FMC Corporation v. Shoshone-Bannock Tribes

This Court has long held that tribal efforts “to regulate nonmembers, especially on non-Indian fee land, are presumptively invalid.” Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 330 (2008) (citation omitted). This rule is subject to two exceptions, “known as the Montana exceptions.” Id. But the Court has repeatedly stressed that these exceptions are “limited” and cannot be construed so as to “swallow the rule” against tribal jurisdiction over nonmembers. Id. (citation omitted). The Court has also emphasized that, even when a Montana exception is met, a tribe’s regulation of nonmembers still “must stem from the tribe’s inherent authority to set conditions on entry, preserve tribal selfgovernment, or control internal relations.” Id. at 337. The Ninth Circuit, which is home to some 400 Indian tribes, has repeatedly resisted these limits, leading one judge to observe that the court has “flip[ped] Montana’s general rule on its head.” Window Rock Unified Sch. Dist. v. Reeves, 861 F.3d 894, 907, 916 (9th Cir. 2017) (Christen, J., dissenting). Here, in direct conflict with the decisions of this Court as well as those of the Seventh and Eighth Circuits, the Ninth Circuit overhauled Montana’s carefully tailored framework and turned it into an unprecedented source of tribal jurisdiction over nonmembers who have no say in tribal government. The questions presented are: 1. Whether the Ninth Circuit correctly holds that tribal jurisdiction over nonmembers is established whenever a Montana exception is met, or whether, as the Seventh and Eighth Circuits have held, a court must also determine that the exercise of such