Plains Commerce Bank v. Long Family Land & Cattle Co. , 128 S. Ct. 2709 ( 2008 )

(Slip Opinion) OCTOBER TERM, 2007 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO., INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT
No. 07–411. Argued April 14, 2008—Decided June 25, 2008
Petitioner Plains Commerce Bank (Bank), a non-Indian bank, sold land
it owned in fee simple on a tribal reservation to non-Indians. Re-
spondents the Longs, an Indian couple who had been leasing the land
with an option to purchase, claim the Bank discriminated against
them by selling the parcel to nonmembers of the Tribe on terms more
favorable than the Bank offered to sell it to them. The couple sued in
Tribal Court, asserting, inter alia, discrimination, breach-of-contract,
and bad-faith claims. Over the Bank’s objection, the Tribal Court
concluded that it had jurisdiction and proceeded to trial, where a jury
ruled against the Bank on three claims, including the discrimination
claim. The court awarded the Longs damages plus interest. In a
supplemental judgment, the court also gave the Longs an option to
purchase that portion of the fee land they still occupied, nullifying
the Bank’s sale of the land to non-Indians. After the Tribal Court of
Appeals affirmed, the Bank filed suit in Federal District Court, con-
tending that the tribal judgment was null and void because, as rele-
vant here, the Tribal Court lacked jurisdiction over the Longs’ dis-
crimination claim. The District Court granted the Longs summary
judgment, finding tribal court jurisdiction proper because the Bank’s
consensual relationship with the Longs and their company (also a re-
spondent here) brought the Bank within the first category of tribal
civil jurisdiction over nonmembers outlined in Montana v. United
States, 450 U.S. 544. The Eighth Circuit affirmed, concluding that
the Tribe had authority to regulate the business conduct of persons
voluntarily dealing with tribal members, including a nonmember’s
sale of fee land.
2 PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO.
Syllabus
Held:
1. The Bank has Article III standing to pursue this challenge. Both
with respect to damages and the option to purchase, the Bank was
“injured in fact,” see Lujan v. Defenders of Wildlife, 504 U.S. 555,
560, by the Tribal Court’s exercise of jurisdiction over the discrimina-
tion claim. This Court is unpersuaded by the Longs’ claim that the
damages award was premised entirely on their breach-of-contract
verdict, which the Bank has not challenged, rather than on their dis-
crimination claim. Because the verdict form allowed the jury to make
a damages award after finding liability as to any of the individual
claims, the jury could have based its damages award, in whole or in
part, on the discrimination finding. The Bank was also injured by
the option to purchase. Only the Longs’ discrimination claim sought
deed to the land as relief. The fact that the remedial purchase option
applied only to a portion of the total parcel does not eliminate the in-
jury to the Bank, which had no obligation to sell any of the land to
the Longs before the Tribal Court’s judgment. That judgment effec-
tively nullified a portion of the sale to a third party. These injuries
can be remedied by a ruling that the Tribal Court lacked jurisdiction
and that its judgment on the discrimination claim is null and void.
Pp. 5–8.
2. The Tribal Court did not have jurisdiction to adjudicate a dis-
crimination claim concerning the non-Indian Bank’s sale of its fee
land. Pp. 8–24.
(a) The general rule that tribes do not possess authority over
non-Indians who come within their borders, Montana v. United
States, 450 U.S. 564, 565, restricts tribal authority over nonmember
activities taking place on the reservation, and is particularly strong
when the nonmember’s activity occurs on land owned in fee simple by
non-Indians, Strate v. A-1 Contractors, 520 U.S. 438, 446. Once
tribal land is converted into fee simple, the tribe loses plenary juris-
diction over it. See County of Yakima v. Confederated Tribes and
Bands of Yakima Nation, 502 U.S. 251, 267–268. Moreover, when
the tribe or its members convey fee land to third parties, the tribe
“loses any former right of absolute and exclusive use and occupation
of the conveyed lands.” South Dakota v. Bourland, 508 U.S. 679,
689. Thus, “the tribe has no authority itself . . . to regulate the use of
fee land.” Brendale v. Confederated Tribes and Bands of Yakima Na-
tion, 492 U.S. 408, 430. Montana provides two exceptions under
which tribes may exercise “civil jurisdiction over non-Indians on their
reservations, even on non-Indian fee lands,” 450 U.S., at 565: (1) “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,
Cite as: 554 U. S. ____ (2008) 3
Syllabus
leases, or other arrangements,” ibid.; and (2) a tribe may exercise
“civil authority over the conduct of non-Indians on fee lands within
the reservation when that conduct threatens or has some direct effect
on the political integrity, the economic security, or the health or wel-
fare of the tribe,” id., at 566. Neither exception authorizes tribal
courts to exercise jurisdiction over the Longs’ discrimination claim.
Pp. 8–11.
(b) The Tribal Court lacks jurisdiction to hear that claim because
the Tribe lacks the civil authority to regulate the Bank’s sale of its
fee land, and “a tribe’s adjudicative jurisdiction does not exceed its
legislative jurisdiction,” Strate, supra, at 453. Montana does not
permit tribes to regulate the sale of non-Indian fee land. Rather, it
permits tribal regulation of nonmember conduct inside the reserva-
tion that implicates the tribe’s sovereign interests. 450 U.S., at 564–
565. With only one exception, see Brendale, supra, this Court has
never “upheld under Montana the extension of tribal civil authority
over nonmembers on non-Indian land,” Nevada v. Hicks, 533 U.S.
353, 360. Nor has the Court found that Montana authorized a tribe
to regulate the sale of such land. This makes good sense, given the
limited nature of tribal sovereignty and the liberty interests of non-
members. Tribal sovereign interests are confined to managing tribal
land, see Worcester v. Georgia, 6 Pet. 515, 561, protecting tribal self-
government, and controlling internal relations, see Montana, supra,
at 564. Regulations approved under Montana all flow from these lim-
ited interests. See, e.g., Duro v. Reina, 495 U.S. 676, 696. None of
these interests justified tribal regulation of a nonmember’s sale of fee
land. The Tribe cannot justify regulation of the sale of non-Indian fee
land by reference to its power to superintend tribal land because non-
Indian fee parcels have ceased to be tribal land. Nor can regulation
of fee land sales be justified by the Tribe’s interest in protecting in-
ternal relations and self-government. Any direct harm sustained be-
cause of a fee land sale is sustained at the point the land passes from
Indian to non-Indian hands. Resale, by itself, causes no additional
damage. Regulating fee land sales also runs the risk of subjecting
nonmembers to tribal regulatory authority without their consent.
Because the Bill of Rights does not apply to tribes and because non-
members have no say in the laws and regulations governing tribal
territory, tribal laws and regulations may be applied only to non-
members who have consented to tribal authority, expressly or by ac-
tion. Even then the regulation must stem from the tribe’s inherent
sovereign authority to set conditions on entry, preserve self-
government, or control internal relations. There is no reason the
Bank should have anticipated that its general business dealings with
the Longs would permit the Tribe to regulate the Bank’s sale of land
4 PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO.
Syllabus
it owned in fee simple. The Longs’ attempt to salvage their position
by arguing that the discrimination claim should be read to challenge
the Bank’s whole course of commercial dealings with them is unavail-
ing. Their breach-of-contract and bad-faith claims involve the Bank’s
general dealings; the discrimination claim does not. The discrimina-
tion claim is tied specifically to the fee land sale. And only the dis-
crimination claim is before the Court. Pp. 11–22.
(c) Because the second Montana exception stems from the same
sovereign interests giving rise to the first, it is also inapplicable here.
The “conduct” covered by that exception must do more than injure a
tribe; it must “imperil the subsistence” of the tribal community.
Montana, 450 U.S., at 566. The land at issue has been owned by a
non-Indian party for at least 50 years. Its resale to another non-
Indian hardly “imperil[s] the subsistence or welfare of the tribe.”
Ibid. Pp. 22–23.
(d) Contrary to the Longs’ argument, when the Bank sought the
Tribal Court’s aid in serving process on the Longs for the Bank’s
pending state-court eviction action, the Bank did not consent to tribal
court jurisdiction over the discrimination claim. The Bank has con-
sistently contended that the Tribal Court lacked jurisdiction. P. 23.
491 F.3d 878, reversed.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,
KENNEDY, THOMAS, and ALITO, JJ., joined, and in which STEVENS,
SOUTER, GINSBURG, and BREYER, JJ., joined as to Part II. GINSBURG, J.,
filed an opinion concurring in part, concurring in the judgment in part,
and dissenting in part, in which STEVENS, SOUTER, and BREYER, JJ.,
joined.
Cite as: 554 U. S. ____ (2008) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–411
_________________
PLAINS COMMERCE BANK, PETITIONER v. LONG
FAMILY LAND AND CATTLE COMPANY,
INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 25, 2008]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
This case concerns the sale of fee land on a tribal reser-
vation by a non-Indian bank to non-Indian individuals.
Following the sale, an Indian couple, customers of the
bank who had defaulted on their loans, claimed the bank
discriminated against them by offering the land to non-
Indians on terms more favorable than those the bank
offered to them. The couple sued on that claim in tribal
court; the bank contested the court’s jurisdiction. The
tribal court concluded that it had jurisdiction and pro-
ceeded to hear the case. It ultimately ruled against the
bank and awarded the Indian couple damages and the
right to purchase a portion of the fee land. The question
presented is whether the tribal court had jurisdiction to
adjudicate a discrimination claim concerning the non-
Indian bank’s sale of fee land it owned. We hold that it
did not.
I
The Long Family Land and Cattle Company, Inc. (Long
2 PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO.
Opinion of the Court
Company or Company), is a family-run ranching and
farming operation incorporated under the laws of South
Dakota. Its lands are located on the Cheyenne River
Sioux Indian Reservation. Once a massive, 60-million
acre affair, the reservation was appreciably diminished by
Congress in the 1880s and at present consists of roughly
11 million acres located in Dewey and Ziebach Counties in
north-central South Dakota. The Long Company is a
respondent here, along with Ronnie and Lila Long, hus-
band and wife, who together own at least 51 percent of the
Company’s shares. Ronnie and Lila Long are both en-
rolled members of the Cheyenne River Sioux Indian Tribe.
The Longs and their Company have been customers for
many years at Plains Commerce Bank (Bank), located
some 25 miles off the reservation as the crow flies in Ho-
ven, South Dakota. The Bank, like the Long Company, is
a South Dakota corporation, but has no ties to the reserva-
tion other than its business dealings with tribal members.
The Bank made its first commercial loan to the Long
Company in 1989, and a series of agreements followed. As
part of those agreements, Kenneth Long—Ronnie Long’s
father and a non-Indian—mortgaged to the Bank 2,230
acres of fee land he owned inside the reservation. At the
time of Kenneth Long’s death in the summer of 1995,
Kenneth and the Long Company owed the Bank $750,000.
In the spring of 1996, Ronnie and Lila Long began
negotiating a new loan contract with the Bank in an effort
to shore up their Company’s flagging financial fortunes
and come to terms with their outstanding debts. After
several months of back-and-forth, the parties finally
reached an agreement in December of that year—two
agreements, to be precise. The Company and the Bank
signed a fresh loan contract, according to which Kenneth
Long’s estate deeded over the previously mortgaged fee
acreage to the Bank in lieu of foreclosure. App. 104. In
return, the Bank agreed to cancel some of the Company’s
Cite as: 554 U. S. ____ (2008) 3
Opinion of the Court
debt and to make additional operating loans. The parties
also agreed to a lease arrangement: The Company re-
ceived a two-year lease on the 2,230 acres, deeded over to
the Bank, with an option to purchase the land at the end
of the term for $468,000. Id., at 96–103.
It is at this point, the Longs claim, that the Bank began
treating them badly. The Longs say the Bank initially
offered more favorable purchase terms in the lease agree-
ment, allegedly proposing to sell the land back to the
Longs with a 20-year contract for deed. The Bank eventu-
ally rescinded that offer, the Longs claim, citing “ ‘possible
jurisdictional problems’ ” that might have been caused by
the Bank financing an “ ‘Indian owned entity on the reser-
vation.’ ” 491 F.3d 878, 882 (CA8 2007) (case below).
Then came the punishing winter of 1996–1997. The
Longs lost over 500 head of cattle in the blizzards that
season, with the result that the Long Company was un-
able to exercise its option to purchase the leased acreage
when the lease contract expired in 1998. Nevertheless,
the Longs refused to vacate the property, prompting the
Bank to initiate eviction proceedings in state court and to
petition the Cheyenne River Sioux Tribal Court to serve
the Longs with a notice to quit. In the meantime, the
Bank sold 320 acres of the fee land it owned to a non-
Indian couple. In June 1999, while the Longs continued to
occupy a 960-acre parcel of the land, the Bank sold the
remaining 1,910 acres to two other nonmembers.
In July 1999, the Longs and the Long Company filed
suit against the Bank in the Tribal Court, seeking an
injunction to prevent their eviction from the property and
to reverse the sale of the land. They asserted a variety of
claims, including breach of contract, bad faith, violation of
tribal-law self-help remedies, and discrimination. The
discrimination claim alleged that the Bank sold the land
to nonmembers on terms more favorable than those of-
fered the Company. The Bank asserted in its answer that
4 PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO.
Opinion of the Court
the court lacked jurisdiction and also stated a counter-
claim. The Tribal Court found that it had jurisdiction,
denied the Bank’s motion for summary judgment on its
counterclaim, and proceeded to trial. Four causes of ac-
tion were submitted to the seven-member jury: breach of
contract, bad faith, violation of self-help remedies, and
discrimination.
The jury found for the Longs on three of the four causes,
including the discrimination claim, and awarded a
$750,000 general verdict. After denying the Bank’s post-
trial motion for judgment notwithstanding the verdict by
finding again that it had jurisdiction to adjudicate the
Longs’ claims, the Tribal Court entered judgment award-
ing the Longs $750,000 plus interest. A later supplemen-
tal judgment further awarded the Longs an option to
purchase the 960 acres of the land they still occupied on
the terms offered in the original purchase option, effec-
tively nullifying the Bank’s previous sale of that land to
non-Indians.
The Bank appealed to the Cheyenne River Sioux Tribal
Court of Appeals, which affirmed the judgment of the trial
court. The Bank then filed the instant action in the
United States District Court for the District of South
Dakota, seeking a declaration that the tribal judgment
was null and void because, as relevant here, the Tribal
Court lacked jurisdiction over the Longs’ discrimination
claim. The District Court granted summary judgment to
the Longs. The court found tribal court jurisdiction proper
because the Bank had entered into a consensual relation-
ship with the Longs and the Long Company. 440 F. Supp.
2d 1070, 1077–1078, 1080–1081 (SD 2006). According to
the District Court, this relationship brought the Bank
within the first category of tribal civil jurisdiction over
nonmembers outlined in Montana v. United States, 450
U.S. 544 (1981). See 440 F. Supp. 2d, at 1077–1078.
The Court of Appeals for the Eighth Circuit affirmed.
Cite as: 554 U. S. ____ (2008) 5
Opinion of the Court
491 F.3d 878. The Longs’ discrimination claim, the court
held, “arose directly from their preexisting commercial
relationship with the bank.” Id., at 887. When the Bank
chose to deal with the Longs, it effectively consented to
substantive regulation by the tribe: An antidiscrimination
tort claim was just another way of regulating the commer-
cial transactions between the parties. See ibid. In sum,
the Tribe had authority to regulate the business conduct of
persons who “voluntarily deal with tribal members,” in-
cluding, here, a nonmember’s sale of fee land. Ibid.
We granted certiorari, 552 U. S. ___ (2008), and now
reverse.
II
Before considering the Tribal Court’s authority to adju-
dicate the discrimination claim, we must first address the
Longs’ contention that the Bank lacks standing to raise
this jurisdictional challenge in the first place. Though the
Longs raised their standing argument for the first time
before this Court, we bear an independent obligation to
assure ourselves that jurisdiction is proper before proceed-
ing to the merits. See Steel Co. v. Citizens for Better Envi-
ronment, 523 U.S. 83, 94–95 (1998).
We begin by noting that whether a tribal court has
adjudicative authority over nonmembers is a federal ques-
tion. See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15
(1987); National Farmers Union Ins. Cos. v. Crow Tribe,
471 U.S. 845, 852–853 (1985). If the tribal court is found
to lack such jurisdiction, any judgment as to the nonmem-
ber is necessarily null and void. The Longs do not contest
this settled principle but argue instead that the Bank has
suffered no “injury in fact” as required by Article III’s
case-or-controversy provision. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992).
The Longs appear to recognize their argument is some-
what counterintuitive. They concede the jury found the
6 PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO.
Opinion of the Court
Bank guilty of discrimination and awarded them $750,000
plus interest. But the Longs contend the jury’s damages
award was in fact premised entirely on their breach-of-
contract rather than on their discrimination claim. The
Bank does not presently challenge the breach-of-contract
verdict.
In support of their argument, the Longs point to their
amended complaint in the Tribal Court. The complaint
comprised nine counts. Several of the counts sought dam-
ages; the discrimination count did not. As relief for the
discrimination claim, the Longs asked to be granted “pos-
session and title to their land.” App. 173. The Longs
contend that the damage award therefore had nothing to
do with the discrimination claim. As a result, a decision
from this Court finding no jurisdiction with respect to that
claim—the only claim the Bank appeals—would not
change anything.
We are not persuaded. The jury verdict form consisted
of six special interrogatories, covering each claim asserted
against the Bank, with another one covering the amount
of damages to be awarded. Id., at 190–192. The damages
interrogatory specifically allowed the jury to make an
award after finding liability as to any of the individual
claims: “If you answered yes to Numbers 1, 3, 4, or 5 what
amount of damages should be awarded to the Plaintiffs?”
Id., at 192 (emphasis added). The jury found against the
Bank on three of the special interrogatories, including
number 4, the discrimination claim. The Bank, the jurors
found, “intentionally discriminate[d] against the Plaintiffs
Ronnie and Lila Long.” Id., at 191. The jury then entered
an award of $750,000. Id., at 192. These facts establish
that the jury could have based its damages award, in
whole or in part, on the finding of discrimination.
There is, in addition, the option to purchase. The Longs
argue that requiring the Bank to void the sale to non-
members of a 960–acre parcel and sell that parcel to them
Cite as: 554 U. S. ____ (2008) 7
Opinion of the Court
instead does not constitute injury-in-fact, because the
Tribal Court actually denied the relief the Longs sought
for the Bank’s discrimination. In its supplemental judg-
ment, the Tribal Court refused to permit the Longs (or the
Long Company) to purchase all the land—as they had
requested—instead granting an option to purchase only
the 960 acres the Longs occupied at the time. See Sup-
plemental Judgment in No. R–120–99, Long Family Land
& Cattle Co. v. Maciejewski, (Feb. 18, 2003), App. to Pet.
for Cert. A–69 to A–70. Even this partial relief, the Longs
insist, was crafted as an equitable remedy for their
breach-of-contract claim, see Brief for Respondents 32–34,
and in any event the Bank really suffered no harm, be-
cause it would gain as much income selling to the Longs as
it did selling to the nonmembers, see id., at 34–35.
These arguments do not defeat the Bank’s standing.
The Longs requested, as a remedy for the alleged dis-
crimination, “possession and title” to the subject land.
App. 173. They received an option to acquire a portion of
exactly that. See App. to Pet. for Cert. A–69 to A–70. The
Tribal Court’s silence in its supplemental judgment as to
which claim, exactly, the option to purchase was meant to
remedy is immaterial. See ibid. Of the four claims pre-
sented to the jury, only the discrimination claim sought
deed to the land as relief. See Amended Complaint (Jan.
3, 2000), App. 158, 173. Nor does the fact that the reme-
dial purchase option applied only to a portion of the total
parcel eliminate the Bank’s injury. The Bank had no
obligation to sell the land to the Longs before the Tribal
Court’s judgment—indeed, the Bank had already sold the
acreage to third parties. The Tribal Court judgment effec-
tively nullified a portion of that sale. This judicially im-
posed burden certainly qualifies as an injury for standing
purposes. As for the Longs’ speculation that the Bank
would make as much money selling the land to them as it
did selling the parcel to nonmembers, the argument is
8 PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO.
Opinion of the Court
entirely beside the point. There is more than adequate
injury in being compelled to undo one deed and enter into
another—particularly with individuals who had previously
defaulted on loans.
Both with respect to damages and the option to pur-
chase, the Bank was injured by the Tribal Court’s exercise
of jurisdiction over the discrimination claim. Those inju-
ries can be remedied by a ruling in favor of the Bank that
the Tribal Court lacked jurisdiction and that its judgment
on the discrimination claim is null and void. The ultimate
collateral consequence of such a determination, whatever
it may be—vacatur of the general damages award, vacatur
of the option to purchase, a new trial on the other claims—
does not alter the fact that the Bank has shown injury
traceable to the challenged action and likely to be re-
dressed by a favorable ruling. Allen v. Wright, 468 U.S.
737, 751 (1984). The Bank has Article III standing to
pursue this challenge.
III
A
For nearly two centuries now, we have recognized In-
dian tribes as “distinct, independent political communi-
ties,” Worcester v. Georgia, 6 Pet. 515, 559 (1832), qualified
to exercise many of the powers and prerogatives of self-
government, see United States v. Wheeler, 435 U.S. 313,
322–323 (1978). We have frequently noted, however, that
the “sovereignty that the Indian tribes retain is of a
unique and limited character.” Id., at 323. It centers on
the land held by the tribe and on tribal members within
the reservation. See United States v. Mazurie, 419 U.S.
544, 557 (1975) (tribes retain authority to govern “both
their members and their territory,” subject ultimately to
Congress); see also Nevada v. Hicks, 533 U.S. 353, 392
(2001) (“[T]ribes retain sovereign interests in activities
that occur on land owned and controlled by the tribe”)
Cite as: 554 U. S. ____ (2008) 9
Opinion of the Court
(O’Connor, J., concurring in part and concurring in
judgment).
As part of their residual sovereignty, tribes retain power
to legislate and to tax activities on the reservation, includ-
ing certain activities by nonmembers, see Kerr-McGee
Corp. v. Navajo Tribe, 471 U.S. 195, 201 (1985), to deter-
mine tribal membership, see Santa Clara Pueblo v. Marti-
nez, 436 U.S. 49, 55 (1978), and to regulate domestic
relations among members, see Fisher v. District Court of
Sixteenth Judicial Dist. of Mont., 424 U.S. 382, 387–389
(1976) (per curiam). They may also exclude outsiders from
entering tribal land. See Duro v. Reina, 495 U.S. 676,
696–697 (1990). But tribes do not, as a general matter,
possess authority over non-Indians who come within their
borders: “[T]he inherent sovereign powers of an Indian
tribe do not extend to the activities of nonmembers of the
tribe.” Montana, at 450 U.S., at 565. As we explained in
Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978), the
tribes have, by virtue of their incorporation into the
American republic, lost “the right of governing . . . per-
son[s] within their limits except themselves.” Id., at 209
(emphasis and internal quotation marks omitted).
This general rule restricts tribal authority over non-
member activities taking place on the reservation, and is
particularly strong when the nonmember’s activity occurs
on land owned in fee simple by non-Indians—what we
have called “non-Indian fee land.” Strate v. A–1 Contrac-
tors, 520 U.S. 438, 446 (1997) (internal quotation marks
omitted). Thanks to the Indian General Allotment Act of
1887, 24 Stat. 388, as amended, 25 U.S. C. §331 et seq.,
there are millions of acres of non-Indian fee land located
within the contiguous borders of Indian tribes. See Atkin-
son Trading Co. v. Shirley, 532 U.S. 645, 648, 651, n. 1
(2001). The history of the General Allotment Act and its
successor statutes has been well rehearsed in our prece-
dents. See, e.g., Montana, supra, at 558–563; County of
10 PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO.
Opinion of the Court
Yakima v. Confederated Tribes and Bands of Yakima
Nation, 502 U.S. 251, 254–255 (1992). Suffice it to say
here that the effect of the Act was to convert millions of
acres of formerly tribal land into fee simple parcels, “fully
alienable,” id., at 264, and “free of all charge or encum-
brance whatsoever,” 25 U.S. C. §348 (2000 ed., Supp. V).
See F. Cohen, Handbook of Federal Indian Law
§16.03[2][b], pp. 1041–1042 (2005 ed.) (hereinafter Cohen).
Our cases have made clear that once tribal land is con-
verted into fee simple, the tribe loses plenary jurisdiction
over it. See County of Yakima, supra, at 267–268 (General
Allotment Act permits Yakima County to impose
ad valorem tax on fee land located within the reservation);
Goudy v. Meath, 203 U.S. 146, 140–150 (1906) (by render-
ing allotted lands alienable, General Allotment Act ex-
posed them to state assessment and forced sale for taxes);
In re Heff, 197 U.S. 488, 502–503 (1905) (fee land subject
to plenary state jurisdiction upon issuance of trust patent
(superseded by the Burke Act, 34 Stat. 182, 25 U.S. C.
§349) (2000 ed.)). Among the powers lost is the authority
to prevent the land’s sale, see County of Yakima, supra, at
263 (General Allotment Act granted fee holders power of
voluntary sale)—not surprisingly, as “free alienability” by
the holder is a core attribute of the fee simple, C. Moyni-
han, Introduction to Law of Real Property §3, p. 32 (2d ed.
1988). Moreover, when the tribe or tribal members convey
a parcel of fee land “to non-Indians, [the tribe] loses any
former right of absolute and exclusive use and occupation
of the conveyed lands.” South Dakota v. Bourland, 508
U.S. 679, 689 (1993) (emphasis added). This necessarily
entails the “the loss of regulatory jurisdiction over the use
of the land by others.” Ibid. As a general rule, then, “the
tribe has no authority itself, by way of tribal ordinance or
actions in the tribal courts, to regulate the use of fee land.”
Brendale v. Confederated Tribes and Bands of Yakima
Nation, 492 U.S. 408, 430 (1989) (opinion of White, J.).
Cite as: 554 U. S. ____ (2008) 11
Opinion of the Court
We have recognized two exceptions to this principle,
circumstances in which tribes may exercise “civil jurisdic-
tion over non-Indians on their reservations, even on non-
Indian fee lands.” Montana, 450 U.S., at 565. First, “[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 com-
mercial dealing, contracts, leases, or other arrangements.”
Ibid. Second, a tribe may exercise “civil authority over the
conduct of non-Indians on fee lands within the 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 566. These rules have
become known as the Montana exceptions, after the case
that elaborated them. By their terms, the exceptions
concern regulation of “the activities of nonmembers” or
“the conduct of non-Indians on fee land.”
Given Montana’s “ ‘general proposition that the inherent
sovereign powers of an Indian tribe do not extend to the
activities of nonmembers of the tribe,’ ” Atkinson, supra, at
651 (quoting Montana, supra, at 565), efforts by a tribe to
regulate nonmembers, especially on non-Indian fee land,
are “presumptively invalid,” Atkinson, supra, at 659. The
burden rests on the tribe to establish one of the exceptions
to Montana’s general rule that would allow an extension of
tribal authority to regulate nonmembers on non-Indian fee
land. Atkinson, 532 U.S., at 654. These exceptions are
“limited” ones, id., at 647, and cannot be construed in a
manner that would “swallow the rule,” id., at 655, or
“severely shrink” it, Strate, 520 U.S., at 458. The Bank
contends that neither exception authorizes tribal courts to
exercise jurisdiction over the Longs’ discrimination claim
at issue in this case. We agree.
B
According to our precedents, “a tribe’s adjudicative
12 PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO.
Opinion of the Court
jurisdiction does not exceed its legislative jurisdiction.”
Id., at 453. We reaffirm that principle today and hold that
the Tribal Court lacks jurisdiction to hear the Longs’
discrimination claim because the Tribe lacks the civil
authority to regulate the Bank’s sale of its fee land.
The Longs’ discrimination claim challenges a non-
Indian’s sale of non-Indian fee land. Despite the Longs’
attempt to recharacterize their claim as turning on the
Bank’s alleged “failure to pay to respondents loans prom-
ised for cattle-raising on tribal trust land,” Brief for Re-
spondents 47, in fact the Longs brought their discrimina-
tion claim “seeking to have the land sales set aside on the
ground that the sale to nonmembers ‘on terms more favor-
able’ than the bank had extended to the Longs” violated
tribal tort law, 491 F.3d, at 882 (quoting Plaintiffs’
Amended Complaint, App. 173). See also Brief for United
States as Amicus Curiae 7. That discrimination claim
thus concerned the sale of a 2,230-acre fee parcel that the
Bank had acquired from the estate of a non-Indian.
The status of the land is relevant “insofar as it bears on
the application of . . . Montana’s exceptions to [this] case.”
Hicks, 533 U.S., at 376 (SOUTER, J., concurring). The
acres at issue here were alienated from the Cheyenne
River Sioux’s tribal trust and converted into fee simple
parcels as part of the Act of May 27, 1908, 35 Stat. 312,
commonly called the 1908 Allotment Act. See Brief for
Respondents 4, n. 2. While the General Allotment Act
provided for the division of tribal land into fee simple
parcels owned by individual tribal members, that Act also
mandated that such allotments would be held in trust for
their owners by the United States for a period of 25
years—or longer, at the President’s discretion—during
which time the parcel owners had no authority to sell or
convey the land. See 25 U.S. C. §348 (2000 ed., and Supp.
V). The 1908 Act released particular Indian owners from
these restrictions ahead of schedule, vesting in them full
Cite as: 554 U. S. ____ (2008) 13
Opinion of the Court
fee ownership. See §1, 35 Stat. 312. In 1934, Congress
passed the Indian Reorganization Act, 48 Stat. 984, 25
U.S. C. §461 et seq., which “pu[t] an end to further allot-
ment of reservation land,” but did not “return allotted land
to pre-General Allotment status, leaving it fully alienable
by the allottees, their heirs, and assigns.” County of
Yakima, 502 U.S., at 264.
The tribal tort law the Longs are attempting to enforce,
however, operates as a restraint on alienation. It “set[s]
limits on how nonmembers may engage in commercial
transactions,” 491 F.3d, at 887—and not just any transac-
tions, but specifically nonmembers’ sale of fee lands they
own. It regulates the substantive terms on which the
Bank is able to offer its fee land for sale. Respondents and
their principal amicus, the United States, acknowledge
that the tribal tort at issue here is a form of regulation.
See Brief for Respondents 52; Brief for United States as
Amicus Curiae 25–26; see also Riegel v. Medtronic, Inc.,
552 U. S. ___, ___ (2008) (slip op., at 11). They argue the
regulation is fully authorized by the first Montana excep-
tion. They are mistaken.
Montana does not permit Indian tribes to regulate the
sale of non-Indian fee land. Montana and its progeny
permit tribal regulation of nonmember conduct inside the
reservation that implicates the tribe’s sovereign interests.
Montana expressly limits its first exception to the “activi-
ties of nonmembers,” 450 U.S., at 565, allowing these to
be regulated to the extent necessary “to protect tribal self-
government [and] to control internal relations,” id., at 564.
See Big Horn Cty. Elect. Cooperative, Inc. v. Adams, 219
F.3d 944, 951 (CA9 2000) (“Montana does not grant a
tribe unlimited regulatory or adjudicative authority over a
nonmember. Rather, Montana limits tribal jurisdiction
under the first exception to the regulation of the activities
of nonmembers” (internal quotations omitted; emphasis
added)).
14 PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO.
Opinion of the Court
We cited four cases in explanation of Montana’s first
exception. Each involved regulation of non-Indian activi-
ties on the reservation that had a discernable effect on the
tribe or its members. The first concerned a tribal court’s
jurisdiction over a contract dispute arising from the sale of
merchandise by a non-Indian to an Indian on the reserva-
tion. See Williams v. Lee, 358 U.S. 217 (1959). The other
three involved taxes on economic activity by nonmembers.
See Washington v. Confederated Tribes of Colville Reserva-
tion, 447 U.S. 134, 152–153 (1980) (in cases where “the
tribe has a significant interest in the subject matter,”
tribes retain “authority to tax the activities or property of
non-Indians taking place or situated on Indian lands”);
Morris v. Hitchcock, 194 U.S. 384, 393 (1904) (upholding
tribal taxes on nonmembers grazing cattle on Indian-
owned fee land within tribal territory); Buster v. Wright,
135 F. 947, 950 (CA8 1905) (Creek Nation possessed power
to levy a permit tax on nonmembers for the privilege of
doing business within the reservation).
Our cases since Montana have followed the same pat-
tern, permitting regulation of certain forms of nonmember
conduct on tribal land. We have upheld as within the
tribe’s sovereign authority the imposition of a severance
tax on natural resources removed by nonmembers from
tribal land. See Merrion v. Jicarilla Apache Tribe, 455
U.S. 130 (1982). We have approved tribal taxes imposed
on leasehold interests held in tribal lands, as well as sales
taxes imposed on nonmember businesses within the reser-
vation. See Kerr-McGee, 471 U.S., at 196–197. We have
similarly approved licensing requirements for hunting and
fishing on tribal land. See New Mexico v. Mescalero
Apache Tribe, 462 U.S. 324, 337 (1983).
Tellingly, with only “one minor exception, we have never
upheld under Montana the extension of tribal civil author-
ity over nonmembers on non-Indian land.” Hicks, supra,
at 360 (emphasis added). See Atkinson, 532 U.S., at 659
 Cite as: 554 U. S. ____ (2008) 15
Opinion of the Court
(Tribe may not tax nonmember activity on non-Indian fee
land); Strate, 520 U.S., at 454, 457 (tribal court lacks
jurisdiction over tort suit involving an accident on non-
tribal land); Montana, supra, at 566 (Tribe has no author-
ity to regulate nonmember hunting and fishing on non-
Indian fee land). The exception is Brendale v. Confeder-
ated Tribes and Bands of Yakima Nation, 492 U.S. 408,
and even it fits the general rubric noted above: In that
case, we permitted a tribe to restrain particular uses of
non-Indian fee land through zoning regulations. While a
six-Justice majority held that Montana did not authorize
the Yakima Nation to impose zoning regulations on non-
Indian fee land located in an area of the reservation where
nearly half the acreage was owned by nonmembers, 492
U.S., at 430–431 (opinion of White, J.); id., at 444–447
(opinion of STEVENS, J.), five Justices concluded that
Montana did permit the Tribe to impose different zoning
restrictions on nonmember fee land isolated in “the heart
of [a] closed portion of the reservation,” 492 U.S., at 440
(opinion of STEVENS, J.), though the Court could not agree
on a rationale, see id., at 443–444 (same); id., at 458–459
(opinion of Blackmun, J.).
But again, whether or not we have permitted regulation
of nonmember activity on non-Indian fee land in a given
case, in no case have we found that Montana authorized a
tribe to regulate the sale of such land. Rather, our Mon-
tana cases have always concerned nonmember conduct on
the land. See, e.g., Hicks, 533 U.S., at 359 (Montana and
Strate concern “tribal authority to regulate nonmembers’
activities on [fee] land” (emphasis added)); Atkinson, 532
U.S., at 647 (“conduct of nonmembers on non-Indian fee
land”); id., at 660 (SOUTER, J., concurring) (“the activities
of nonmembers); Bourland, 508 U.S., at 689 (“use of the
land”); Brendale, supra, at 430 (“use of fee land”); Mon-
tana, supra, at 565 (first exception covers “activities of
16 PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO.
Opinion of the Court
nonmembers”).1
The distinction between sale of the land and conduct on
it is well-established in our precedent, as the foregoing
cases demonstrate, and entirely logical given the limited
nature of tribal sovereignty and the liberty interests of
nonmembers. By virtue of their incorporation into the
United States, the tribe’s sovereign interests are now
confined to managing tribal land, see Worcester, 6 Pet., at
561 (persons are allowed to enter Indian land only “with
the assent of the [tribal members] themselves”), “pro-
tect[ing] tribal self-government,” and “control[ling] inter-
nal relations,” see Montana, supra, at 564. The logic of
Montana is that certain activities on non-Indian fee land
(say, a business enterprise employing tribal members) or
certain uses (say, commercial development) may intrude
on the internal relations of the tribe or threaten tribal self-
rule. To the extent they do, such activities or land uses
may be regulated. See Hicks, supra, at 361 (“Tribal asser-
tion of regulatory authority over nonmembers must be
connected to that right of the Indians to make their own
laws and be governed by them”). Put another way, certain
forms of nonmember behavior, even on non-Indian fee
land, may sufficiently affect the tribe as to justify tribal
oversight. While tribes generally have no interest in
regulating the conduct of nonmembers, then, they may
regulate nonmember behavior that implicates tribal gov-
ernance and internal relations.
The regulations we have approved under Montana all
flow directly from these limited sovereign interests. The
——————
1 JUSTICE GINSBURG questions this distinction between sales and ac-
tivities on the ground that “[s]ales of land—and related conduct—are
surely ‘activities’ within the ordinary sense of the word.” Post, at 6. We
think the distinction is readily understandable. In any event, the
question is not whether a sale is, in some generic sense, an action. The
question is whether land ownership and sale are “activities” within the
meaning of Montana and the other cited precedents.
Cite as: 554 U. S. ____ (2008) 17
Opinion of the Court
tribe’s “traditional and undisputed power to exclude per-
sons” from tribal land, Duro, 495 U.S., at 696, for exam-
ple, gives it the power to set conditions on entry to that
land via licensing requirements and hunting regulations.
See Bourland, supra, at 691, n. 11 (“Regulatory authority
goes hand in hand with the power to exclude”). Much
taxation can be justified on a similar basis. See Colville,
447 U.S., at 153 (taxing power “may be exercised over . . .
nonmembers, so far as such nonmembers may accept
privileges of trade, residence, etc., to which taxes may be
attached as conditions” (quoting Powers of Indian Tribes,
55 I. D. 14, 46 (1934; emphasis added). The power to tax
certain nonmember activity can also be justified as “a
necessary instrument of self-government and territorial
management,” Merrion, 455 U.S., at 137, insofar as taxa-
tion “enables a tribal government to raise revenues for its
essential services,” to pay its employees, to provide police
protection, and in general to carry out the functions that
keep peace and order, ibid.
JUSTICE GINSBURG wonders why these sorts of regula-
tions are permissible under Montana but regulating the
sale of fee land is not. See post, at 6–7. The reason is that
regulation of the sale of non-Indian fee land, unlike the
above, cannot be justified by reference to the tribe’s sover-
eign interests. By definition, fee land owned by nonmem-
bers has already been removed from the tribe’s immediate
control. See Strate, 520 U.S., at 456 (tribes lack power to
“assert [over non-Indian fee land] a landowner’s right to
occupy and exclude”). It has already been alienated from
the tribal trust. The tribe cannot justify regulation of such
land’s sale by reference to its power to superintend tribal
land, then, because non-Indian fee parcels have ceased to
be tribal land.
Nor can regulation of fee land sales be justified by the
tribe’s interests in protecting internal relations and self-
government. Any direct harm to its political integrity that
18 PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO.
Opinion of the Court
the tribe sustains as a result of fee land sale is sustained
at the point the land passes from Indian to non-Indian
hands. It is at that point the tribe and its members lose
the ability to use the land for their purposes. Once the
land has been sold in fee simple to non-Indians and passed
beyond the tribe’s immediate control, the mere resale of
that land works no additional intrusion on tribal relations
or self-government. Resale, by itself, causes no additional
damage.
This is not to suggest that the sale of the land will have
no impact on the tribe. The uses to which the land is put
may very well change from owner to owner, and those uses
may well affect the tribe and its members. As our cases
bear out, see supra, at 14–16, the tribe may quite legiti-
mately seek to protect its members from noxious uses that
threaten tribal welfare or security, or from nonmember
conduct on the land that does the same. But the key point
is that any threat to the tribe’s sovereign interests flows
from changed uses or nonmember activities, rather than
from the mere fact of resale. The tribe is able fully to
vindicate its sovereign interests in protecting its members
and preserving tribal self-government by regulating non-
member activity on the land, within the limits set forth in
our cases. The tribe has no independent interest in re-
straining alienation of the land itself, and thus, no author-
ity to do so.
Not only is regulation of fee land sale beyond the tribe’s
sovereign powers, it runs the risk of subjecting nonmem-
bers to tribal regulatory authority without commensurate
consent. Tribal sovereignty, it should be remembered, is
“a sovereignty outside the basic structure of the Constitu-
tion.” United States v. Lara, 541 U.S. 193, 212 (2004)
(KENNEDY, J., concurring in judgment). The Bill of Rights
does not apply to Indian tribes. See Talton v. Mayes, 163
U.S. 376, 382–385 (1896). Indian courts “differ from
traditional American courts in a number of significant
Cite as: 554 U. S. ____ (2008) 19
Opinion of the Court
respects.” Hicks, 533 U.S., at 383 (SOUTER, J., concur-
ring). And nonmembers have no part in tribal govern-
ment—they have no say in the laws and regulations that
govern tribal territory. Consequently, those laws and
regulations may be fairly imposed on nonmembers only if
the nonmember has consented, either expressly or by his
actions. Even then, the regulation must stem from the
tribe’s inherent sovereign authority to set conditions on
entry, preserve tribal self-government, or control internal
relations. See Montana, 450 U.S., at 564.
In commenting on the policy goals Congress adopted
with the General Allotment Act, we noted that “[t]here is
simply no suggestion” in the history of the Act “that Con-
gress intended that the non-Indians who would settle
upon alienated allotted lands would be subject to tribal
regulatory authority.” Id., at 560, n. 9. In fact, we said it
“defies common sense to suppose” that Congress meant to
subject non-Indians to tribal jurisdiction simply by virtue
of the nonmember’s purchase of land in fee simple. Ibid.
If Congress did not anticipate tribal jurisdiction would run
with the land, we see no reason why a nonmember would
think so either.
The Longs point out that the Bank in this case could
hardly have been surprised by the Tribe’s assertion of
regulatory power over the parties’ business dealings. The
Bank, after all, had “lengthy on-reservation commercial
relationships with the Long Company.” Brief for Respon-
dents 40. JUSTICE GINSBURG echoes this point. See post,
at 4. But as we have emphasized repeatedly in this con-
text, when it comes to tribal regulatory authority, it is not
“in for a penny, in for a Pound.” Atkinson, 532 U.S., at
656 (internal quotation marks omitted). The Bank may
reasonably have anticipated that its various commercial
dealings with the Longs could trigger tribal authority to
regulate those transactions—a question we need not and
do not decide. But there is no reason the Bank should
20 PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO.
Opinion of the Court
have anticipated that its general business dealings with
respondents would permit the Tribe to regulate the Bank’s
sale of land it owned in fee simple.
Even the courts below recognized that the Longs’ dis-
crimination claim was a “novel” one. 491 F.3d, at 892. It
arose “directly from Lakota tradition as embedded in
Cheyenne River Sioux tradition and custom,” including
the Lakota “sense of justice, fair play and decency to oth-
ers.” 440 F. Supp. 2d, at 1082 (internal quotation marks
omitted). The upshot was to require the Bank to offer the
same terms of sale to a prospective buyer who had de-
faulted in several previous transactions with the Bank as
it offered to a different buyer without such a history of
default. This is surely not a typical regulation. But what-
ever the Bank anticipated, whatever “consensual relation-
ship” may have been established through the Bank’s
dealing with the Longs, the jurisdictional consequences of
that relationship cannot extend to the Bank’s subsequent
sale of its fee land.
The Longs acknowledge, if obliquely, the critical impor-
tance of land status. They emphasize that the Long Com-
pany “operated on reservation fee and trust lands,” Brief
for Respondents 40, and n. 24, 41, and note that “the fee
land at issue in the lease-repurchase agreement” had
previously belonged to a tribal member, id., at 47. These
facts, however, do not change the status of the land at the
time of the challenged sale. Regardless of where the Long
Company operated, the fee land whose sale the Longs seek
to restrain was owned by the Bank at the relevant time.
And indeed, before that, it was owned by Kenneth Long, a
non-Indian. See Hicks, supra, at 382, n. 4 (SOUTER, J.,
concurring) (“Land status . . . might well have an impact
under one (or perhaps both) of the Montana exceptions”),
Atkinson, supra, at 659 (SOUTER, J., concurring) (status of
territory as “tribal or fee land may have much to do (as it
does here) with the likelihood (or not) that facts will exist
Cite as: 554 U. S. ____ (2008) 21
Opinion of the Court
that are relevant under the [Montana] exceptions”).
The Longs attempt to salvage their position by arguing
that the discrimination claim is best read to challenge the
Bank’s whole course of commercial dealings with the
Longs stretching back over a decade—not just the sale of
the fee land. Brief for Respondents 44. That argument is
unavailing. The Longs are the first to point out that their
breach-of-contract and bad-faith claims, which do involve
the Bank’s course of dealings, are not before this Court.
Ibid. Only the discrimination claim is before us and that
claim is tied specifically to the sale of the fee land.2 Ibid.
Count six of the Longs’ amended complaint in the Tribal
Court alleges that “[i]n selling the Longs’ land, [Plains
Commerce Bank] unfairly discriminated against the Com-
pany and the Longs.” App. 172–173 (emphasis added). As
relief, the Longs claimed they “should get possession and
title to their land back.” Id., at 173. The Longs’ discrimi-
nation claim, in short, is an attempt to regulate the terms
on which the Bank may sell the land it owns.3
Such regulation is outside the scope of a tribe’s sover-
eign authority. JUSTICE GINSBURG asserts that if “[t]he
Federal Government and every State, county, and munici-
——————
2 JUSTICE GINSBURG contends that if the Tribal Court has jurisdiction
over the Longs’ other claims, it is hard to understand why jurisdiction
would not also extend to the discrimination claim. Post, at 8. First, we
have not said the Tribal Court has jurisdiction over the other claims:
That question is not before us and we decline to speculate as to its
answer. Moreover, the claims on which the Longs prevailed concern
breach of a loan agreement, see App. 190, and bad faith in connection
with Bureau of Indian Affairs loan guarantees, see id., at 192. The
present claim involves substantive regulation of the sale of fee land.
3 We point to the relief requested by the Longs—and partially granted
by the Tribal Court—to rebut the Longs’ contention that their claim did
not focus on the sale of the fee land. Contrary to JUSTICE GINSBURG’s
assertion, however, the nature of this remedy does not drive our juris-
dictional ruling. See post, at 11–12. The remedy is invalid because
there is no jurisdiction, not the other way around.
22 PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO.
Opinion of the Court
pality can make nondiscrimination the law governing . . .
real property transactions,” tribes should be able to do so
as well. Post, at 8. This argument completely overlooks
the very reason cases like Montana and this one arise:
Tribal jurisdiction, unlike the jurisdiction of the other
governmental entities cited by JUSTICE GINSBURG, gener-
ally does not extend to nonmembers. See Montana, supra,
at 565. The sovereign authority of Indian tribes is limited
in ways state and federal authority is not. Contrary to
JUSTICE GINSBURG’s suggestion, that bedrock principle
does not vary depending on the desirability of a particular
regulation.
Montana provides that, in certain circumstances, tribes
may exercise authority over the conduct of nonmembers,
even if that conduct takes place on non-Indian fee land.
But conduct taking place on the land and the sale of the
land are two very different things. The Cheyenne River
Sioux Tribe lost the authority to restrain the sale of fee
simple parcels inside their borders when the land was sold
as part of the 1908 Allotment Act. Nothing in Montana
gives it back.
C
Neither the District Court nor the Court of Appeals
relied for its decision on the second Montana exception.
The Eighth Circuit declined to address the exception’s
applicability, see 491 F.3d, at 888, n. 7, while the District
Court strongly suggested in passing that the second excep-
tion would not apply here, see 440 F. Supp. 2d, at 1077.
The District Court is correct, for the same reasons we
explained above. The second Montana exception stems
from the same sovereign interests that give rise to the
first, interests that do not reach to regulating the sale of
non-Indian fee land.
The second exception authorizes the tribe to exercise
civil jurisdiction when non-Indians’ “conduct” menaces the
Cite as: 554 U. S. ____ (2008) 23
Opinion of the Court
“political integrity, the economic security, or the health or
welfare of the tribe.” Montana, 450 U.S., at 566. The
conduct must do more than injure the tribe, it must “im-
peril the subsistence” of the tribal community. Ibid. One
commentator has noted that “th[e] elevated threshold for
application of the second Montana exception suggests that
tribal power must be necessary to avert catastrophic
consequences.” Cohen §4.02[3][c], at 232, n. 220.
The sale of formerly Indian-owned fee land to a third
party is quite possibly disappointing to the tribe, but
cannot fairly be called “catastrophic” for tribal self-
government. See Strate, 520 U.S., at 459. The land in
question here has been owned by a non-Indian party for at
least 50 years, Brief for Respondents 4, during which time
the project of tribal self-government has proceeded with-
out interruption. The land’s resale to another non-Indian
hardly “imperil[s] the subsistence or welfare of the tribe.”
Montana, supra, at 566. Accordingly, we hold the second
Montana exception inapplicable in this case.
D
Finally, we address the Longs’ argument that the Bank
consented to tribal court jurisdiction over the discrimina-
tion claim by seeking the assistance of tribal courts in
serving a notice to quit. Brief for Respondents 44–46.
When the Longs refused to vacate the land, the Bank
initiated eviction proceedings in South Dakota state court.
The Bank then asked the Tribal Court to appoint a process
server able to reach the Longs. Seeking the Tribal Court’s
aid in serving process on tribal members for a pending
state-court action does not, we think, constitute consent to
future litigation in the Tribal Court. Notably, when the
Longs did file their complaint against the Bank in Tribal
Court, the Bank promptly contended in its answer that
the court lacked jurisdiction. Brief for United States as
Amicus Curiae 7. Under these circumstances, we find that
24 PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO.
Opinion of the Court
the Bank did not consent by its litigation conduct to tribal
court jurisdiction over the Longs’ discrimination claim.
* * *
The judgment of the Court of Appeals for the Eighth
Circuit is reversed.
It is so ordered.
Cite as: 554 U. S. ____ (2008) 1
Opinion of GINSBURG, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–411
_________________
PLAINS COMMERCE BANK, PETITIONER v. LONG
FAMILY LAND AND CATTLE COMPANY,
INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 25, 2008]
JUSTICE GINSBURG, with whom JUSTICE STEVENS,
JUSTICE SOUTER, and JUSTICE BREYER join, concurring in
part, concurring in the judgment in part, and dissenting in
part.
I agree with the Court that petitioner Plains Commerce
Bank (Bank) has Article III standing to contest the juris-
diction of the Cheyenne River Sioux Tribal Court, and
therefore join Part II of the Court’s opinion. Further, I
take no issue with the Court’s jurisdictional ruling insofar
as it relates to the Tribal Court’s supplemental judgment.
In that judgment, the Tribal Court ordered the Bank to
give Ronnie and Lila Long an option to repurchase fee
land the Bank had already contracted to sell to non-Indian
individuals. See App. to Pet. for Cert. A–69 to A–71.
I dissent from the Court’s decision, however, to the
extent that it overturns the Tribal Court’s principal judg-
ment awarding the Longs damages in the amount of
$750,000 plus interest. See App. 194–196. That judgment
did not disturb the Bank’s sale of fee land to non-Indians.
It simply responded to the claim that the Bank, in its on-
reservation commercial dealings with the Longs, treated
them disadvantageously because of their tribal affiliation
and racial identity. A claim of that genre, I would hold, is
one the Tribal Court is competent to adjudicate. As the
2 PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO.
Opinion of GINSBURG, J.
Court of Appeals correctly understood, the Longs’ case, at
heart, is not about “the sale of fee land on a tribal reserva-
tion by a non-Indian bank to non-Indian individuals,”
ante, at 1. “Rather, this case is about the power of the
Tribe to hold nonmembers like the bank to a minimum
standard of fairness when they voluntarily deal with tribal
members.” 491 F.3d 878, 887 (CA8 2007) (case below).
As the basis for their discrimination claim, the Longs
essentially asserted that the Bank offered them terms and
conditions on land-financing transactions less favorable
than the terms and conditions offered to non-Indians.
Although the Tribal Court could not reinstate the Longs as
owners of the ranch lands that had been in their family for
decades, that court could hold the Bank answerable in
damages, the law’s traditional remedy for the tortious
injury the Longs experienced.
I
In the pathmarking case, Montana v. United States, 450
U.S. 544, 564–565 (1981), this Court restated that, absent
a treaty or statute, Indian tribes generally lack authority
to regulate the activities of nonmembers. While stating
the general rule, Montana also identified two exceptions:
“A tribe may regulate, through taxation, licensing, or
other means, the activities of nonmembers who enter
consensual relationships with the tribe or its mem-
bers, 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
omitted).
These two exceptions, Montana explained, recognize that
Cite as: 554 U. S. ____ (2008) 3
Opinion of GINSBURG, J.
“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.” Id., at 565
(emphasis added).
Montana specifically addressed the regulatory jurisdic-
tion of tribes. See id., at 557. This Court has since clari-
fied that when a tribe has authority to regulate the activ-
ity of nonmembers, tribal courts presumably have
adjudicatory authority over disputes arising out of that
activity. See Strate v. A–1 Contractors, 520 U.S. 438, 453
(1997) (as to nonmembers, a tribe’s adjudicative jurisdic-
tion coincides with its legislative jurisdiction). In my view,
this is a clear case for application of Montana’s first or
“consensual relationships” exception. I therefore do not
reach the Longs’ alternative argument that their com-
plaint also fits within Montana’s second exception.
Ronnie and Lila Long, husband and wife and owners of
the Long Family Land and Cattle Company (Long Com-
pany), are enrolled members of the Cheyenne River Sioux
Tribe. Although the Long Company was incorporated in
South Dakota, the enterprise “was overwhelmingly tribal
in character, as were its interactions with the bank.” 491
F.3d, at 886. All Long Company property was situated—
and all operations of the enterprise occurred—within the
Cheyenne River Sioux Indian Reservation. The Long
Company’s articles of incorporation required Indian own-
ership of a majority of the corporation’s shares. This
requirement reflected the Long Company’s status as an
Indian-owned business entity eligible for Bureau of Indian
Affairs (BIA) loan guarantees. See 25 CFR §103.25 (2007)
(requiring at least 51% Indian ownership). Loan guaran-
tees are among the incentives the BIA offers to promote
the development of on-reservation Indian enterprises. The
Long Company “was formed to take advantage of [the] BIA
incentives.” 491 F.3d, at 886.
The history of the Bank’s commercial dealings with the
4 PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO.
Opinion of GINSBURG, J.
Long Company and the Long family is lengthy and com-
plex. The business relationship dates from 1988, when
Ronnie Long’s parents—one of them a member of the
Tribe—mortgaged some 2,230 acres of land to the Bank to
gain working capital for the ranch. As security for the
Bank’s loans over the years, the Longs mortgaged both
their land and their personal property. The Bank bene-
fited significantly from the Long Company’s status as an
Indian-owned business entity, for the BIA loan guarantees
“allowed [it] to greatly reduce its lending risk.” Ibid.
Eventually, the Bank collected from the BIA almost
$400,000, more than 80% of the net losses resulting from
its loans to the Longs. See 440 F. Supp. 2d 1070, 1078 (SD
2007) (case below); App. 135–138.
The discrimination claim here at issue rests on the
allegedly unfair conditions the Bank exacted from the
Longs when they sought loans to sustain the operation of
their ranch. Following the death of Ronnie’s father, the
Bank and the Longs entered into an agreement under
which the mortgaged land would be deeded over to the
Bank in exchange for the Bank’s canceling some debt and
making additional loans to keep the ranch in business.
The Longs were given a two-year lease on the property
with an option to buy the land back when the lease term
expired. Negotiating sessions for these arrangements
were held at the Tribe’s on-reservation offices and were
facilitated by tribal officers and BIA employees. 491 F.3d,
at 881.
Viewing the deal they were given in comparative light,
the Longs charged that the Bank offered to resell ranch
land to them on terms less advantageous than those the
Bank offered in similar dealings with non-Indians. Their
claim, all courts prior to this one found, fit within the
Montana exception for “activities of nonmembers who
enter [into] . . . commercial dealing, contracts, leases, or
other arrangements” with tribal members. 450 U. S., at
Cite as: 554 U. S. ____ (2008) 5
Opinion of GINSBURG, J.
565. Cf. Strate, 520 U.S., at 457 (citing Williams v. Lee,
358 U.S. 217, 223 (1959)) (Montana’s consensual-
relationships exception justifies tribal-court adjudication
of claims “arising out of on-reservation sales transaction
between nonmember plaintiff and member defendants”). I
am convinced that the courts below got it right.
This case, it bears emphasis, involves no unwitting
outsider forced to litigate under unfamiliar rules and
procedures in tribal court. Cf. Nevada v. Hicks, 533 U.S.
353, 382–385 (2001) (SOUTER, J., concurring). Hardly a
stranger to the tribal court system, the Bank regularly
filed suit in that forum. See Brief for Cheyenne River
Sioux Tribe as Amicus Curiae 29–31. The Bank enlisted
tribal-court aid to serve notice to quit on the Longs in
connection with state-court eviction proceedings. The
Bank later filed a counterclaim for eviction and motion for
summary judgment in the case the Longs commenced in
the Tribal Court. In its summary judgment motion, the
Bank stated, without qualification, that the Tribal Court
“ha[d] jurisdiction over the subject matter of this action.”
App. 187–188. Had the Bank wanted to avoid responding
in tribal court or the application of tribal law, the means
were readily at hand: The Bank could have included forum
selection, choice-of-law, or arbitration clauses in its
agreements with the Longs, which the Bank drafted. See
Brief for Respondents 42.
II
Resolving this case on a ground neither argued nor
addressed below, the Court holds that a tribe may not
impose any regulation—not even a nondiscrimination
requirement—on a bank’s dealings with tribal members
regarding on-reservation fee lands. See ante, at 1, 21–22.
I do not read Montana or any other case so to instruct, and
find the Court’s position perplexing.
First, I question the Court’s separation of land sales tied
6 PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO.
Opinion of GINSBURG, J.
to lending activities from other “activities of nonmembers
who enter consensual relationships with the tribe or its
members,” Montana, 450 U.S., at 565. Sales of land—and
related conduct—are surely “activities” within the ordi-
nary sense of the word. See, e.g., County of Yakima v.
Confederated Tribes and Bands of Yakima Nation, 502
U.S. 251, 269 (1992) (“The excise tax remains a tax upon
the Indian’s activity of selling the land . . . .” (emphasis
added)). Cf. 14 Oxford English Dictionary 388 (2d ed.
1989) (defining “sale” as “[t]he action or an act of selling”
(def. 1(a))).
Second, the Court notes the absence of any case
“f[i]nd[ing] that Montana authorized a tribe to regulate
the sale of [non-Indian fee] land.” Ante, at 15. But neither
have we held that Montana prohibits all such regulation.
If the Court in Montana, or later cases, had intended to
remove land sales resulting from loan transactions en-
tirely from tribal governance, it could have spoken plainly
to that effect. Instead, Montana listed as examples of
consensual relationships that tribes might have authority
to regulate “commercial dealing, contracts, [and] leases.”
450 U.S., at 565. Presumably, the reference to “leases”
includes leases of fee land. But why should a nonmem-
ber’s lease of fee land to a member be differentiated, for
Montana exception purposes, from a sale of the same
land? And why would the enforcement of an antidiscrimi-
nation command be less important to tribal self-rule and
dignity, cf. ante, at 16–18, when the command relates to
land sales than when it relates to other commercial rela-
tionships between nonmembers and members?
III
As earlier observed, see supra, at 1, I agree that the
Tribal Court had no authority to grant the Longs an op-
tion to purchase the 960-acre parcel the Bank had con-
tracted to sell to individuals unaffiliated with the Tribe.
Cite as: 554 U. S. ____ (2008) 7
Opinion of GINSBURG, J.
The third parties’ contracts with the Bank cannot be
disturbed based on Montana’s exception for “the activities
of nonmembers who enter consensual relationships with
the tribe or its members.” 450 U.S., at 565. Although the
Tribal Court overstepped in its supplemental judgment
ordering the Bank to give the Longs an option to purchase
land third parties had contracted to buy, see App. to Pet.
for Cert. A–69 to A–71, it scarcely follows that the Tribal
Court lacked jurisdiction to adjudicate the Longs’ dis-
crimination claim, and to order in its principal judgment,
see App. 194–196, monetary relief.1
The Court recognizes that “[t]he Bank may reasonably
have anticipated that its various commercial dealings with
the Longs could trigger tribal authority to regulate those
transactions.” Ante, at 19. Today’s decision, furthermore,
purports to leave the Longs’ breach-of-contract and bad-
faith claims untouched. Ante, at 21, n. 2. Noting that the
Bank “does not presently challenge the breach-of-contract
verdict,” ante, at 6, the Court emphasizes that “[o]nly the
discrimination claim is before us and that claim is tied
specifically to the sale of the fee land,” ante, at 21. But if
the Tribal Court is a proper forum for the Longs’ claim
that the Bank has broken its promise or acted deceptively
in the land-financing transactions at issue, one is hard put
to understand why the Tribe could not likewise enforce in
its courts a law that commands: Thou shall not discrimi-
nate against tribal members in the terms and conditions
——————
1 The Longs joined their discrimination claim with claims of breach of
contract and bad-faith dealings. The jury found in favor of the Longs
on all three claims. App. 190–192. The latter claims alleged that the
Bank “never provided the . . . operating loans” promised during the
parties’ negotiations. 491 F.3d 878, 882 (CA8 2007). “[A]s a result,”
the Longs asserted, “the company was not able [to] sustain its ranching
operation through the particularly harsh winter of 1996–97.” Ibid.
Nothing in the Court’s opinion precludes decision of those claims by the
Tribal Court. See ante, at 6, 8, 21, n. 2.
8 PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO.
Opinion of GINSBURG, J.
you offer them in those same transactions. The Federal
Government and every State, county, and municipality
can make nondiscrimination the law governing contracts
generally, and real property transactions in particular.
See, e.g., 42 U.S. C. §§1981, 1982. Why should the Tribe
lack comparable authority to shield its members against
discrimination by those engaging in on-reservation com-
mercial relationships—including land-secured lending—
with them?
A
The “fighting issue” in the tribal trial court, the Eighth
Circuit underscored, “was whether the bank denied the
Longs favorable terms on a deal solely on the basis of their
race or tribal affiliation.” 491 F.3d, at 891. The Longs
maintained that the Bank initially offered them more
favorable terms, proposing to sell the mortgaged land back
to them with a 20-year contract for deed. Thereafter, the
Bank sent a letter to Ronnie Long withdrawing its initial
offer, “citing ‘possible jurisdictional problems’ posed by the
Long Company’s status as an ‘Indian owned entity on the
reservation.’ ” Id., at 882 (quoting Letter from Charles
Simon, Vice President, Bank of Hoven, to Ronnie Long
(Apr. 26, 1996), App. 91). In the final agreement, the
Bank promised no long-term financing; instead, it gave the
Longs only a two-year lease with an option to purchase
that required a large balloon payment within 60 days of
the lease’s expiration. When the Longs were unable to
make the required payment within the specified deadline,
the Bank sold the land to nonmembers on more favorable
terms.
In their complaint, the Longs alleged that the Bank
allowed the non-Indians “ten years to pay for the land, but
the bank would not permit [the] Longs even 60 days to pay
for their land,” and that “[s]uch unfair discrimination by
the bank prevented the Longs and the [Long] Company
Cite as: 554 U. S. ____ (2008) 9
Opinion of GINSBURG, J.
from buying back their land from the bank.” App. 173.
Although the allegations about the Bank’s contracts to sell
to nonmembers were central to the Longs’ lawsuit, those
transactions with third parties were not the wrong about
which the Longs complained. Rather, as the tribal trial
court observed, the contracts with nonmembers simply
supplied “evidence that the Bank denied the Longs the
privilege of contracting for a deed because of their status
as tribal members.” App. to Pet. for Cert. A–78 to A–79
(emphasis added).
The Tribal Court instructed the jury to hold the Bank
liable on the discrimination claim only if the less favorable
terms given to the Longs rested “solely” upon the Longs’
“race or tribal identity.” 491 F.3d, at 883 (internal quota-
tion marks omitted). In response to a special interroga-
tory, the jury found that “the Defendant Bank intention-
ally discriminate[d] against the Plaintiffs Ronnie and Lila
Long [in the lease with option to purchase] based solely
upon their status as Indians or tribal members.” App.
191. Neither the instruction nor the special finding neces-
sitated regulation of, or interference with, the Bank’s fee-
land sales to non-Indian individuals. See ante, at 1.2
Tellingly, the Bank’s principal jurisdictional argument
——————
2 The Court criticizes the Tribal Court for “requir[ing] the Bank to
offer the same terms of sale to a prospective buyer who had defaulted in
several previous transactions with the Bank as it offered to a different
buyer without such a history of default.” Ante, at 20. That criticism is
unfair. First, the record does not confirm that the Longs were riskier
buyers than the nonmembers to whom the Bank eventually sold the
land. Overlooked by the Court, the Bank’s loans to the Longs were
sheltered by BIA loan guarantees. See supra, at 3–4. Further, a
determination that the Longs had encountered intentional discrimina-
tion based solely on their status as tribal members in no way inhibited
the Bank from differentiating evenhandedly among borrowers based on
their creditworthiness. The proscription of discrimination simply
required the Bank to offer the Longs the same terms it would have
offered similarly situated non-Indians.
10 PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO.
Opinion of GINSBURG, J.
below bore no relationship to the position the Court em-
braces. The Bank recognized that the Longs were indeed
complaining about discriminatory conduct of a familiar
sort. Cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413
(1968) (42 U.S. C. §1982 “bars all racial discrimination
. . . in the sale or rental of property”). In Hicks, 533 U.S.
353, this Court held that tribal courts could not exercise
jurisdiction over a claim arising under federal law, in that
case, 42 U.S. C. §1983. Relying on Hicks, the Bank in-
sisted that the Longs’ discrimination claim could not be
heard in tribal court because it arose under well-known
federal antidiscrimination law, specifically, 42 U.S. C.
§1981 or §2000d. 491 F.3d, at 882–883. The Tribal Court
of Appeals, however, held that the claim arose under
Lakota common law, which resembled federal and state
antidiscrimination measures. See App. to Pet. for Cert. A–
54 to A–55, and n. 5.3
B
The Longs requested a remedy the Tribal Court did not
have authority to grant—namely, an option to repurchase
land the Bank had already contracted to sell to nonmem-
——————
3 The Court types the Longs’ discrimination claim as “ ‘novel,’ ” ante,
at 20 (quoting 491 F.3d, at 892), because the Tribal Court of Appeals
derived the applicable law “ ‘directly from Lakota tradition,’ ” ante, at 20
(quoting 440 F. Supp. 2d 1070, 1082 (SD 2007) (case below)). Concern-
ing the content of the Tribe’s law, however, the appeals court drew not
only from “Tribal tradition and custom,” it also looked to federal and
state law. See App. to Pet. for Cert. A–55. Just as state courts may
draw upon federal law when appropriate, see, e.g., Dawson v. Bi-
renbaum, 968 S.W.2d 663, 666–667 (Ky. 1998), and federal courts may
look to state law to fill gaps, see, e.g., United States v. Kimbell Foods,
Inc., 440 U.S. 715, 728–730 (1979), so too may tribal courts “borrow
from the law of . . . the federal government,” see F. Cohen, Handbook of
Federal Indian Law §4.05[1], p. 275 (2005 ed.). With regard to checks
against discrimination, as the Tribal Court of Appeals observed, “there
is a direct and laudable convergence of federal, state, and tribal con-
cern.” App. to Pet. for Cert. A–55 to A–56.
Cite as: 554 U. S. ____ (2008) 11
Opinion of GINSBURG, J.
ber third parties. See supra, at 6–7. That limitation,
however, does not affect the court’s jurisdiction to hear the
Longs’ discrimination claim and to award damages on
that claim. “The nature of the relief available after juris-
diction attaches is, of course, different from the question
whether there is jurisdiction to adjudicate the contro-
versy.” Avco Corp. v. Machinists, 390 U.S. 557, 561
(1968). See also Davis v. Passman, 442 U.S. 228, 239–
240, n. 18 (1979) (“[J]urisdiction is a question of whether a
federal court has the power . . . to hear a case”; “relief is a
question of the various remedies a federal court may make
available.”).
Under the procedural rules applicable in Cheyenne
River Sioux Tribal Courts, as under the Federal Rules,
demand for one form of relief does not confine a trial
court’s remedial authority. See Law and Order Code of
Cheyenne River Sioux Tribe, Rule Civ. Proc. 25(c)(1)
(“[E]very final judgment shall grant the relief to which the
party in whose favor it is rendered is entitled, even if such
relief is not demanded in the pleadings.”); Fed. Rule Civ.
Proc. 54(c) (materially identical). A court does not lose
jurisdiction over a claim merely because it lacks authority
to provide the form of relief a party primarily demands.
See Avco, 390 U.S., at 560–561; 10 C. Wright, A. Miller, &
M. Kane, Federal Practice and Procedure §2664, pp. 181–
182 (3d ed. 1998) (“[I]t is not . . . the type of relief re-
quested in the demand that determines whether the court
has jurisdiction.”).4 In such a case, authority to provide
another remedy suffices to permit the court to adjudicate
the merits of the claim. See Avco, 390 U.S., at 560–561.
——————
4 As in this case, see App. 177–179, the complaint in Avco sought
injunctive relief, but also included a residual clause asking for other
relief, see Avco Corp. v. Aero Lodge No. 735, Int’l Assn. of Mach. and
Aerospace Workers, 376 F.2d 337, 339 (CA6 1967).
12 PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO.
Opinion of GINSBURG, J.
* * *
For the reasons stated, I would leave undisturbed the
Tribal Court’s initial judgment, see App. 194–196, award-
ing the Longs damages, prejudgment interest, and costs as
redress for the Bank’s breach of contract, bad faith, and
discrimination. Accordingly, I would affirm in large part
the judgment of the Court of Appeals.