decide the precise scope of a tribe’s
regulatory jurisdiction, or to decide in this case whether a
tribe’s adjudicatory jurisdiction equals its regulatory juris-
diction. Cf. ante, at 358, 373–374.
To resolve this case, it suffices to answer the questions
presented, which concern the civil adjudicatory jurisdiction
of tribal courts. See Pet. for Cert. i. Petitioners contend
that tribal court jurisdiction over state officials should be
determined with reference to officials’ claims of immunity.
I agree and would resolve this case by applying basic princi-
ples of official and qualified immunity.
The state officials raised immunity defenses to Hicks’
claims in Tribal Court. The Tribal Court acknowledged
the officials’ claims, but did not consider the immunity de-
fenses in determining its jurisdiction. App. to Pet. for Cert.
C1–C8. The Federal District Court ruled that because the
Tribal Court had not decided the immunity issues, the fed-

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398 NEVADA v. HICKS
Opinion of O’Connor, J.
eral court should stay its hand and not decide the immu-
nity issues while reviewing the Tribal Court’s jurisdiction.
944 F. Supp., at 1468–1469, and n. 26. The Ninth Circuit
affirmed, concluding that the District Court correctly ap-
plied the exhaustion requirement to the immunity issues.
196 F. 3d, at 1029–1031. In my view, the Court of Appeals
misunderstood our precedents when it refused to consider
the state officials’ immunity claims as it reviewed the Tribal
Court’s civil jurisdiction.
In determining the relationship between tribal courts
and state and federal courts, we have developed a doctrine
of exhaustion based on principles of comity. See, e. g., Iowa
Mut. Ins. Co. v. LaPlante, 480 U. S. 9 (1987); National Farm-
ers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845 (1985). In
National Farmers Union, a member of the Tribe sued the
local school district, an arm of the State, in a personal injury
action. Id., at 847. The defendants sued in federal court
challenging the Tribal Court’s jurisdiction. The District
Court concluded that the Tribal Court lacked jurisdic-
tion and enjoined the Tribal Court proceedings. The Court
of Appeals reversed, holding that the District Court lacked
jurisdiction to enter the injunction.
We reversed the Court of Appeals’ conclusion that the
District Court lacked jurisdiction over the federal action.
We explained that the “extent to which Indian tribes have
retained the power to regulate the affairs of non-Indians” is
governed by federal law. Id., at 851–852. Likewise, “[t]he
question whether an Indian tribe retains the power to com-
pel a non-Indian property owner to submit to the civil juris-
diction of a tribal court is one that must be answered by
reference to federal law,” and therefore district courts may
determine under 28 U. S. C. § 1331 whether a tribal court
has exceeded the lawful limits of its jurisdiction. 471 U. S.,
at 852.
We refused to foreclose entirely the civil jurisdiction of
tribal courts over nonmembers as we had foreclosed inherent

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criminal jurisdiction over nonmembers in Oliphant v. Suqua-
mish Tribe, 435 U. S. 191 (1978). See National Farmers,
471 U. S., at 854–855. Instead, we reasoned that “the ex-
istence 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 dimin-
ished, as well as a detailed study of relevant statutes, Execu-
tive Branch policy as embodied in treaties and elsewhere,
and administrative or judicial decisions.” Id., at 855–856
(footnote omitted). We concluded that this “examination
should be conducted in the first instance in the Tribal Court
itself,” and that a federal court should “sta[y] its hand” until
after the tribal court has had opportunity to determine its
own jurisdiction. Id., at 856–857.
In Iowa Mutual, an insurance company sued members of
a Tribe in federal court on the basis of diversity jurisdiction;
at the same time, a civil lawsuit by the tribal members was
pending against the nonmember insurance company in Tribal
Court. 480 U. S., at 11–13. The District Court granted the
tribal members’ motion to dismiss the federal action for lack
of jurisdiction on the ground that the Tribal Court should
have had the first opportunity to determine its jurisdiction.
The Court of Appeals affirmed.
We reversed and remanded. We made clear that the
Tribal Court should be given the first opportunity to deter-
mine its jurisdiction, but emphasized that “[e]xhaustion is
required as a matter of comity, not as a jurisdictional pre-
requisite.” Id., at 16–17, and n. 8. We explained that tribal
court remedies must be exhausted, but the tribal court’s
“determination of tribal jurisdiction is ultimately subject to
review,” and may be challenged in district court. Id., at 19.
Later, in Strate, “we reiterate[d] that National Farmers
and Iowa Mutual enunciate only an exhaustion require-
ment, a prudential rule, based on comity.” 520 U. S., at 453
(internal quotation marks and citation omitted). See also
El Paso Natural Gas Co. v. Neztsosie, 526 U. S. 473, 482–487

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Opinion of O’Connor, J.
(1999). Application of that principle in this case leads me to
conclude that the District Court and the Court of Appeals
should have considered the state officials’ immunity claims
as they determined the Tribal Court’s jurisdiction.
The doctrines of official immunity, see, e. g., Westfall v.
Erwin, 484 U. S. 292, 296–300 (1988), and qualified immunity,
see, e. g., Harlow v. Fitzgerald, 457 U. S. 800, 813–819 (1982),
are designed to protect state and federal officials from civil
liability for conduct that was within the scope of their du-
ties or conduct that did not violate clearly established law.
These doctrines short-circuit civil litigation for officials who
meet these standards so that these officials are not sub-
jected to the costs of trial or the burdens of discovery. 457
U. S., at 817–818. For example, the Federal Employees Lia-
bility Reform and Tort Compensation Act of 1988, commonly
known as the Westfall Act, allows the United States to
substitute itself for a federal employee as defendant upon
certifying that the employee was acting within the scope of
his duties. 28 U. S. C. § 2679(d). Nevada law contains anal-
ogous provisions. See Nev. Rev. Stat. §§ 41.032, 41.0335–
41.0339 (1996 and Supp. 1999). The employee who success-
fully claims official immunity therefore invokes the im-
munity of the sovereign. When a state or federal official
asserts qualified immunity, he claims that his actions were
reasonable in light of clearly established law. Anderson v.
Creighton, 483 U. S. 635 (1987). In those cases, we allow
that official to take an immediate interlocutory appeal from
an adverse ruling to ensure that the civil proceedings do
not continue if immunity should be granted. Mitchell v.
Forsyth, 472 U. S. 511, 524–530 (1985).
In this case, the state officials raised their immunity de-
fenses in Tribal Court as they challenged that court’s sub-
ject matter jurisdiction. App. to Pet. for Cert. J5–J6, K8,
K11–K13; 196 F. 3d, at 1029–1031. Thus the Tribal Court
and the Appellate Tribal Court had a full opportunity to
address the immunity claims. These defendants, like other

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Stevens, J., concurring in judgment
officials facing civil liability, were entitled to have their
immunity defenses adjudicated at the earliest stage possi-
ble to avoid needless litigation. It requires no “magic” to
afford officials the same protection in tribal court that they
would be afforded in state or federal court. Ante, at 373.
I would therefore reverse the Court of Appeals in this case
on the ground that it erred in failing to address the state
officials’ immunity defenses. It is possible that Hicks’ law-
suits would have been easily disposed of on the basis of offi-
cial and qualified immunity.
* * *
The Court issues a broad holding that significantly alters
the principles that govern determinations of tribal adju-
dicatory and regulatory jurisdiction. While I agree that
Montana guides our analysis, I do not believe that the Court
has properly applied Montana. I would not adopt a per se
rule of tribal jurisdiction that fails to consider adequately
the Tribes’ inherent sovereign interests in activities on their
land, nor would I give nonmembers freedom to act with im-
punity on tribal land based solely on their status as state
law enforcement officials. I would hold that Montana gov-
erns a tribe’s civil jurisdiction over nonmembers, and that
in order to protect government officials, immunity claims
should be considered in reviewing tribal court jurisdiction.
Accordingly, I would reverse the judgment of the United
States Court of Appeals for the Ninth Circuit and remand
the case for further proceedings consistent with this opinion.
Justice Stevens, with whom Justice Breyer joins,
concurring in the judgment.
While I join the Court’s disposition of the case for the rea-
sons stated by Justice O’Connor, I do not agree with the
Court’s conclusion that tribal courts may not exercise their
jurisdiction over claims seeking the relief authorized by 42

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402 NEVADA v. HICKS
Stevens, J., concurring in judgment
U. S. C. § 1983.1 I agree instead with the Solicitor General’s
submission that a tribal court may entertain such a claim
unless enjoined from doing so by a federal court. See Brief
for United States as Amicus Curiae 24–30.
The majority’s analysis of this question is exactly back-
wards. It appears to start from the assumption that tribal
courts do not have jurisdiction to hear federal claims unless
federal law expressly grants them the power, see ante, at
367–368, and then concludes that, because no such express
grant of power has occurred with respect to § 1983, tribal
courts must lack the authority to adjudicate those claims.
Ante, at 368 (“[N]o provision in federal law provides for
tribal-court jurisdiction over § 1983 actions”). But the
Court’s initial assumption is deeply flawed. Absent federal
law to the contrary, the question whether tribal courts are
courts of general jurisdiction is fundamentally one of tribal
law. Cf. Gulf Offshore Co. v. Mobil Oil Corp., 453 U. S. 473,
478 (1981) (State-court subject-matter jurisdiction is “gov-
1 As an initial matter, it is not at all clear to me that the Court’s discus-
sion of the § 1983 issue is necessary to the disposition of this case. Strate
v. A–1 Contractors, 520 U. S. 438 (1997), discusses the question whether a
tribal court can exercise jurisdiction over nonmembers, irrespective of the
type of claim being raised. See id., at 459, n. 14 (“When . . . it is plain that
no federal grant provides for tribal governance of nonmembers’ conduct on
land covered by [the main rule in] Montana [v. United States, 450 U. S.
544 (1981)], . . . it will be equally evident that tribal courts lack adjudi-
catory authority over disputes arising from such conduct”). Cf. El Paso
Natural Gas Co. v. Neztsosie, 526 U. S. 473, 482, n. 4 (1999) (“Strate dealt
with claims against nonmembers arising on state highways, and ‘ex-
press[ed] no view on the governing law or proper forum when an accident
occurs on a tribal road within a reservation’ ”). Given the majority’s de-
termination in Part II that tribal courts lack such jurisdiction over “state
wardens executing a search warrant for evidence of an off-reservation
crime,” ante, at 357, I fail to see why the Court needs to reach out to
discuss the seemingly hypothetical question whether, if the tribal courts
had jurisdiction over claims against “state wardens executing a search
warrant,” they could hear § 1983 claims against those wardens.

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Stevens, J., concurring in judgment
erned in the first instance by state laws” (emphasis added)).2
Given a tribal assertion of general subject-matter jurisdic-
tion, we should recognize a tribe’s authority to adjudicate
claims arising under § 1983 unless federal law dictates other-
wise. Cf. id., at 477–478 (“[S]tate courts may assume
subject-matter jurisdiction over a federal cause of action
absent provision by Congress to the contrary or disabling
incompatibility between the federal claim and state-court
adjudication”).3
I see no compelling reason of federal law to deny tribal
courts the authority, if they have jurisdiction over the par-
2 This principle is not based upon any mystical attribute of sovereignty,
as the majority suggests, see ante, at 366–367, but rather upon the simple,
commonsense notion that it is the body creating a court that determines
what sorts of claims that court will hear. The questions whether that
court has the power to compel anyone to listen to it and whether its asser-
tion of subject-matter jurisdiction conflicts with some higher law are sepa-
rate issues.
3 The majority claims that “Strate is [the] ‘federal law to the contrary’ ”
that explains its restriction of tribal court subject-matter jurisdiction
over § 1983 suits. Ante, at 367, n. 8. But Strate merely concerned the
circumstances under which tribal courts can exert jurisdiction over claims
against nonmembers. See 520 U. S., at 447–448. It most certainly does
not address the question whether, assuming such jurisdiction to exist,
tribal courts can entertain § 1983 suits. Yet the majority’s holding that
tribal courts lack subject-matter jurisdiction over § 1983 suits would, pre-
sumably, bar those courts from hearing such claims even if jurisdiction
over nonmembers would be proper under Strate. Accordingly, whatever
else Strate may do, it does not supply the proposition of federal law upon
which the majority purports to rely.
Of course, if the majority, as it suggests, is merely holding that § 1983
does not enlarge tribal jurisdiction beyond what is permitted by Strate,
its decision today is far more limited than it might first appear from the
Court’s sometimes sweeping language. Compare ante, at 369 (“[T]ribal
courts cannot entertain § 1983 suits”), with ante, at 366, n. 7 (“We conclude
(as we must) that § 1983 is not . . . an enlargement [of tribal-court jurisdic-
tion]”). After all, if the Court’s holding is that § 1983 merely fails to “en-
larg[e]” tribal-court jurisdiction, then nothing would prevent tribal courts
from deciding § 1983 claims in cases in which they properly exercise juris-
diction under Strate.

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404 NEVADA v. HICKS
Stevens, J., concurring in judgment
ties, to decide claims arising under § 1983. Section 1983 cre-
ates no new substantive rights, see Chapman v. Houston
Welfare Rights Organization, 441 U. S. 600, 617 (1979); it
merely provides a federal cause of action for the violation of
federal rights that are independently established either in
the Federal Constitution or in federal statutory law. De-
spite the absence of any mention of state courts in § 1983,
we have never questioned the jurisdiction of such courts to
provide the relief it authorizes.4
Moreover, as our decision in El Paso Natural Gas Co. v.
Neztsosie, 526 U. S. 473 (1999), demonstrates, the absence
of an express statutory provision for removal to a federal
court upon the motion of the defendant provides no obstacle
whatsoever to the granting of equivalent relief by a federal
district court. See id., at 485 (“Injunction against further
litigation in tribal courts would in practical terms give the
same result as a removal . . .”). “Why, then, the congres-
sional silence on tribal courts? . . . [I]nadvertence seems
the most likely [explanation] . . . . Now and then silence is
not pregnant.” Id., at 487. There is really no more reason
for treating the silence in § 1983 concerning tribal courts as
an objection to tribal-court jurisdiction over such claims than
there is for treating its silence concerning state courts as
an objection to state-court jurisdiction.
In sum, I agree with the interpretation of this federal
statute that is endorsed by the Solicitor General of the
United States.
4 The authority of state courts to hear § 1983 suits was not always
so uncontroversial. See, e. g., Note, Limiting the Section 1983 Action in
the Wake of Monroe v. Pape, 82 Harv. L. Rev. 1486, 1497, n. 62 (1969)
(“State courts have puzzlingly hesitated on whether they have jurisdiction
over § 1983 claims as such, and no case has been found in which a state
court granted relief under the section. In one case a state supreme court
adopted the expedient of disavowing a position on jurisdiction while deny-
ing recovery on the merits”).