There are hundreds of Native American Tribes with their own judicial systems and courts. Under the test first established in Montana v. United States, the Supreme Court of the United States has provided a single, nebulous standard for determining the limits of tribal courts’ jurisdiction over non-Indians. Scholars and federal jurists have long assumed that the Supreme Court's framework limiting tribal civil jurisdiction is essential to how tribal courts determine jurisdiction. This paper challenges that assumption. Through a first of its kind survey of tribal court decisions on civil jurisdiction, spanning 26 tribes and covering 71 decisions, this paper argues that Montana does not bind tribal courts in any meaningful way. The conclusions of this survey are buttressed by in-depth analyses of how tribal courts in three different tribes determine their jurisdiction in civil cases, and the role that the Montana test plays in each tribe’s jurisdiction determinations, including the first such analyses for the Ho-Chunk Nation and the Mashantucket (Western) Pequot Tribe.

Ultimately, this paper concludes that tribal courts have sophisticated and relatively clear tests for determining civil jurisdiction, and that the United States Supreme Court’s Montana test plays a limited role in how most Native American tribes determine their civil jurisdiction. This article argues the Montana framework should be abandoned in favor of a return to first principles in Federal Indian law, based in respect for tribal sovereignty. Further, it suggests that the Montana test’s requirement that parties objecting to tribal court jurisdiction exhaust their remedies in tribal court before federal review, has allowed the tribal jurisprudence to flourish, and thus, is the most important part of the Montana framework.



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