As “domestic dependent nations,”1 Indian tribes retain all inherent sovereign powers “not withdrawn by treaty or [federal] statute, or by implication as a necessary result of their dependent status.”2 In Montana v. United States,3 the Supreme Court articulated the “general proposition”4 that Indian tribes’ exercise of civil regulatory authority over nonmembers is inconsistent with the tribes’ dependent status.5 Mindful of contrary precedent,6 the Court recognized two exceptions to the Montana rule: First, a tribe may regulate the “activities of nonmembers who enter consensual relationships with the tribe or its members.”7 Second, a tribe may regulate the conduct of non-Indians “when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”8 Recently, in Dolgencorp, Inc. v. Mississippi Band of Choctaw Indians,9 the Fifth Circuit explored the outer boundaries of the Montana rule by becoming the first federal court of appeals to endorse a tribal court’s exercise of jurisdiction over a nonmember tort defendant under Montana’s consensual-relationship exception.10 In the course of its analysis, the Fifth Circuit held that federal courts have no independent obligation to identify defects in tribal courts’ subject matter jurisdiction.11 The Dolgencorp court’s characterization of limitations on tribal jurisdiction as waivable in federal court underscores the parallels between the rule of Montana and the constitutional doctrine of personal jurisdiction.
Historically, tribes exercised broad sovereign authority within reservation boundaries, ordinarily limitable only by an explicit treaty provision or an act of Congress.12 That premise of territorial sovereignty was upended by the Supreme Court’s 1978 decision in Oliphant v. Suquamish Indian Tribe,13 which abrogated tribal criminal jurisdiction over non-Indians.14 Explaining its decision in Oliphant, the Court reasoned that the ability to prosecute non-Indians, like the ability to conduct foreign relations and alienate tribal lands, was “part of sovereignty which the Indians implicitly lost by virtue of their dependent status.”15 In 1981, the Montana Court invoked Oliphant’s “implicit divestiture”16 rationale to hold that Indian tribes’ civil regulatory authority does not typically extend to nonmembers.17 In the thirty-four years since Montana was decided, the Supreme Court has steadily narrowed both exceptions to the rule18 while extending Montana’s scope to tribes’ taxation powers19 and adjudicative authority.20
Against this jurisdictional backdrop, Dolgencorp, Inc. (Dolgencorp),21 a Kentucky corporation,22 has for more than a decade operated a Dollar General store on tribal trust land located within the boundaries of the Choctaw Indian Reservation.23 The Dollar General store has operated pursuant to a lease agreement between Dolgencorp and the Mississippi Band of Choctaw Indians (the Tribe), as well as a business license issued by the Tribe.24 In 2003, Dale Townsend, the store’s non-Indian manager, volunteered Dolgencorp’s participation in the Youth Opportunity Program (YOP), a work-experience program operated by the Tribe that seeks to place young tribal members in short-term, unpaid positions with local businesses in exchange for job training and mentorship.25 As part of the YOP, John Doe, a minor and member of the Tribe, was assigned to the Dollar General store for a temporary work placement.26 Doe subsequently reported Townsend to tribal authorities, alleging that Townsend had molested him while he worked in the store under Townsend’s supervision.27
In January 2005, Doe and his parents brought an action against Townsend and Dolgencorp in the Choctaw Tribal Court — the Tribe’s trial court — seeking to recover compensatory and punitive damages for Townsend’s allegedly tortious activity.28 The Does further asserted that Dolgencorp was independently liable for having negligently hired, trained, and supervised Townsend.29 Both Townsend and Dolgencorp moved to dismiss the Does’ action, arguing that the tribal court lacked subject matter jurisdiction to hear the case under the rule of Montana.30 In an oral ruling in July 2005, Judge Collins rejected the defendants’ arguments and held that the Choctaw Tribal Court could exercise adjudicative jurisdiction over the two nonmember defendants.31 Townsend and Dolgencorp appealed Judge Collins’s jurisdictional ruling to the Choctaw Supreme Court, which found jurisdiction to be proper under both exceptions to Montana.32
Having exhausted tribal court remedies, Dolgencorp and Townsend sought injunctive relief in the United States District Court for the Southern District of Mississippi, where they argued that the Choctaw Tribal Court lacked subject matter jurisdiction to hear the Does’ complaint.33 Judge Lee first rejected the Choctaw Supreme Court’s legal conclusion that Townsend’s and Dolgencorp’s allegedly tortious activity implicated tribal preservation or self-governance, finding such a conclusion to be “[m]anifestly . . . a far broader application of Montana’s second exception than is warranted.”34 After finding that tribal court jurisdiction over Townsend was no more justified by Montana’s first exception, Judge Lee enjoined the Does’ tribal court action against Townsend.35 Judge Lee subsequently granted the Tribe’s motion for summary judgment as to Dolgencorp.36 Judge Lee reasoned that by allowing Doe to work as an apprentice in its store, Dolgencorp had created a consensual relationship with the Tribe.37 As the Does’ tort claims were based on the conduct of a Dolgencorp employee during Doe’s tenure at the store, Judge Lee concluded that the Does’ action was sufficiently connected to that relationship to support tribal jurisdiction.38 Dolgencorp appealed Judge Lee’s decision to the Fifth Circuit, challenging on a variety of grounds Judge Lee’s legal conclusion that the Does and the Tribe had satisfied the requirements of Montana’s consensual-relationship exception.39
A split Fifth Circuit panel affirmed in an opinion authored by Judge Graves.40 The majority first dismissed Dolgencorp’s contention that there existed an insufficient nexus between the Does’ tort claims and Dolgencorp’s participation in the YOP.41 “In essence,” Judge Graves wrote, “a tribe that has agreed to place a minor tribe member as an unpaid intern in a business located on tribal land on a reservation is attempting to regulate the safety of the child’s workplace.”42 For the court, Dolgencorp’s decision to position an allegedly sexually dangerous individual in that workplace “ha[d] an obvious nexus to Dolgencorp’s participation in the YOP.”43 Next, the panel majority considered Dolgencorp’s argument that the Supreme Court’s decision in Plains Commerce Bank v. Long Family Land & Cattle Co.44 “provided additional strictures to be utilized in the ‘consensual relationship’ analysis”45 by implying that tribes may regulate only those consensual relationships that “intrude on the internal relations of the tribe or threaten tribal self-rule.”46 The court declined to adopt Dolgencorp’s reading of Plains Commerce Bank, reasoning that the Plains Commerce Bank dictum47 merely restated the proposition that the ability to regulate consensual relationships on reservation land is “plainly central to the tribe’s power of self-government.”48
Lastly, despite having failed to raise the issue before Judge Lee, Dolgencorp argued on appeal that because its allegedly negligent hiring, training, and supervision of Townsend occurred off the Tribe’s reservation — and the Does’ tribal court complaint failed to allege otherwise — a decision affirming the Choctaw Tribal Court’s authority to adjudicate the controversy would allow the Tribe to regulate off-reservation conduct,49 presumably in violation of federal common law.50 Though the question of tribal court authority over a nonmember presented an issue of subject matter jurisdiction,51 Judge Graves disagreed that the new argument was properly before the court, writing, “Although it is true that defects in federal subject-matter jurisdiction cannot be waived in a federal case, a federal court has no independent obligation to ‘correct’ a tribal court’s lack of subject-matter jurisdiction over another case.”52 Because Dolgencorp failed to demonstrate “extraordinary circumstances,”53 as required by Fifth Circuit precedent governing the consideration of forfeited arguments,54 the panel majority declined to consider Dolgencorp’s untimely argument and affirmed Judge Lee’s decision.55
Judge Smith dissented. For Judge Smith, Fifth Circuit precedent governing the applicability of Supreme Court dicta56 required the court to apply the Plains Commerce Bank Court’s statement that “Montana expressly limits its first exception to the ‘activities of nonmembers,’ allowing these to be regulated to the extent necessary ‘to protect tribal self-government [and] to control internal relations.’”57 Even assuming that Montana’s first exception applied, Judge Smith found lacking the requisite nexus58 between Dolgencorp’s participation in the YOP and the Does’ tort claims59 and further posited that Montana may envisage only tribal regulatory, not adjudicative, jurisdiction over nonmembers.60 After writing that the manifest nature of the common law prohibition against tribal regulation of nonmembers’ off-reservation conduct constituted an “extraordinary circumstance” that warranted consideration of Dolgencorp’s untimely jurisdictional argument on appeal,61 Judge Smith concluded by admonishing the majority for expanding tribal jurisdiction “far beyond the scope permitted by the Supreme Court or any other appellate authority.”62
The nature of the Supreme Court’s post-1978 limitations on tribes’ adjudicative authority escaped characterization for some time.63 In Nevada v. Hicks,64 the Supreme Court explained that such limitations “pertain[] to subject-matter, rather than merely personal, jurisdiction, since [they] turn[] upon whether the actions at issue in the litigation are regulable by the tribe.”65 That label has created the possibility that “courts will attach to tribal court jurisdiction all the incidents of federal subject matter jurisdiction,”66 including, as Dolgencorp argued, federal courts’ refusal to allow litigants to waive subject matter jurisdiction. The Dolgencorp court made an important contribution to federal Indian procedural law by concluding that federal courts have no independent obligation to ensure that tribal courts have subject matter jurisdiction in actions involving nonmember litigants. The Fifth Circuit’s procedural decision, which responds to competing tensions in federal Indian jurisdictional law, suggests that Hicks notwithstanding, the source of restrictions on tribal courts’ jurisdiction may render such limitations incompatible with some attributes of federal subject matter jurisdiction.
Well-established principles of Indian law recognize the tribes as “quasi-sovereign nations”67 whose broad authority over Indian lands is ordinarily limitable only by Congress.68 Since Chief Justice Marshall’s foundational opinion in Worcester v. Georgia,69 in which the Chief Justice recognized tribes’ legitimate claims to territory and self-government by emphasizing that tribal sovereignty over Indian lands had survived European conquest,70 the Supreme Court has repeatedly held that tribal governments exercise the “inherent powers of a limited sovereignty which has never been extinguished.”71 For nearly one hundred fifty years, the Supreme Court’s understanding of tribal authority as sovereign authority limited judges’ ability to restrict the exercise of tribal powers, notwithstanding the implications for individual rights72 or state authority;73 in the years between Worcester and the Court’s 1978 decision in Oliphant, the only two judicial limitations on tribal sovereignty were those abrogating the tribes’ authority to deal with foreign nations and extinguish land title.74
At odds with the traditional rule that federal courts must “tread lightly” to avoid infringing upon tribal sovereignty75 is the Supreme Court’s more recent willingness to restrain tribal authority to protect nonmember litigants.76 The Oliphant Court expressed concern over non-Indians’ unfamiliarity with tribal law and customs.77 The Court justified its decision in Duro v. Reina78 — which extended Oliphant’s rule to nonmember Indians79 — by invoking doubts about the independence and institutional capacity of tribal courts.80 In Strate v. A-1 Contractors,81 the Court balked at defining a rule that would force nonmember defendants to appear in “unfamiliar” tribal courts.82 In Plains Commerce Bank, Chief Justice Roberts explained that due process considerations justify Montana’s general rule and first exception:
[Tribal regulation of the sale of fee land] runs the risk of subjecting nonmembers to tribal regulatory authority without commensurate consent. . . . The Bill of Rights does not apply to Indian tribes. . . . And nonmembers have no part in tribal government — 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.83
The Supreme Court’s attention to fairness considerations in Oliphant, Duro, and Strate, as well as its emphasis on consent as a way to legitimate tribal civil authority in the face of those considerations in Plains Commerce Bank, has prompted some observers to draw parallels between the Supreme Court’s limitations on tribal courts’ jurisdiction and limitations on personal jurisdiction in state and federal courts.84 The Supreme Court’s desire to protect nonmember litigants from unfamiliar and inconvenient tribal forums bears striking similarity to the role of foreseeability and inconvenience to defendants in the personal jurisdiction context.85 The similarity is bolstered by the observation that the formulation of Montana’s two exceptions “mirror[s] the focus on the minimum contacts ‘bargain’ and on forum interests in personal jurisdiction.”86 Likewise, as the Ninth Circuit has recognized, Montana and Hicks coexist somewhat awkwardly in this respect, which is “evident in the fact that the Court has held that ‘consensual relationships’ may create jurisdiction, a holding inconsistent with federal subject matter jurisdiction, though perfectly consistent with principles of personal jurisdiction.”87
Dolgencorp underscores the reality that the dissimilarities between tribal and federal subject matter jurisdiction extend to the purposes that each serves. Limitations on the types of actions that may be adjudicated in federal court have a distinct origin from those that restrict the authority of tribal courts. The former enforce a nonwaivable structural division of public authority among the limited powers of the federal government and the residual authority of the states.88 As federal courts’ adjudication of disputes that fall outside of narrowly defined jurisdictional boundaries necessarily infringes upon state sovereignty,89 the Constitution obligates federal courts to enforce a “harsh rule” of dismissing actions improperly before them, notwithstanding parties’ failure to raise jurisdictional defects.90 Restrictions on tribal adjudicative authority, however, evolved out of the due process considerations expressed by the Court in Oliphant, Duro, Strate, and Plains Commerce Bank.91 The Fifth Circuit’s procedural decision accommodates those considerations by requiring federal courts to consider any colorable jurisdictional arguments raised by nonmember litigants. The approach simultaneously remains faithful to federal courts’ traditional reluctance to infringe upon tribal sovereignty by ordinarily declining to inquire into tribes’ exercise of sovereign powers where nonmember defendants forego a particular jurisdictional argument in the district court.
In the thirty-four years since Montana was decided, the Supreme Court has punctuated a “backdrop of previous case law affirming tribal powers”92 with a series of fact-specific holdings abrogating Indian tribes’ authority over nonmembers.93 The jurisdictional law that has resulted has left lower courts to confront legal questions that fall outside the bounds of the Court’s recent abrogations of tribal jurisdiction and onto an uncertain background rule affirming the importance of tribal jurisdiction and sovereignty. The Fifth Circuit’s adjudication of such a question in Dolgencorp emphasizes the difficulties with the Hicks Court’s label of “subject matter jurisdiction.” By disclaiming any independent obligation to verify that tribal courts have jurisdiction in actions involving nonmember litigants, the Dolgencorp court understood tribal subject matter jurisdiction as providing a right personal to the individual nonmember litigant. That right — like the right to contest a court’s personal jurisdiction94 — may be forfeited. Because the Fifth Circuit’s ruling resolves competing interests underlying federal Indian jurisdictional law as they relate to the question of jurisdictional waiver, Dolgencorp suggests that the distinctive nature of limitations on tribal courts’ jurisdiction may be incompatible with at least some attributes of federal subject matter jurisdiction.