Tribes legal authority over nonmembers is both very simple and incredibly complex. Tribes dont operate under the federal Constitution; instead, each has its own laws. Congress has the authority under the Constitutionprimarily the Indian-commerce clauseto enact laws to modify tribes powers. But historically, Congress has not done this often, leaving intact tribal autonomy over tribe members.

When it comes to tribal powers over nonmembers, the Supreme Court has stepped in. In 1981, the Court decided in Montana v. United States that tribes normally cannot regulate nonmembers. However, the Court did say there were two exceptions, usually called the Montana exceptions: (1) tribes can regulate nonmembers when nonmembers affirmatively consent; and (2) tribes can regulate nonmembers when their conduct imperils the political integrity of Indian tribes.

The first Montana exception, as a practical matter, swallows the general rule. For the most part, nonmembers consent. Nearly 1 million nonmembers are employees of tribes or their enterprises, and many others reside with tribal-member relatives in tribal public housing. If tribes want nonmember consent, they can make it a condition of employment or residency. Nonmember-owned businesses on reservations use their own bargaining power to negotiate with the tribe on whether tribal law applies to them.

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However, when nonmembers do not consent and then disobey tribal regulations, tribes usually have little recourse, as the second Montana exceptions imperilment standard is almost impossible to meet. For instance, tribal-member victims of vehicular or train accidents caused by nonmembers cannot sue in tribal court. The Supreme Courts signal to nonmembers is that if the tribe is not outright destroyed by their conduct, then the tribe cannot regulate that conduct.

As a result, nonmembers who defy tribal laws in the 21st century are more like outlaws of the Old West, perpetrating terrible acts and expecting to get away with it. The nonmembers challenging tribal jurisdiction over them in the most recent Supreme Court cases on this issue allegedly committed acts of racial discrimination in lending, perpetrated child molestation at a retail store, and dumped 22 million tons of radioactive and toxic waste on Indian lands. The lender prevailed. The retail store likely would have won, but Justice Antonin Scalia died while the case was pending. The remaining eight justices split, leaving a tie. Under the Supreme Courts rule, the lower-court decision is affirmed without opinion, meaning the tribe prevailed. The dumping case is still pending, awaiting a recommendation from the solicitor general. These actors allegedly committed serious offenses against tribes and Indian people but tend to be viewed favorably by the Court.

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