source: Caselaw Access Project

author: Justice Ginsburg

license: Public Domain

text:
    STRATE, ASSOCIATE TRIBAL JUDGE, TRIBAL COURT OF THE THREE AFFILIATED TRIBES OF THE FORT BERTHOLD INDIAN RESERVATION, et al. v. A-1 CONTRACTORS et al.
    No. 95-1872.
    Argued January 7, 1997
    Decided April 28, 1997

      Melody L. McCoy argued the cause for petitioners. With her on the brief was Donald R. Wharton.

      Jonathan E. Nuechterlein argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Dellinger, Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, and Edward J. Shawaker.

      Patrick J. Ward argued the cause and filed a brief for respondents.

      Briefs of amici curiae urging reversal were filed for the Assiniboine and Sioux Tribes of the Fort Peek Reservation et al. by Reid Peyton Chambers; for the Northern Plains Tribal Judges Association by B. J. Jones; for the Shakopee Mdewakanton Sioux (Dakota) Community et al. by Kurt V. BlueDog and Richard A. Duncan; and for the Yavapai-Apache Nation et al. by Susan M. Williams and Gwenellen P. Janov.

      Briefs of amici curiae urging affirmance were filed for the State of Montana 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 jurisdictions as follows: Grant Woods of Arizona, Daniel E. Lungren of California, Gale A. Norton of Colorado, Alan G. Lance of Idaho, Scott Harshbarger of Massachusetts, Mike Moore of Mississippi, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, Mark Barnett of South Dakota, Jan Graham of Utah, Christine 0. Gregoire of Washington, James E. Doyle of Wisconsin, and William U. Hill of Wyoming; for Lake County, Montana, et al. by Jon Metropoulos; for the American Trucking Associations, Inc., et al. by Michele Odorizzi, Andrew J. Pincus, and Daniel R. Barney; and for the Council of State Governments et al. by Richard Ruda and Charles F. Lettow.

   Justice Ginsburg

delivered the opinion of the Court.

This case concerns the adjudicatory authority of tribal courts over personal injury actions against defendants who are not tribal members. Specifically, we confront this question: When an accident occurs on a portion of a public highway maintained by the State under a federally granted right-of-way over Indian reservation land, may tribal courts entertain a civil action against an allegedly negligent driver and the driver’s employer, neither of whom is a member of the tribe?

Such cases, we hold, fall within state or federal regulatory and adjudicatory governance; tribal courts may not entertain claims against nonmembers arising out of accidents on state highways, absent a statute or treaty authorizing the tribe to govern the conduct of nonmembers on the highway in question. We express no view on the governing law or proper forum when an accident occurs on a tribal road within a reservation.

I

In November 1990, petitioner Gisela Fredericks and respondent Lyle Stockert were involved in a traffic accident on a portion of a North Dakota state highway running through the Fort Berthold Indian Reservation. The highway strip crossing the reservation is a 6.59-mile stretch of road, open to the public, affording access to a federal water resource project. North Dakota maintains the road under a right-of-way granted by the United States to the State’s Highway Department; the right-of-way lies on land held by the United States in trust for the Three Affiliated Tribes (Mandan, Hidatsa, and Arikara) and their members.

The accident occurred when Fredericks’ automobile collided with a gravel truck driven by Stockert and owned by respondent A-l Contractors, Stockert’s employer. A-l Contractors, a non-Indian-owned enterprise with its principal place of business outside the reservation, was at the time under a subcontract with LCM Corporation, a corporation wholly owned by the Tribes, to do landscaping work related to the construction of a tribal community building. A-l Contractors performed all work under the subcontract within the boundaries of the reservation. The record does not show whether Stockert was engaged in subcontract work at the time of the accident. Neither Stockert nor Freder-icks is a member of the Three Affiliated Tribes or an Indian. Fredericks, however, is the widow of a deceased member of the Tribes and has five adult children who are tribal members.

Fredericks sustained serious injuries in the accident and was hospitalized for 24 days. In May 1991, she sued respondents A-l Contractors and Stockert, as well as A-l Contractors’ insurer, in the Tribal Court for the Three Affiliated Tribes of the Fort Berthold Reservation. In the same lawsuit, Fredericks’ five adult children filed a loss-of-consortium claim. Together, Fredericks and her children sought damages exceeding $13 million. App. 8-10.

Respondents and the insurer made a special appearance in the Tribal Court to contest that court’s personal and subject-matter jurisdiction. The Tribal Court ruled that it had authority to adjudicate Gisela Fredericks’ case, and therefore denied respondents’ motion to dismiss the action. Id., at 24-25. Respondents appealed the Tribal Court’s jurisdictional ruling to the Northern Plains Intertribal Court of Appeals, which affirmed. Id., at 36. Thereafter, pursuant to the parties’ stipulation, the Tribal Court dismissed the insurer from the suit. See id., at 38-40.

Before Tribal Court proceedings resumed, respondents commenced this action in the United States District Court for the District of North Dakota. Naming as defendants Fredericks, her adult children, the Tribal Court, and Tribal Judge William Strate, respondents sought a declaratory judgment that, as a matter of federal law, the Tribal Court lacked jurisdiction to adjudicate Fredericks’ claims. The respondents also sought an injunction against further proceedings in the Tribal Court. See id., at 41-45.

Relying particularly on this Court’s decisions in National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845 (1985), and Iowa Mut. Ins. Co. v. LaPlante, 480 U. S. 9 (1987), the District Court determined that the Tribal Court had civil jurisdiction over Fredericks’ complaint against A-l Contractors and Stockert; accordingly, on cross-motions for summary judgment, the District Court dismissed the action. App. 54-67. On appeal, a divided panel of the United States Court of Appeals for .the Eighth Circuit affirmed. App. 68-90. The Eighth Circuit granted rehearing en banc and, in an 8-to-4 decision, reversed the District Court’s judgment. 76 F. 3d 930 (1996). The Court of Appeals concluded that our decision in Montana v. United States, 460 U. S. 544 (1981), was the controlling precedent, and that, under Montana, the Tribal Court lacked subject-matter jurisdiction over the dispute.

We granted certiorari, 518 U. S. 1056 (1996), and now affirm.

II

Our case law establishes that, absent express authorization by federal statute or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited circumstances. In Oliphant v. Suquamish Tribe, 435 U. S. 191 (1978), the Court held that Indian tribes lack criminal jurisdiction over non-Indians. Montana v. United States, decided three years later, is the pathmarking case concerning tribal civil authority over nonmembers. Montana concerned the authority of the Crow Tribe to regulate hunting and fishing by non-Indians on lands within the Tribe’s reservation owned in fee simple by non-Indians. The Court said in Montana that the restriction on tribal criminal jurisdiction recognized in Oliphant rested on principles that support a more “general proposition.” 450 U. S., at 565. In the main, the Court explained, “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.” Ibid. The Montana opinion added, however, that in certain circumstances, even where Congress has not expressly authorized it, tribal civil jurisdiction may encompass nonmembers:

“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, licensing, 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 inherent power to exercise civil authority over the conduct of 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 and footnote omitted).

The term “non-Indian fee lands,” as used in this passage and throughout the Montana opinion, refers to reservation land acquired in fee simple by non-Indian owners. See id., at 548.

Montana thus described a general rule that, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation, subject to two exceptions: The first exception relates to nonmembers who enter consensual relationships with the tribe or its members; the second concerns activity that directly affects the tribe’s political integrity, economic security, health, or welfare. The Montana Court recognized that the Crow Tribe retained power to limit or forbid hunting or fishing by nonmembers on land still owned by or held in trust for the Tribe. Id., at 557. The Court held, however, that-the Tribe lacked authority to regulate hunting and fishing by non-Indians on land within the Tribe’s reservation owned in fee simple by non-Indians. Id., at 564-567.

Petitioners and the United States as amicus curiae urge that Montana does not control this case. They maintain that the guiding precedents are National Farmers and Iowa Mutual, and that those decisions establish a rule converse to Montana’s. Whatever Montana may instruct regarding regulatory authority, they insist, tribal courts retain adjudicatory authority in disputes over occurrences inside a reservation, even when the episode-in-suit involves nonmembers, unless a treaty or federal statute directs otherwise. Petitioners, further supported by the United States, argue, alternately, that Montana does not cover lands owned by, or held in trust for, a tribe or its members. Montana holds sway, petitioners say, only with respect to alienated reservation land owned in fee simple by non-Indians. We address these arguments in turn.

A

We begin with petitioners’ contention that National Farmers and Iowa Mutual broadly confirm tribal-court civil jurisdiction over claims against nonmembers arising from occurrences on any land within a reservation. We read our precedent differently. National Farmers and Iowa Mutual, we conclude, are not at odds with, and do not displace, Montana. Both decisions describe an exhaustion rule allowing tribal courts initially to respond to an invocation of their jurisdiction; neither establishes tribal-court adjudicatory authority, even over the lawsuits involved in those cases. Accord, Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 427, n. 10 (1989) (opinion of White, J.).

National Farmers involved a federal-court challenge to a tribal court’s jurisdiction over a personal injury action initiated on behalf of a Crow Indian minor against a Montana school district. The accident-in-suit occurred when the minor was struck by a motorcycle in an elementary school parking lot. The school occupied land owned by the State within the Crow Indian Reservation. See 471 U. S., at 847. The school district and its insurer sought a federal-court injunction to stop proceedings in the Crow Tribal Court. See id., at 848. The District Court granted the injunction, but the Court of Appeals reversed, concluding that federal courts lacked subject-matter jurisdiction to entertain such a case. See id., at 848-849.

We reversed the Court of Appeals’ judgment and held that federal courts have authority to determine, as a matter “arising under” federal law, see 28 U. S. C.. § 1331, whether a tribal court has exceeded the limits of its jurisdiction. See 471 U. S., at 852-853. We further held, however, that the federal suit was premature. Ordinarily, we explained, a federal court should stay its hand “until after the Tribal Court has had a full opportunity to determine its own jurisdiction.” Id., at 857. Finding no cause for immediate federal-court intervention, we remanded the case, leaving initially to the District Court the question “[w]hether the federal action should be dismissed, or merely held in abeyance pending . . . further Tribal Court proceedings.” Ibid.

Petitioners underscore the principal reason we gave in National Farmers for the exhaustion requirement there stated. Tribal-court jurisdiction over non-Indians in criminal cases is categorically restricted under Oliphant, we observed, while in civil matters “the existence 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 diminished, as well as a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and administrative or judicial decisions.” 471 U. S., at 855-856 (footnote omitted).

The Court’s recognition in National Farmers that tribal courts have more extensive jurisdiction in civil cases than in criminal proceedings, and of the need to inspect relevant statutes, treaties, and other materials, does not limit Montana’s instruction. As the Court made plain in Montana, the general rule and exceptions there announced govern only in the absence of a delegation of tribal authority by treaty or statute. In Montana itself, the Court examined the treaties and legislation relied upon by the Tribe and explained why those measures did not aid the Tribe’s case. See 450 U. S., at 557-563. Only after and in light of that examination did the Court address the Tribe’s assertion of “inherent sovereignty,” and formulate, in response to that assertion, Montana’s general rule and exceptions to it. In sum, we do not extract from National Farmers anything more than a prudential exhaustion rule, in deference to the capacity of tribal courts “to explain to the parties the precise basis for accepting [or rejecting] jurisdiction.” 471 U. S., at 857.

Iowa Mutual involved an accident in which a member of the Blackfeet Indian Tribe was injured while driving a cattle truck within the boundaries of the reservation. 480 U. S., at 11. The injured member was employed by a Montana corporation that operated a ranch on reservation land owned by Blackfeet Indians residing on the reservation. See ibid. The driver and his wife, also a Tribe member, sued in the Blackfeet Tribal Court, naming several defendants: the Montana corporation that employed the driver; the individual owners of the ranch; the insurer of the ranch; and an independent insurance adjuster representing the insurer. See ibid. Over the objection of the insurer and the insurance adjuster — both companies not owned by members of the Tribe — the Tribal Court determined that it had jurisdiction to adjudicate the case. See id., at 12.

Thereafter, the insurer commenced a federal-court action against the driver, his wife, the Montana corporation, and the ranch owners. See ibid. Invoking federal jurisdiction based on the parties’ diverse citizenship, see 28 U. S. C. § 1332, the insurer alleged that it had no duty to defend or indemnify the Montana corporation or the ranch owners because the injuries asserted by the driver and his wife fell outside the coverage of the applicable insurance policies. See 480 U. S., at 12-13. The Federal District Court dismissed the insurer’s action for lack of subject-matter jurisdiction, and the Court of Appeals affirmed. See id., at 13-14.

We reversed. Holding that the District Court had diversity-of-citizenship jurisdiction over the insurer’s complaint, we remanded, as in National Farmers, for a determination whether “the federal action should be stayed pending further Tribal Court proceedings or dismissed.” 480 U. S., at 20, n. 14. The Court recognized in Iowa Mutual that the exhaustion rule stated in National Farmers was “prudential,” not jurisdictional. 480 U. S., at 20, n. 14; see also id., at 16, n. 8 (stating that “[exhaustion is required as a matter of comity, not as a jurisdictional prerequisite”). Respect for tribal self-government made it appropriate “to give the tribal court a ‘full opportunity to determine its own jurisdiction.’” Id., at 16 (quoting National Farmers, 471 U. S., at 857). That respect, the Court reasoned, was equally in order whether federal-court jurisdiction rested on §1331 (federal question) or on § 1332 (diversity of citizenship). 480 U. S., at 17-18. Elaborating on the point, the Court stated:

“Tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty. 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. ... In the absence of any indication that Congress intended the diversity statute to limit the jurisdiction of the tribal courts, we decline petitioner’s invitation to hold that tribal sovereignty can be impaired in this fashion.” Id., at 18.

Petitioners and the United States fasten upon the Court’s statement that “[c]ivil jurisdiction over such activities presumptively lies in the tribal courts.” Read in context, however, this language scarcely supports the view that the Montana rule does not bear on tribal-court adjudicatory authority in cases involving nonmember defendants.

The statement stressed by petitioners and the United States was made in refutation of the argument that “Congress intended the diversity statute to limit the jurisdiction of the tribal courts.” 480 U. S., at 18. The statement is preceded by three informative citations. 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,” 450 U. S., at 565, with two prime exceptions, id., at 565-566. The case cited second is Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134 (1980), a decision the Montana Court listed as illustrative of the first Montana exception, applicable to “nonmembers who enter consensual relationships with the tribe or its members,” 450 U. S., at 565-566; the Court in Colville acknowledged inherent tribal authority to tax “non-Indians entering the reservation to engage in economic activity,” 447 U. S., at 153. The third case noted in conjunction with the Iowa Mutual statement is Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U. S. 382 (1976) (per curiam), a decision the Montana Court cited in support of the second Montana exception, covering on-reservation activity of nonmembers bearing directly “on the political integrity, the economic security, or the health or welfare of the tribe.” 450 U. S., at 566. The Court held in Fisher that a tribal court had exclusive jurisdiction over an adoption proceeding when all parties were members of the tribe and resided on its reservation. See 424 U. S., at 383, 389. State-court jurisdiction over such matters, the Court said, “plainly would interfere with the powers of self-government conferred upon the ... Tribe and exercised through the Tribal Court.” Id., at 387. The Court observed in Fisher that state courts may not exercise jurisdiction over disputes arising out of on-reservation conduct — even over matters involving non-Indians — if doing so would “ ‘infring[e] on the right of reservation Indians to make their own laws and be ruled by them.’ ” Id., at 386 (citation omitted).

In light of the citation of Montana, Colville, and Fisher, the Iowa Mutual statement emphasized by petitioners does not limit the Montana rule. In keeping with the precedent to which Iowa Mutual refers, the statement stands for nothing more than the unremarkable proposition that, where tribes possess authority to regulate the activities of nonmembers, “[civil jurisdiction over [disputes arising out of] such activities presumptively lies in the tribal courts.” 480 U. S., at 18.

Recognizing that our precedent has been variously interpreted, we reiterate that National Farmers and Iowa Mutual enunciate only an exhaustion requirement, a “prudential rule,” see Iowa Mutual, 480 U. S., at 20, n. 14, based on comity, see id., at 16, n. 8. These decisions do not expand or stand apart from Montana’s instruction on “the inherent sovereign powers of an Indian tribe.” 450 U. S., at 565. While Montana immediately involved regulatory authority, the Court broadly addressed the concept of “inherent sovereignty.” Id., at 563. Regarding activity on non-Indian fee land within a reservation, Montana delineated — in a main rule and exceptions — the bounds of the power tribes retain to exercise “forms of civil jurisdiction over non-Indians.” Id., at 565. As to nonmembers, we hold, a tribe’s adjudicative jurisdiction does not exceed its legislative jurisdiction. Absent congressional direction enlarging tribal-court jurisdiction, we adhere to that understanding. Subject to controlling provisions in treaties and statutes, and the two exceptions identified in Montana, the civil authority of Indian tribes and their courts with respect to non-Indian fee lands generally “do[es] not extend to the activities of nonmembers of the tribe.” Ibid.

B

We consider next the argument that Montana does not govern this case because the land underlying the scene of the accident is held in trust for the Three Affiliated Tribes and their members. Petitioners and the United States point out that in Montana, as in later eases following Montana’s instruction — Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408 (1989), and South Dakota v. Bourland, 508 U. S. 679 (1993), described supra, at 447, n. 6—the challenged tribal authority related to nonmember activity on alienated, non-Indian reservation land. We “can readily agree,” in accord with Montana, 450 U. S., at 557, that tribes retain considerable control over nonmember conduct on tribal land. On the particular matter before us, however, we agree with respondents: The right-of-way North Dakota acquired for the State’s highway renders the 6.59-mile stretch equivalent, for nonmember governance purposes, to alienated, non-Indian land.

Congress authorized grants of rights-of-way over Indian lands in 1948 legislation. Act of Feb. 5, 1948, ch. 45, 62 Stat. 17, 25 U. S. C. §§ 323-328. A grant over land belonging to a tribe requires “consent of the proper tribal officials,” §324, and the payment of just compensation, §325. The grant involved in this case was made, pursuant to the federal statute, in 1970. Its purpose was to facilitate public access to Lake Sakakawea, a federal water resource project under the control of the Army Corps of Engineers.

In the granting instrument, the United States conveyed to North Dakota “an easement for a right-of-way for the realignment and improvement of North Dakota State Highway No. 8 over, across and upon [specified] lands.” App. to Brief for Respondents 1. The grant provides that the State’s “easement is subject to any valid existing right or adverse claim and is without limitation as to tenure, so long as said easement shall be actually used for the purpose . . . specified.” Id., at 3. The granting instrument details only one specific reservation to Indian landowners:

“The right is reserved to the Indian land owners, their lessees, successors, and assigns to construct crossings of the right-of-way at all points reasonably necessary to the undisturbed use and occupan[cy] of the premises affected by the right-of-way; such crossings to be constructed and maintained by the owners or lawful occupants and users of said lands at their own risk and said occupants and users to assume full responsibility for avoiding, or repairing any damage to the right-of-way, which may be occasioned by such crossings.” Id., at 3-4.

Apart from this specification, the Three Affiliated Tribes expressly reserved no right to exercise dominion or control over the right-of-way.

Forming part of the State’s highway, the right-of-way is open to the public, and traffic on it is subject to the State’s control. The Tribes have consented to, and received payment for, the State’s use of the 6.59-mile stretch for a public highway. They have retained no gatekeeping right. So long as the stretch is maintained as part of the State’s highway, the Tribes cannot assert a landowner’s right to occupy and exclude. Cf. Bourland, 508 U. S., at 689 (regarding reservation land acquired by the United States for operation of a dam and a reservoir, Tribe’s loss of “right of absolute and exclusive use and occupation . . . implies the loss of regulatory jurisdiction over the use of the land by others”). We therefore align the right-of-way, for the purpose at hand, with land alienated to non-Indians. Our decision in Montana, accordingly, governs this case.

III

Petitioners and the United States refer to no treaty or statute authorizing the Three Affiliated Tribes to entertain highway-accident tort suits of the kind Fredericks commenced against A-l Contractors and Stockert. Rather, petitioners and the United States ground their defense of tribal-court jurisdiction exclusively on the concept of retained or inherent sovereignty. Montana, we have explained, is the controlling decision for this case. To prevail here, petitioners must show that Fredericks’ tribal-court action against nonmembers qualifies under one of Montana’s two exceptions.

The first exception to the Montana rule covers “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. The tortious conduct alleged in Fredericks’ complaint does not fit that description. The dispute, as the Court of Appeals said, is “distinctly non-tribal in nature.” 76 F. 3d, at 940. It “arose between two non-Indians involved in' [a] run-of-the-mill [highway] accident.” Ibid. Although A-l was engaged in subcontract work on the Fort Berthold Reservation, and therefore had a “consensual relationship” with the Tribes, “Gisela Fredericks was not a party to the subcontract, and the [TJribes were strangers to the accident.” Ibid.

Montana’s list of cases fitting within the first exception, see 450 U. S., at 565-566, indicates the type of activities the Court had in mind: Williams v. Lee, 358 U. S. 217, 223 (1959) (declaring tribal jurisdiction exclusive over lawsuit arising out of on-reservation sales transaction between nonmember plaintiff and member defendants); Morris v. Hitchcock, 194 U. S. 384 (1904) (upholding tribal permit tax on nonmember-owned livestock within boundaries of the Chickasaw Nation); Buster v. Wright, 135 F. 947, 950 (CA8 1905) (upholding Tribe’s permit tax on nonmembers for the privilege of conducting business within Tribe’s borders; court characterized as “inherent” the Tribe’s “authority ... to prescribe the terms upon which noncitizens may transact business within its borders”); Colville, 447 U. S., at 152-154 (tribal authority to tax on-reservation cigarette sales to nonmembers “is a fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication of their dependent status”). Measured against these cases, the Fredericks-Stockert highway accident presents no “consensual relationship” of the qualifying kind.

The second exception to Montana’s general rule concerns 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 566. Undoubtedly, those who drive carelessly on a public highway running through a reservation endanger all in the vicinity, and surely jeopardize the safety of tribal members. But if Montana’s second exception requires no more, the exception would severely shrink the rule. Again, cases cited in Montana indicate the character of the tribal interest the Court envisioned.

The Court’s statement of Montana’s second exceptional category is followed by citation of four cases, ibid.; each of those cases raised the question whether a State’s (or Territory’s) exercise of authority would trench unduly on tribal self-government. In two of the cases, the Court held that a State’s exercise of authority would so intrude, and in two, the Court saw no impermissible intrusion.

The Court referred first to the decision recognizing the exclusive competence of a tribal court over an adoption proceeding when all parties belonged to the Tribe and resided on its reservation. See Fisher, 424 U. S., at 386; supra, at 452-453. Next, the Court listed a decision holding a tribal court exclusively competent to adjudicate a claim by a non-Indian merchant seeking payment from tribe members for goods bought on credit at an on-reservation store. See Williams, 358 U. S., at 220 (“[A]bsent governing Acts of Congress, the question [of state-court jurisdiction over on-reservation conduct] has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.”). Thereafter, the Court referred to two decisions dealing with objections to a county or territorial government’s imposition of a property tax on non-Indian-owned livestock that grazed on reservation land; in neither case did the Court find a significant tribal interest at stake. See Montana Catholic Missions v. Missoula County, 200 U. S. 118, 128-129 (1906) (“the Indians’ interest in this kind of property [livestock], situated on their reservations, was not sufficient to exempt such property, when owned by private individuals, from [state or territorial] taxation”); Thomas v. Gay, 169 U. S. 264, 273 (1898) (“[territorial] tax put upon the cattle of [non-Indian] lessees is too remote and indirect to be deemed a tax upon the lands or privileges of the Indians”).

Read in isolation, the Montana rule’s second exception can be misperceived. Key to its proper application, however, is the Court’s preface: “Indian tribes retain their inherent power [to punish tribal offenders,] to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members. . . . But [a tribe’s inherent power does not reach] beyond what is necessary to protect tribal self-government or to control internal relations.” 450 U. S., at 564. Neither regulatory nor adjudicatory authority over the state highway accident at issue is needed to preserve “the right of reservation Indians to make their own laws and be ruled by them.” Williams, 358 U. S., at 220. The Montana rule, therefore, and not its exceptions, applies to this case.

Gisela Fredericks may pursue her case against A-l Contractors and Stockert in the state forum open to all who sustain injuries on North Dakota’s highway. Opening the Tribal Court for her optional use is not necessary to protect tribal self-government; and requiring A-l and Stockert to defend against this commonplace state highway accident claim in an unfamiliar court is not crucial to “the political integrity, the economic security, or the health or welfare of the [Three Affiliated Tribes].” Montana, 450 U. S., at 566.

* * *

For the reasons stated, the judgment of the Court of Appeals for the Eighth Circuit is

Affirmed.

       Respondents state that the subcontract had forum-selection and choice-of-law provisions selecting Utah state courts and Utah law for dispute resolution. See Brief for Respondents 2. Petitioners do not contest this point, but the subcontract is not part of the record in this ease.

       The Court of Appeals for the Eighth Circuit stated that petitioner Fredericks resides on the reservation. See 76 F. 3d 930, 932 (1996) (en banc). Respondents assert, however, that there is an unresolved factual dispute regarding Fredericks’ residence at the time of the accident. See Brief for Respondents 1-2, n. 2; Brief in Opposition 3, n. 4. Under our disposition of the case, Fredericks’ residence at the time of the accident is immaterial.

       Satisfied that it could adjudicate Gisela Fredericks’ claims, the Tribal Court declined to address her adult children’s consortium claim, App. 25; thus, no ruling on that claim is here at issue.

       Petitioner Fredericks has commenced a similar lawsuit in a North Dakota state court “to protect her rights against the running of the State’s six-year statute of limitations.” Reply Brief 6, n. 2. Respondents assert that they have answered the complaint and “are prepared to proceed in that forum.” Brief for Respondents 8, n. 6. Respondents also note, without contradiction, that the state forum “is physically much closer by road to the accident scene ... than [is] the tribal courthouse.” Ibid.

       In Duro v. Reina, 495 U. S. 676, 684-685 (1990), we held that Indian tribes also lack criminal jurisdiction over nonmember Indians. Shortly after our decision in Duro, Congress provided for tribal criminal jurisdiction over nonmember Indians. See 25 U. S. C. § 1301(2).

         Montana’s statement of the governing law figured prominently in Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408 (1989), and in South Dakota v. Bourland, 508 U. S. 679 (1993). The Court held in Brendale, 6 to 3, that the Yakima Indian Nation lacked authority to zone nonmembers’ land within an area of the Tribe’s reservation open to the general public; almost half the land in the area was owned in fee by nonmembers. The Court also held, 5 to 4, that the Tribe retained authority to zone fee land in an area of the reservation closed to the general public. No opinion garnered a majority. Justice White, writing for four Members of the Court, concluded that, under Montana, the Tribe lacked authority to zone fee land in both the open and closed areas of the reservation. 492 U. S., at 422-432. Justice Stevens, writing for two Justices, concluded that the Tribe retained zoning authority over nonmember land only in the closed area. Id., at 443-444. Justice Blackmun, writing for three Justices, concluded that, under Montana’s second exception, the Tribe retained authority to zone fee land in both the open and the closed areas. Id., at 456-459.
      In Bourland, the Court considered whether the Cheyenne River Sioux Tribe could regulate hunting and fishing by non-Indians in an area within the Tribe’s reservation, but acquired by the United States for the operation of a dam and a reservoir. We determined, dominantly, that no treaty or statute reserved to the Tribe regulatory authority over the area, see 508 U. S., at 697, and we left for resolution on remand the question whether either Montana exception applied, see 508 U. S., at 695-696; see also 39 F. 3d 868, 869-870 (CA8 1994) (decision of divided panel on remand that neither Montana exception justified regulation by the Tribe).

       The Court indicated in National Farmers that exhaustion is not an unyielding requirement:
      “We do not suggest that exhaustion would be required where an assertion of tribal jurisdiction ‘is motivated by a desire to harass or is conducted in bad faith,’ or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court’s jurisdiction.” 471 U. S., at 856, n. 21 (citation omitted).

       Petitioners note in this regard the Court’s unqualified recognition in Montana that “the Tribe may prohibit nonmembers from hunting or fishing on land belonging to the Tribe or held by the United States in trust for the Tribe.” 450 U. S., at 557. The question addressed was “the power of the Tribe to regulate non-Indian fishing and hunting on reservation land owned in fee by nonmembers of the Tribe.” Ibid,.; see Brief for Petitioners 15-16.

       For contextual treatment of rights-of-way over Indian land, compare 18 U. S. C. § 1151 (defining “Indian country” in criminal law chapter generally to include “rights-of-way running through [a] reservation”) with §§ 1154(e) and 1156 (term “Indian country,” as used in sections on dispensation and possession of intoxicants, “does not include . . . rights-of-way through Indian reservations”).

       Rights-of-way granted over lands of individual Indians also require payment of compensation, 25 U. S. C. § 325, and ordinarily require consent of the individual owners, see §324 (describing circumstances in which rights-of-way may be granted without the consent of owners).

       We do not here question the authority of tribal police to patrol roads within a reservation, including rights-of-way made part of a state highway, and to detain and turn over to state officers nonmembers stopped on the highway for conduct violating state law. Cf. State v. Schmuck, 121 Wash. 2d 373, 390, 850 P. 2d 1332, 1341 (en banc) (recognizing that a limited tribal power “to stop and detain alleged offenders in no way confers an unlimited authority to regulate the right of the public to travel on the Reservation’s roads”), cert. denied, 510 U. S. 931 (1993).

       See supra, at 445, n. 4.

       Within the federal system, when nonresidents are the sole defendants in a suit filed in state court, the defendants ordinarily may remove the ease to federal court. See 28 U. S. C. § 1441.

       When, as in this case, it is plain that no federal grant provides for tribal governance of nonmembers’ conduct on land covered by Montana’s main rule, it will be equally evident that tribal courts lack adjudicatory authority over disputes arising from such conduct. As in criminal proceedings, state or federal courts will be the only forums competent to adjudicate those disputes. See National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845, 854 (1985). Therefore, when tribal-court jurisdiction over an action such as this one is challenged in federal court, the otherwise applicable exhaustion requirement, see supra, at 449-450, must give way, for it would serve no purpose other than delay. Cf. National Farmers, 471 U. S., at 856, n. 21; supra, at 449, n. 7.


author: Chief Justice Rehnquist

text:
    JOHNSON v. UNITED STATES
    No. 96-203.
    Argued February 25, 1997
    Decided May 12, 1997

      William J. Sheppard argued the cause for petitioner. With him on the briefs were D. Gray Thomas and Elizabeth L. White.

      Deputy Solicitor General Dreeben argued the cause for the United States. With him on the brief were Acting Solicitor General Dellinger, Acting Assistant Attorney General Keeney, and Jonathan E. Nuechterlein.

      Briefs of amici curiae urging reversal were filed for the National Association of Criminal Defense Lawyers by Neal Goldfarb, Barbara Bergman, and Blair G. Brown; and for David R. Knoll by Stephen L. Braga.

   Chief Justice Rehnquist

delivered the opinion of the Court.

In this case the trial court itself decided the issue of materiality in a perjury prosecution, rather than submitting it to the jury as our decision in United States v. Gaudin, 515 U. S. 506 (1995), now requires. No objection was made by the petitioner, Joyce B. Johnson, and we hold that the court’s action in this case was not “plain error” of the sort which an appellate court may notice under Federal Rule of Criminal Procedure 52(b).

In the late 1980’s, a federal investigation into the cocaine and marijuana trafficking of Earl James Fields revealed that he and his partner had amassed some $10 million from their illicit activities. Following the money trail, federal authorities subpoenaed Johnson, Fields’ long-time girlfriend, to testify before a federal grand jury. Johnson, who is the mother of a child by Fields, earned about $34,000 a year at the Florida Department of Health and Rehabilitative Services. She testified before the grand jury that she owned five pieces of real property, including her house. That house was purchased by Johnson in 1991 for $75,600, and in the next two years she added sufficient improvements to it that in 1993 it was appraised at $344,800. When asked the source of her home improvement funds, Johnson stated that she had put $80,000 to $120,000 into her house, all of which had come from a box of cash given her late mother by one Gerald Tal-cott in 1985 or 1986.

On the basis of this testimony, Johnson was indicted for perjury under 18 U. S. C. § 1623. At trial, it was revealed that Fields had negotiated the original purchase of Johnson’s home and that Johnson had paid for the property with eight different cashier’s checks, including two from a corporation in which Fields had an interest. It was also established that Gerald Talcott had died in April 1982, several years before the time Johnson claimed he had given her mother the box full of cash.

At the close of Johnson’s trial, and in accordance with then-extant Circuit precedent, see, e. g., United States v. Molinares, 700 F. 2d 647, 653 (CA11 1983), the District Judge instructed the jury that the element of materiality was a question for the judge to decide, and that he had determined that her statements were material.. App. 72. Johnson did not object to this instruction. Indeed, when the prosecution had presented evidence concerning materiality during the trial, she had then objected, on- the ground that materiality was a matter for the judge, and not the jury, to decide. Id., at 61. The jury returned a verdict of guilty, and Johnson was sentenced to 30 months’ imprisonment, three years’ supervised release, and a $30,000 fine.

After Johnson was convicted, but before her appeal to the Court of Appeals, we decided United States v. Gaudin, supra, which held that the materiality of a false statement must be submitted to the jury rather than decided by the trial judge. On her appeal, Johnson argued that the trial judge’s failure to submit materiality to the jury rendered her conviction invalid under Gaudin.

Because Johnson had failed to object to the trial judge’s deciding materiality, the Court of Appeals for the Eleventh Circuit reviewed for plain error. Rule 52(b) of the Federal Rules of Criminal Procedure provides:

“Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”

Following our analysis in United States v. Olano, 507 U. S. 725 (1993), the Court of Appeals assumed, arguendo, that the District Court’s failure to submit materiality to the jury constituted “error” that was “clear or obvious,” but concluded nonetheless that any such error did not affect the “substantial rights” of the defendant. That conclusion was based on the court’s independent review of the record and determination that there was “overwhelming” evidence of materiality and that “[n]o reasonable juror could conclude that Johnson’s false statements about the source of the money . . . were not material to the grand jury’s investigation.” App. to Pet. for Cert. 9a (judgt. order reported at 82 F. 3d 429 (CA11 1996)). Due to the conflict between this decision and the Ninth Circuit’s en banc decision in United States v. Keys, 95 F. 3d 874 (1996), we granted, certiorari. 519 U. S. 989 (1996). We now affirm.

I

Title 18 U. S. C. § 1623 proscribes “knowingly mak[ing] any false material declaration” under oath before a grand jury. Although we merely assumed in Gaudin that materiality is an element of making a false statement under 18 U. S. C. § 1001, and although we recently held that materiality is not an element of making a false statement to a federally insured bank under 18 U. S. C. § 1014, United States v. Wells, 519 U. S. 482 (1997), there is no doubt that materiality is an element of perjury under § 1623. The statutory text expressly requires that the false declaration be “material.” Gaudin therefore dictates that materiality be decided by the jury, not the court.

Petitioner, however, did not object to the trial court’s treatment of materiality. Rule 30 of the Federal Rules of Criminal Procedure provides: “No party may assign as error any portion of the [jury] charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection.” This Rule is simply the embodiment of the “familiar” principle that a right “ ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’” Olano, supra, at 731 (quoting Yakus v. United States, 321 U. S. 414, 444 (1944)). The Rule is mitigated, however, by Rule 52(b), which allows plain errors affecting substantial rights to be noticed even though there was no objection.

Petitioner argues that she need not fall within the “limited” and “circumscribed” strictures of Olano, because the error she complains of here is “structural,” and so is outside Rule 52(b) altogether. But the seriousness of the error claimed does not remove consideration of it from the ambit of the Federal Rules of Criminal Procedure. None of the cases discussing “structural error,” upon which petitioner relies, were direct appeals from judgments of conviction in the federal system. Several came from state courts which had considered the claimed error under their own rules. See Gideon v. Wainwright, 372 U. S. 335 (1963); Arizona v. Fulminante, 499 U. S. 279 (1991); Sullivan v. Louisiana, 508 U. S. 275 (1993). Others came here by way of federal habeas challenges to state convictions. See Vasquez v. Hillery, 474 U. S. 254 (1986); McKaskle v. Wiggins, 465 U. S. 168 (1984). None of them were subject to the provisions of Rule 52.

But it is that Rule which by its terms governs direct appeals from judgments of conviction in the federal system, and therefore governs this case. We cautioned against any unwarranted expansion of Rule 52(b) in United States v. Young, 470 U. S. 1 (1985), because it “would skew the Rule’s ‘careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed,’” id., at 15 (quoting United States v. Frady, 456 U. S. 152, 163 (1982)). Even less appropriate than an unwarranted expansion of the Rule would be the creation out of whole cloth of an exception to it, an exception which we have no authority to make. See Carlisle v. United States, 517 U. S. 416, 425-426 (1996).

II

We therefore turn to apply here Rule 52(b) as outlined in Olano. Under that test, before an appellate court can correct an error not raised at trial, there must be (1) “error,” (2) that is “plain,” and (3) that “affect[s] substantial rights.” 507 U. S., at 732. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error “ ‘ “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”’” Ibid. (quoting United States v. Young, supra, at 15, in turn quoting United States v. Atkinson, 297 U. S. 157, 160 (1936)).

A

There is no doubt that if petitioner’s trial occurred today, the failure to submit materiality to the jury would be error under Gaudin. Under Griffith v. Kentucky, 479 U. S. 314 (1987), a “new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . . pending on direct review . . . , with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Id., at 328. Because petitioner is still on direct review, Griffith requires that we apply Gaudin retroactively. Accordingly, under Gaudin there was “error,” and the first prong of Olano is satisfied.

B

The second prong is more difficult. Olano explained that the word “plain” is “synonymous with ‘clear’ or, equivalently, ‘obvious.’ ” 507 U. S., at 734. But Olano refrained from deciding when an error must be plain to be reviewable. “At a minimum,” Olano concluded, the error must be plain “under current law.” Ibid. In the case with which we are faced today, the error is certainly clear under “current law,” but it was by no means clear at the time of trial.

The Government contends that for an error to be “plain,” it must have been so both at the time of trial and at the time of appellate consideration. In this case, it says, petitioner should have objected to the court’s deciding the issue of materiality, even though near-uniform precedent both from this Court and from the Courts of Appeals held that course proper. Petitioner, on the other hand, urges that such a rule would result in counsel’s inevitably making a long and virtually useless laundry list of objections to rulings that were plainly supported by existing precedent. We agree with petitioner on this point, , and hold that in a case such as this — where the law at the time of trial was settled and clearly contrary to the law at the time of appeal — it is enough that an error be “plain” at the time of appellate consideration. Here, at the time of trial it was settled that the issue of materiality was to be decided by the court, not the jury; by the time of appellate consideration, the law had changed, and it is now settled that materiality is an issue for the jury. The second part of the Olano test is therefore satisfied.

C

But even though the error be “plain,” it must also “affecft] substantial rights.” It is at this point that petitioner’s argument that the failure to submit an element of the offense to the jury is “structural error” becomes relevant. She contends in effect that if an error is so serious as to defy harmless-error analysis, it must also “affec[t] substantial rights.” A “structural” error, we explained in Arizona v. Fulminante, is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself,” 499 U. S., at 310. We have found structural errors only in a very limited class of cases: See Gideon v. Wainwright, 372 U. S. 335 (1963) (a total deprivation of the right to counsel); Tumey v. Ohio, 273 U. S. 510 (1927) (lack of an impartial trial judge); Vasquez v. Hillery, 474 U. S. 254 (1986) (unlawful exclusion of grand jurors of defendant’s race); McKaskle v. Wiggins, 465 U. S. 168 (1984) (the right to self-representation at trial); Waller v. Georgia, 467 U. S. 39 (1984) (the right to a public trial); Sullivan v. Louisiana, 508 U. S. 275 (1993) (erroneous reasonable-doubt instruction to jury).

It is by no means clear that the error here fits within this limited class of cases. Sullivan v. Louisiana, the case most closely on point, held that the erroneous definition of “reasonable doubt” vitiated all of the jury’s findings because one could only speculate what a properly charged jury might have done. Id., at 280. The failure to submit materiality to the jury, as in this case, can just as easily be analogized to improperly instructing the jury on an element of the offense, e. g., Yates v. Evatt, 500 U. S. 391 (1991); Carella v. California, 491 U. S. 263 (1989) (per curiam); Pope v. Illinois, 481 U. S. 497 (1987); Rose v. Clark, 478 U. S. 570 (1986), an error which is subject to harmless-error analysis, as it can be to failing to give a proper reasonable-doubt instruction altogether. Cf. California v. Roy, 519 U. S. 2, 5 (1996) (per curiam) (“The specific error at issue here — an error in the instruction that defined the crime — is ... as easily characterized as a ‘misdescription of an element’ of the crime, as it is characterized as an error of ‘omission’ ”).

D

But we need not decide that question because, even .assuming that the failure to submit materiality to the jury “affected] substantial rights,” it does not meet the final requirement of Olano. When the first three parts of Olano are satisfied, an appellate court must then determine whether the forfeited error “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings’ ” before it may exercise its discretion to correct the error. Olano, 507 U. S., at 736 (quoting Atkinson, 297 U. S., at 160).

In this case that question must be answered in the negative. As the Court of Appeals noted, the evidence supporting materiality was “overwhelming.” App. to Pet. for Cert. 9a. Materiality was essentially uncontroverted at trial and has remained so on appeal. The grand jury here was investigating petitioner’s long-time boyfriend’s alleged cocaine and marijuana trafficking and the “disposition of money which was proceeds of this cocaine and [marijuana] distribution activity, including the possible concealment of such proceeds as investments in real estate.” App. 5-6. Before the Eleventh Circuit and in her briefing before this Court, petitioner has presented no plausible argument that the false statement under oath for which she was convicted — lying about the source of the tens of thousands of dollars she used to improve her home — was somehow not material to the grand jury investigation.

On this record there is no basis for concluding that the error “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Indeed, it would be the reversal of a conviction such as this which would have that effect. “Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.” R. Traynor, The Riddle of Harmless Error 50 (1970). No “miscarriage of justice” will result here if we do not notice the error, Olano, supra, at 736, and we decline to do so. The judgment of the Court of Appeals is therefore

Affirmed.

       Justice Scalia joins all but Parts II-B and II-C of this opinion.

       See United States v. Corsino, 812 F. 2d 26, 31, n. 3 (CA1 1987); United States v. Bernard, 384 F. 2d 915, 916 (CA2 1967); United States v. Greber, 760 F. 2d 68, 73 (CA3 1985); Nilson Van & Storage Co. v. Marsh, 755 F. 2d 362, 367 (CA4 1985); United States v. Hausmann, 711 F. 2d 615, 616-617 (CA5 1983); United States v. Chandler, 752 F. 2d 1148, 1150-1151 (CA6 1985); United States v. Brantley, 786 F. 2d 1322, 1327, and n. 2 (CA7 1986); United States v. Hicks, 619 F. 2d 752, 758 (CA8 1980); United States v. Daily, 921 F. 2d 994, 1004 (CA10 1990); United States v. Lopez, 728 F. 2d 1359, 1362, n. 4 (CA11 1984); United States v. Hansen, 772 F. 2d 940, 950 (CADC 1985).

       The Government represents — and petitioner has not disputed — that the sum total of petitioner’s argument at trial concerning materiality consisted of the following conclusory sentence: “ ‘I would argue that the element of materiality has been insufficiently proven and that the Court ought to grant a judgment of acquittal.’ ” Brief for United States 5 (quoting trial transcript); see also Reply Brief for Petitioner 4, n. 5.