The Ninth Circuit recently affirmed tribal court jurisdiction over a non-member. Water Wheel Camp Recreational Area and Robert Johnson v. Gary LaRance and Jolene Marshall, 09-17349 & 09-17357 (9th Cir. June 10, 2011). Water Wheel was a corporation that operated a campground and resort on a river bank within the Reservation of the Colorado River Indian Tribe. Johnson, a non-tribal ember, was the owner/operator/and alter ego of the resort. Gary LaRance and Jolene Marshall were tribal court judges.
Water Wheel had a thirty-two year lease on the property. Per the terms of the lease, the base rent was to be re-adjusted at year twenty-five to better reflect market conditions. However, when year twenty-five came around, the parties were unable to agree on a new base rent. Water wheel eventually stopped making the lease payments. When the lease expired, Water Wheel refused to vacate the property.
The tribe then brought an action in tribal court to evict Water Wheel. Water Wheel contested jurisdiction, asserting that the tribal court lacked jurisdiction
under U.S. v. Montana. Montana held that tribal court lacks jurisdiction over non-members unless: 1) the non-member had a consensual relationship with the tribe, or 2) the non-member’s conduct threatens the health and welfare, political integrity, or economic security of the tribe.
Johnson asserted that he did not have a consensual relationship with the Tribe because he did not understand that he, personally, would be dealing with the Tribe when he took over the lease and that he did not consent to tribal court
jurisdiction. However, the Court of Appeals held that Montana did not apply because tribal court jurisdiction rested on the Tribe’s inherent authority to exclude, not on Montana. The court reasoned that Montana and progeny, with one narrow exception, involved disputes between non-members and the Tribe arising from activity on non-tribal land within the Reservation. This dispute arose from activity on tribal land within the Reservation. Therefore, Montana did not apply. Tribal court jurisdiction flowed from its power to exclude and its inherent sovereignty over tribal land.