Appeal from the United States District Courtfor the District of NevadaDavid W. Hagen, District Judge, PresidingArgued and SubmittedOctober 7, 1997--San Francisco, CaliforniaWithdrawn from Submission October 10, 1997Resubmitted November 4, 1999Filed November 9, 1999Before: Alfred T. Goodwin, Betty B. Fletcher andPamela Ann Rymer, Circuit Judges.Opinion by Judge B. Fletcher;Dissent by Judge Rymer
_____________________________SUMMARY The summary, which does not constitute a part of the opinion of the court, is copyrighted C 1999 by West Group.
_____________________________Torts/Litigation and ProcedureThe court of appeals affirmed a judgment of the districtcourt. The court held that in an action by a member of anIndian tribe for tribal law torts and civil rights violations com-mitted by state officials while executing a search warrant onIndian-owned land, the tribal court has subject-matter juris-diction that is not lost by its approval of the warrant.Suspecting that evidence of the possession or killing of aprotected bighorn sheep could be found in the residence ofappellee Floyd Hicks, appellant Michael Spencer, a Nevadagame warden, obtained a search warrant from a state court.Because Hicks was a member of the Fallon Paiute-ShoshoneTribe whose residence was on his allotment on the Paiute-Shoshone reservation, the warrant provided that the statecourt lacked jurisdiction over the reservation, and that thewarrant would be valid only if approved by the Fallon TribalCourt.A tribal judge approved the search warrant, but limited thesearch to the exterior premises and any vehicles on it. Accom-panied by a tribal police officer, Spencer executed the war-rant, and seized a mounted sheep-head trophy. However, thetrophy was not a contraband species; Hicks got it back indamaged condition.Spencer obtained another state search warrant. Againaccompanied by tribal police and with tribal court approval,he executed it at Hicks' residence. Once again, it was deter-mined that the bighorn trophies Spencer removed from Hicks'residence were not evidence of any crime.Hicks filed two actions alleging damages resulting from theactions of the state and tribal officials in executing the twosearch warrants. The complaints named Spencer and otherdefendants in both their official and individual capacities, andalleged various claims under the Indian Civil Rights Act, 42U.S.C. S 1983, and tort claims under tribal common law. Thetribal court ruled that it had jurisdiction.The state officials and appellant State of Nevada (Nevada)brought a federal declaratory action regarding the issue oftribal-court jurisdiction. While the parties' summary judgmentmotions were pending, the tribal court granted Hicks' motionsto dismiss the claims against the state officials in their officialcapacities.The district court ruled that the dismissal in tribal courtmooted the issue of tribal court jurisdiction, and granted sum-mary judgment for Hicks. In its order, the court ruled that thetribal court had subject-matter jurisdiction over Hicks' claimsagainst the state officials in their individual capacities. Thecourt also determined that two issues--qualified immunityand the viability of claims against appellant William Molini(Director of the Nevada Department of Wildlife)--werebarred because they had not been exhausted in tribal court.In determining the tribal court's jurisdiction, the districtcourt acknowledged the "general proposition" of Montana v.United States,
450 U.S. 544
(1981). In Montana, the SupremeCourt determined that on non-Indian fee lands, the inherentsovereign powers of a tribe do not extend to the activities ofnonmembers, except that (1) a tribe may regulate the activitiesof nonmembers who enter into consensual relationships withthe tribe or its members; and (2) a tribe may retain inherentpower to exercise civil authority over the conduct of non-Indians within its reservation when it threatens or has somedirect effect on the political integrity, economic security, orhealth and welfare of the tribe.However, the district court concluded that the general prop-osition did not apply because Hicks' allotment was on Indian-owned land, and that even if it did, the facts came within theexceptions to Montana's presumption against tribal jurisdic-tion.Nevada appealed.[1] Tribes lack authority to regulate, and thus power toadjudicate, activities on land alienated to non-Indians. [2]Unlike Montana, the incidents underlying this case occurredon Indian-owned, Indian-controlled land, over which theTribe retained its right to exclude non-members. In theabsence of federal statutes limiting it, the Tribe has exclusivejurisdiction in Indian country over minor crimes committedby Indians. State officers have no jurisdiction over suchcrimes. Before a state official can conduct a search and sei-zure on the reservation to investigate a crime, a search war-rant must be issued by a judge of the tribal court.[3] The warrants in this case bestowed no broad grant ofauthority on the State of Nevada. The Tribe retained sover-eignty over the land on which the searches and seizures tookplace. The land on which Hicks' residence stood was neitheropen to the public, nor controlled or maintained by an entityother than the Tribe. The tribal court was free to exclude stateofficials engaged in law-enforcement activities on the reserva-tion, and was the sole authority to which the state wardencould apply for permission to execute a search warrant on thereservation. Underscoring the exclusivity of tribal jurisdictionwas the fact that the state warden was accompanied by a tribalofficer on the execution of each warrant.[4] Each authorization of the execution of the warrantsmarked an isolated incident in which the tribal court granteda state official permission to enter the reservation as part ofa state investigation into an alleged violation of state law.There was no cessation of criminal jurisdiction or law-enforcement jurisdiction.[5] This case involved no significant alienation of tribalsovereignty and control over law enforcement or Indian-owned land on the reservation. Instead, it concerned theeffects of state officers' actions that not only exceeded thepermission given by the Tribe in the search warrants, butdamaged property that should not have been seized at all.[6] The Montana presumption against tribal-court jurisdic-tion did not apply in this case. The tribe's unfettered powerto exclude state officers from its land implies its authority toregulate the behavior of non-Indians on that land. [7] Once atribe's authority to regulate activities on its land has beendemonstrated, civil jurisdiction regarding those activities fol-lows.[8] Because the tribal court had already ruled on the issueof tribal-court jurisdiction, Nevada exhausted its tribal reme-dies on that issue. The question of tribal-court jurisdiction wastherefore ripe for federal review. The tribal court had subject-matter jurisdiction over the claims brought by Hicks againstthe state officials.[9] The State did not exhaust its remedies regarding thesovereign immunity defense before the tribal court. The courtof appeals therefore did not reach that issue. [10] TheSupreme Court has reaffirmed its decisions requiring theexhaustion of tribal remedies before federal courts rule on thejurisdiction of tribal courts. [11] The district court correctlyapplied this exhaustion requirement to the issue of qualifiedimmunity. [12] A holding by the tribal court that it had juris-diction could not be construed as a ruling on the merits.Judge Rymer dissented, concluding that the Montanapresumption against tribal-court jurisdiction governed thiscase because federal jurisdiction is not limited to casesinvolving fee lands owned by non-Indians, and neither of theMontana exceptions applied.
_____________________________COUNSEL C. Wayne Howle, Deputy Attorney General, Carson City,Nevada, for the plaintiffs-appellants.Melody L. McCoy, Native American Rights Fund, Boulder,Colorado, for the defendants-appellees.Mitchell Wright, Reno, Nevada, for defendant-appellee FloydHicks.
_____________________________OPINION B. FLETCHER, Circuit Judge:This case concerns the jurisdiction of a tribal court overclaims against state officials for tribal common law torts andfederal and tribal civil rights violations. The events giving riseto these claims took place on Indian-owned land on a reserva-tion.The State of Nevada and named state officials appeal thedecision of the district court denying them summary judgmentand granting summary judgment to Floyd Hicks and the tribalcourt. The district court held that the tribal court had jurisdic-tion to hear the suit brought by Hicks against state officialsfor tribal common law torts and federal and tribal civil rightsviolations occurring on Indian-owned land. It also held thatthe tribal court action against the state officials in their indi-vidual capacities was not barred by sovereign immunity. Itdeclined to review on the merits the officials' claims of quali-fied immunity from suit because they had not been exhaustedbefore the tribal court. We affirm the district court's holdingthat the tribal court has jurisdiction, and we affirm its holdingthat the issue of qualified immunity was not exhausted beforethe tribal court and therefore was not properly before the dis-trict court or this court. We conclude the district court simi-larly should have refrained from addressing sovereignimmunity, leaving the issue to the tribal court in the firstinstance.I.Floyd Hicks is an enrolled member of the Fallon Paiute-Shoshone Tribe ("Tribe"), a federally recognized Indian tribewith over 900 members. The Tribe's reservation in westernNevada consists of about 8,000 acres of land held by the fed-eral government in trust for the Tribe and for individual tribalmembers. Hicks lives within the Tribe's reservation on allot-ted land held by the government in trust for him.On August 30, 1990, Michael Spencer, a Nevada stategame warden, obtained a search warrant from the New RiverJustice Court to search Hicks' property for evidence of thepossession or killing of a big horn sheep of the California sub-species, a gross misdemeanor under Nev. Rev. Stat.S 501.376. The warrant provided, however, that the state courtlacked jurisdiction over the Fallon Paiute-Shoshone reserva-tion and that the warrant was valid only if approved by theFallon Tribal Court.That same day, a tribal judge approved the warrant but lim-ited the search to the "exterior premises and any vehiclesthereon." Spencer, accompanied by a tribal police officer,immediately executed the warrant and removed at least onemounted big horn sheep head trophy from Hicks' residence.However, the trophy was apparently of the Rocky Mountainsubspecies, and it was later returned to Hicks, but with somedamage. On June 12, 1991, Spencer applied for and receivedanother state search warrant to seek evidence for the samestate offense. Spencer, along with state game wardens RichEllington and Bill Fitzmorris, executed the warrant that sameday, again accompanied by tribal police and with tribal courtapproval. One or more big horn sheep head trophies wereremoved from Hicks' residence. Once again, it was ultimatelydetermined that the trophies were not evidence of any statecrime or game violation and they were returned to Hicks.Hicks filed two complaints in Fallon Tribal Court formoney damages alleging damages resulting from the actionsof the state and tribal officials on August 30, 1990, and June12, 1991. The complaints named William Molini, Director ofthe Nevada Department of Wildlife, Michael Spencer, Rick[sic] Ellington, and Bill Fitzmorris as defendants in both theirofficial and individual capacities, and alleged a variety ofclaims under the Indian Civil Rights Act ("ICRA"), 25 U.S.C.S 1302, as well as tort claims under tribal common law. Byamended complaint, Hicks claimed violation of unspecifiedfederal and tribal civil rights.1The tribal court held, in a written order, that it had jurisdic-tion over the actions. Following a challenge to Hicks' serviceof process by publication, the tribal court quashed the serviceas ineffective. Following cross-appeals, the Intertribal Appel-late Court reversed and remanded for trial, upholding both theservice of process and the jurisdiction of the tribal court. Twoweeks later, the State of Nevada and the named state officials(hereinafter "Nevada") filed the present action in federal dis-trict court against Hicks, the tribal court and tribal judge(hereinafter "tribal appellees"), for declaratory relief regard-ing the issue of tribal court jurisdiction.2Before the district court, the parties presented cross-motions for summary judgment on whether the tribal courthad jurisdiction over the claims against the state officials.Meanwhile, the tribal court granted Hicks' motions voluntar-ily to dismiss the claims against the state officials in their offi-cial capacity. The district court then held that the dismissalmooted the issue of tribal court jurisdiction over the state offi-cials in their official capacities.After oral argument and supplemental briefing, the districtcourt issued an order denying Nevada's motion for summaryjudgment and granting the motion for summary judgmentmade by Hicks and the tribal appellees. In its order, the dis-trict court held that the Intertribal Court of Appeals did not errin holding that service of process was in accordance withtribal law.3 The district court further held that the tribal courthad subject matter jurisdiction over the claims brought byHicks against the state officials in their individual capacities,and that the claims were not barred by sovereign immunity.Additionally, the district court held that two issues, the claimsof qualified immunity by the state officials and whether anyclaims lie against William Molini, had not been exhausted inthe tribal courts.II.As a threshold issue, the district court correctly held that ithad federal question jurisdiction to determine whether thetribal court had jurisdiction. See 28 U.S.C.S 1331; see alsoNational Farmers Union Ins. Cos. v. Crow Tribe of Indians,
471 U.S. 845
(1985). We review determinations of federallaw regarding the extent of tribal court jurisdiction de novo.See FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311, 1313-14 (9th Cir. 1990), cert. denied,
499 U.S. 943
(1991).In determining the tribal court's jurisdiction, the districtcourt first noted that no federal statutes provide guidance onthe extent of tribal court jurisdiction over civil matters. Thedistrict court then adopted as basic guiding principles the dis-tinction between civil and criminal jurisdiction, and the recog-nition by the courts of "a strong geographic component"distinguishing incidents occurring on Indian-owned land fromthose on non-Indian owned land. The district court alsoacknowledged the "general proposition" of Montana v. UnitedStates,
450 U.S. 544, 565
(1981), that on non-Indian ownedland "the inherent sovereign powers of an Indian tribe do notextend to the activities of nonmembers of the tribe,"4 butdoubted its applicability to the instant case after findingHicks' allotment to be Indian-owned land.The district court suggested instead that the applicable ruleon the facts before it was that of Williams v. Lee: where theunderlying incidents occur on Indian-owned land, tribal courtjurisdiction is presumed unless affirmatively limited by an actof Congress. See Williams v. Lee,
358 U.S. 217, 222
(1959)("This court ha[s] consistently guarded the authority of Indiangovernments over their reservations . . . . If this power is tobe taken away from them, it is for Congress to do it."). How-ever, the district court expressed concern that the SupremeCourt had not yet made clear the circumstances in which theMontana rule should be applied and assumed without decid-ing for the purposes of this case that it would apply. It ulti-mately concluded that, even were Montana to apply, the tribalcourt would still have jurisdiction because the underlyingfacts fell within the exceptions to Montana's general pre-sumption against jurisdiction.Subsequent to the district court's decision, the SupremeCourt decided Strate v. A-1 Contractors,
520 U.S. 438
(1997).Nevada argues on appeal that Strate interprets Montana asprecluding tribal court jurisdiction over civil actions involvingnon-Indians regardless of whether the underlying incidentsoccurred on Indian-owned land or non-Indian owned land.However, the Strate Court made no such determination, a factwe recently noted in County of Lewis v. Allen , 169 F.3d 509,514 (9th Cir. 1998).We now affirm the district court's determination that thetribal court has jurisdiction over the actions underlying theinstant case. We also affirm the district court's rulings on theissues of sovereign immunity and qualified immunity.A.The Court in Strate held that a tribal court lacked jurisdic-tion to hear civil tort claims against a non-Indian brought bythe widow of a tribal member, and her five adult tribal mem-ber children, for injuries occurring on a public highway main-tained by the State of North Dakota under a federally grantedright-of-way over tribal reservation land.
520 U.S. at 442
. InStrate, the Court clarified its interpretation of Montana, whichdealt with tribal regulation of hunting and fishing in a state-owned river running through a reservation. Strate makes clearthat the Court's holding in Montana is equally applicable totribal court jurisdiction over incidents occurring on a highwayrunning through a reservation over which the tribe had cededall right to control access. However, the Strate Court carefullyexpressed "no view on the governing law or proper forumwhen an accident occurs on a tribal road within areservation." Id. at 442 (emphasis added).The Court emphasized in Strate that the decision inMontana related to "reservation land acquired in fee simpleby non-Indian owners." Id. at 446. By contrast, "[t]heMontana Court recognized that the Crow Tribe retainedpower to limit or forbid hunting or fishing by non-memberson land still owned by or held in trust for the Tribe." Id. TheCourt also reiterated that it " `can readily agree,' in accordwith Montana, . . . that tribes retain considerable control overnon-member conduct on tribal land." Id. (quoting Montana,
450 U.S. at 557
). However, finding that the stretch of high-way at issue was "align[ed] . . . for the purpose at hand, withland alienated to non-Indians," the Court in Strate opined thatthe "decision in Montana . . . governs this case," id. at 456,and further decided that neither of the two Montana excep-tions applied to the facts in that case.5 Again in El Paso Natural Gas Co. v. Neztsosie , 119 S.Ct.1430 (1999), the Court emphasized the significance of land-ownership to the jurisdictional inquiry. That case examinedthe extent of the doctrine requiring tribal court exhaustion forclaims arising under the Price Anderson Act. Id. at 1433.Members of the Navajo Nation brought suit against miningcompanies for injuries arising from uranium mining and pro-cessing on the Navajo Nation Reservation by the defendants.Id. at 1434. The Court found for El Paso on the ground thatthe Price-Anderson Act preempted the injury claims, requir-ing that actions for liability for nuclear accidents be broughtonly in federal court. The Court, however, rejected the miningcompanies' argument that under Strate, a tribal court hasjurisdiction over nonmembers only where the tribe has regula-tory jurisdiction with respect to the matter at issue. Id. at 1436n.4. The Court found petitioners' reliance on Strate was mis-placed, because, in contrast to the claims in Strate, whicharose on a state highway, the events at issue in El Pasooccurred on tribal lands. Id.Our post-Strate opinions are consistent with evolvingSupreme Court precedent that stresses membership and rightsof land ownership as sources of tribal power. See, e.g.,William C. Canby, Jr., American Indian Law 72-78, 128-41(1998);6 Allison M. Dussias, Geographically-Based andMembership-Based Views of Indian Tribal Sovereignty: TheSupreme Court's Changing Vision, 55 U.Pitt. L. Rev. 1(1994). In Wilson v. Marchington, 127 F.3d 805 (9th Cir.1997), cert. denied, 118 S.Ct. 1516 (1998), we held that atribal court has no jurisdiction over a suit by a tribal memberagainst a nonmember arising from an accident on a state high-way that runs through the reservation. The facts of Wilsonmirrored the facts of Strate almost precisely: the highway atissue in Wilson was a state highway constructed on a right ofway granted pursuant to a federal statute with the consent ofthe Blackfeet Nation. Id. at 813-14. The general public hadunrestricted access to the road, and no statute or treaty autho-rized the tribe to govern the conduct of nonmembers on thehighway. Id. at 814.In County of Lewis v. Allen, 163 F.3d 509, 514 (9th Cir.1998), we looked to "the landowner's right to exclude" cer-tain nonmembers from the reservation, rather than land own-ership per se, as the source of tribal power. Central to thatcase is a law enforcement agreement between the Nez PerceTribe and the State of Idaho, that granted jurisdiction to thestate to enforce misdemeanor laws. Acting under the authorityof the agreement, a deputy county sheriff arrested a tribalmember, Allen, on the reservation for disturbing the peacewithin the reservation. Allen brought suit in tribal courtagainst the county and its law enforcement officers for tortsarising out of the arrest. Allen's residence was on fee land notowned by the tribe or the federal government, but the recorddoes not reflect whether the fee was owned by an Indian ornon-Indian. Id. at 512 n.1. The court stated that, "[f]rom thestandpoint of the exercise of adjudicative authority over non-member county law enforcement officers, it does not matterhow the land was owned because the consent to criminaljurisdiction was tantamount to alienation of the land to non-Indians for th[e] limited purpose [of patrolling the reservation,investigating minor crimes and making arrests]. " Id. at 514.We saw the Agreement as "a significant alienation of tribalsovereignty and control." Id. Our analogizing to Strate wasexplicit: "Like the tribes in Strate, which consented to andreceived payment for a highway easement, the Nez PerceTribe ceded its `gatekeeping right,' by consenting to andreceiving the benefits of state law enforcement protection."Id. We found that the tribal court, having surrendered itsexclusive criminal jurisdiction over Indians for minor crimi-nal acts committed on the reservation, had surrendered itscivil jurisdiction over the conduct of county officials actingpursuant to the Agreement. Id.[1] Finally, in State of Montana v. King, No. 98-35002, _______F.3d _______, 1999 WL 694953 (9th Cir. Sept. 9, 1999), we heldthat an Indian tribe lacked authority to enforce its employ-ment ordinance against a state for work done on a state ownedright-of-way. Our decision in King is in line with the Straterule: tribes lack authority to regulate, and thus power to adju-dicate, activities on land alienated to non-Indians.[2] Unlike Montana, Strate , Wilson, County of Lewis, andKing, the incidents underlying the instant case occurred onIndian-owned, Indian-controlled land, over which the Triberetained its right to exclude non-members.7 In the absence offederal statutes limiting it, the Tribe has exclusive criminaljurisdiction in Indian country over minor crimes committedby Indians. See Ex parte Crow Dog,
109 U.S. 556
(1883).State officers have no jurisdiction over such crimes. Outsideof Indian country, the state has general criminal jurisdictionover all persons, including Indians, see, e.g., Hagen v. Utah,
510 U.S. 399
(1994). Within Indian country, however, thestate's jurisdiction is generally limited to those crimes that donot concern Indians or Indian interests. See id. Before a stateofficial can conduct a search and seizure on the reservation toinvestigate a state crime, a tribal search warrant must beissued by a judge of the tribal court. See Fallon Tribe Law &Order Code, Title 1 S 4-40-010, 4-40-030(a); see also UnitedStates v. Anderson, 857 F. Supp. 52 (D.S.D. 1994) (holdingthat a state officer lacks power to search the reservation resi-dence of an Indian parolee from state prison, even though theparolee consented to searches as a condition of parole).In this case, as part of his investigation into a suspectedviolation of a state game law, Warden Spencer filed an affida-vit of probable cause in the New River Township, County ofChurchill on August 30, 1990. The state court issued a war-rant that stated: YOU ARE HEREBY ORDERED, SUBJECT TO OBTAINING APPROVAL FROM THE FALLON TRIBAL COURT IN AND FOR THE FALLON PAIUTE-SHOSHONE TRIBES, to search the said premises . . . . This Court has no jurisdiction on the Fallon Paiute-Shoshone Indian Reservation and, before any search is conducted in furtherance hereof, an approval authorizing same must be obtained from the Fallon Tribal Court in and for the Fallon Paiute- Shoshone Tribes of the Fallon, Churchill County, Nevada.The same application and approval procedure was followedon June 12, 1991. On both occasions, Spencer was accompa-nied by a tribal police officer when he executed the warrantat Hicks' residence.[3] Unlike the Agreement in County of Lewis, the warrantin this case bestows no broad grant of authority upon the Stateof Nevada. The Tribe retained sovereignty over the land uponwhich the search and seizure took place. The land on whichHicks' residence stood was neither open to the public, norcontrolled or maintained by any entity other than the Tribe.When the tribal court agreed to grant the state warden'srequest for a warrant, it was exercising its "gatekeepingright." The tribal court was free to exclude state officialsengaged in law enforcement activities on the reservation. Thetribal court was the sole authority to which the state wardencould apply--and to which it in fact had to apply--for per-mission to execute a search warrant on the reservation.8 Fur-ther underscoring the exclusivity of tribal jurisdiction is thefact that the state warden was accompanied by a tribal officerupon the execution of each warrant.[4] Each authorization of the execution of the warrantsmarked an isolated incident wherein the tribal court granteda state official permission to enter the reservation as part ofa state investigation into an alleged violation of state law.There was no cession of criminal law jurisdiction, or indeedof any law enforcement jurisdiction at all. Unlike in Countyof Lewis, no benefit was conferred on the Tribe. Law enforce-ment on the reservation remained in the hands of the Tribe.The tribal court merely granted a state official's request tocome onto the reservation for a limited, clearly delineatedpurpose under circumstances where all inherent jurisdictionalauthority lay with the Tribe. We emphasize that the tribalcourt modified the original search warrant by restricting theauthorized search to "exterior premises only and to vehiclesthereon," demonstrating that the Tribe retained authority todirect the state officers' activities on tribal land.[5] This case then, involves no "significant alienation oftribal sovereignty and control" over law enforcement or overIndian-owned land within the reservation. See County ofLewis, 163 F.3d at 514. Cf. Strate,
520 U.S. at 442
(holdingthat the grant of the right-of-way to the state, which precludedthe tribe from exercising proprietary rights of exclusion, ren-dered the highway the equivalent of non-Indian fee land);Montana,
450 U.S. 544
(holding that an Indian tribe had noauthority to regulate hunting and fishing by non-Indians onnon-Indian owned fee land within the reservation); County ofLewis, 163 F.3d at 514 ("[T]he consent[by the tribe] to crimi-nal jurisdiction [of the state] was tantamount to alienation ofthe land to non-Indians . . . ."); Wilson, 127 F.3d at 813-15(same as Strate, where plaintiff was a tribal member). Instead,it concerns the effects of state officers' actions that not onlyexceeded the permission given by the Tribe in the search war-rants, but damaged property that should not have been seizedat all.[6] We find that the Montana presumption against tribalcourt jurisdiction does not apply in this case. Instead, in linewith Strate and County of Lewis, we look to the tribe's powerto exclude state officers from the land at issue. The Tribe'sunfettered power to exclude state officers from its landimplies its authority to regulate the behavior of non-memberson that land. See Strate,
520 U.S. at 456
(land treated as non-Indian fee land because Tribe "cannot assert a landowner'sright to occupy and exclude"); South Dakota v. Bourland, 508U.S. 679, 692 (1993) ("when Congress has broadly opened upsuch land to non-Indians [i.e., abrogated the tribe's power toexclude], the effect . . . is the destruction of pre-existingIndian rights to regulatory control") (emphasis added);Brendale v. Confederated Tribes,
492 U.S. 408
, 433-448(1989) (opinion of Stevens and O'Connor, JJ.) (tribe can zonenon-member fee land as long as tribe retains power to controlaccess to the land);9 Confederated Salish and Kootenai Tribesv. Namen, 665 F.2d 951 (9th Cir. 1982) (tribe has power toregulate structures built by non-members which extend overthe lake bed held in trust for tribe).10 [7] Once a tribe's authority to regulate activities on its landhas been demonstrated, civil jurisdiction regarding thoseactivities follows. The Supreme Court made clear in Stratethat "where the tribes possess authority to regulate the activi-ties of nonmembers, `[c]ivil jurisdiction over [disputes arisingout of] such activities presumptively lies in the tribalcourts.' " Strate,
520 U.S. at 453
. Any sovereign, even a lim-ited sovereign, must have the power to adjudicate whatever ithas the power to legislate. A sovereign who must depend onthe courts of another sovereign to adjudicate violations of itsown rules is little more than a landowner.In this case, the Tribe clearly had the power to exclude stateofficers from its land and to regulate the behavior of stateofficials present on its land pursuant to limited tribal permis-sion. There was no general cession of jurisdiction by theTribe; instead there was a controlled, limited permission forstate officials to come onto tribal land and comport them-selves within to the parameters of that permission. Disputesregarding the officials' behavior under this permission arewithin the jurisdiction of the Tribe.[8] Because the tribal court has already ruled on the issueof tribal court jurisdiction, Nevada exhausted its tribal reme-dies on that issue. The question of tribal court jurisdiction istherefore ripe for federal review. We conclude that the tribalcourt has subject matter jurisdiction over the claims broughtby Hicks against the state officials.11 B.[9] Nevada suggests that the actions of the state officials inthis case were undertaken as part of their official duties andthat therefore the officials should be shielded from liabilityunder a derivative of the doctrine of sovereign immunity. Thisargument concerns an affirmative defense and is not properlybefore the court, since the state did not exhaust its remediesregarding the sovereign immunity defense before the tribalcourt. While the tribal court did find that "it is not preventedby doctrines of sovereign or qualified immunity from lawfullyexerting personal jurisdiction over specially appearing Statedefendants," this finding was clearly restricted to the issue ofpersonal jurisdiction and did not include any findings regard-ing the affirmative defense of sovereign immunity. In addi-tion, the tribal court's ruling came before Hicks voluntarilydismissed the State of Nevada and all state defendants namedin their official capacities.12 Therefore, the issue of sovereignimmunity as an affirmative defense for state officials namedindividually in this action has not been considered on the mer-its by the tribal court. We therefore do not reach the issue.Nevada also argues that the district court erred in holdingthat it was precluded by considerations of comity from rulingon the state officials' claims of qualified immunity. Nevadacontends that the state officials sued by Hicks were entitled tosummary judgment on the issue of tribal court jurisdictionbecause Hicks failed to overcome their claims of qualifiedimmunity from suit. However, Nevada does not argue that itsclaim fits into any of the exceptions to the exhaustion require-ment. Suggesting that no case has yet determined the exis-tence or nature of the qualified immunity available to stateofficials in tribal court, Nevada instead invites this court todefine the applicable test. We decline to do so.[10] The Supreme Court in Strate reaffirmed its earlierdecisions requiring, as a matter of comity and with very nar-row exceptions,13 the exhaustion of tribal remedies before thefederal courts rule on the jurisdiction of the tribal courts. SeeStrate,
520 U.S. 438
, at 448-454 (discussing Iowa Mutual Ins.Co. v. LaPlante,
480 U.S. 9
(1987), and National FarmersUnion Ins. Cos. v. Crow Tribe of Indians,
471 U.S. 845
(1985)); see also Burlington Northern R. Co. v. Crow TribalCouncil, 940 F.2d 1239, 1245 (9th Cir. 1991) (emphasizingthe exhaustion requirement).[11] The district court correctly applied this exhaustionrequirement to the issue of qualified immunity. See, e.g.,Stock West Corp. v. Taylor, 964 F.2d 912, 920 (9th Cir. 1992)(en banc) (holding that the district court abused its discretionin addressing a qualified immunity defense on the merits, andexplaining that "[b]ecause a determination of this issue willrequire a careful study of the application of tribal laws, andtribal court decisions, the district court should have stayed itshand until after the Colville Tribal Courts have the opportu-nity to resolve the question").As a preliminary matter, we note that Nevada makes thesame mistake with regard to qualified immunity that it madewith sovereign immunity, by contending that it is an issue thatimpacts the subject matter jurisdiction of the tribal courts. Thelaw is clear that qualified immunity, rather than serving as ajurisdictional bar, "is an affirmative defense that must bepleaded by a defendant official." Harlow v. Fitzgerald, 457U.S. 800, 815 (1982); see also Blatchford v. Native Village ofNoatak,
501 U.S. 775
, 786 n.4 (1991) (noting qualified immu-nity is an affirmative defense that is "wholly distinct" fromissues of jurisdiction). We reject Nevada's contention to thecontrary.[12] Alternatively, Nevada argues that the issue of qualifiedimmunity was in fact exhausted before the tribal court. To thisend, Nevada quotes the ruling by the Inter-Tribal AppellateCourt affirming the decision of the tribal judge that "the doc-trine of . . . qualified immunity does not prevent the FallonTribal Court from exerting personal jurisdiction over the StateDefendants," and argues that this constitutes a decision on themerits and thus satisfies the exhaustion requirement. How-ever, this argument likewise disregards the fact that qualifiedimmunity is an affirmative defense and not a jurisdictionalbar. A holding by the tribal court that it has jurisdiction can-not be construed as a ruling on the merits. The district courtdid not err in finding that the exhaustion requirement had notbeen satisfied.Nevada also argues that, even if the issue of qualifiedimmunity was not exhausted in the tribal courts, it should betreated as having been since Hicks had ample opportunity torespond to the claims of qualified immunity. Nevada suggeststhat if the tribal court record is bereft of supportive evidencefor Hicks' effort to overcome the state officials' individualimmunity, it is his own fault.However, we have never required a party to anticipateanother party's qualified immunity defense before the ques-tion of subject matter jurisdiction had been decided. See, e.g.,McDonald v. United States, 102 F.3d 1009, 1011 (9th Cir.1996) (holding that "there is `no basis for imposing on theplaintiff an obligation to anticipate such a defense' " of quali-fied immunity) (quoting Gomez v. Toledo,
446 U.S. 635
, 640(1980)). The argument by Nevada here again conflates theaffirmative defense of qualified immunity with issues relatingto the tribal courts' subject matter jurisdiction. The districtcourt did not err in declining to reach the merits of the quali-fied immunity issue.Lastly, Nevada argues that Hicks failed to state a claimagainst William Molini, Director of the Nevada Departmentof Wildlife, because Molini was not alleged to have partici-pated personally in the acts of the game wardens in obtainingand executing the search warrants and seizing Hicks' prop-erty.The district court noted that "[t]he voluntary dismissal ofthe official capacity claims by the tribal court may well havemade personal and subject matter jurisdiction over Molini . . .inappropriate." However, since "[t]his issue was never beforethe tribal court because when the motion to quash rulingswere made, claims against the state defendants in their officialcapacities had not yet been voluntarily dismissed, " the districtcourt declined to rule on whether a claim had been statedagainst Molini, "leaving this unexhausted issue to the tribalcourt." The analysis of the exhaustion requirement set outabove applies with equal force here. The district court did noterr.III.The tribal common law torts and federal and tribal civilrights violations underlying this case occurred on Indian-owned land, the allotment on the Fallon Paiute-Shoshone Res-ervation held in trust by the federal government for FloydHicks. The tribal court has civil jurisdiction in this case basedon the Tribe's right to adjudicate disputes arising out ofactions within tribal regulatory authority that take place onIndian land. The district court did not err in holding that thetribal court has jurisdiction.Nevada's claims of sovereign and qualified immunity onbehalf of the state officials and of Hicks' failure to state aclaim against William Molini have not been exhausted intribal court. Although exhaustion is not a jurisdictional pre-requisite, it is required as a matter of comity. Strate, 520 U.S.at 453. The district court did not err in declining to reach themerits of those claims.AFFIRMED.
_____________________________RYMER, Circuit Judge, dissenting:I part company on subject matter jurisdiction, because Iboard the train from a different station. As I see it, we haveto start with Yellowstone County v. Pease, 96 F.3d 1169 (9thCir. 1996), which applies the framework established inMontana v. United States,
450 U.S. 544
(1981), to determinewhether there is tribal jurisdiction over civil disputes involv-ing an Indian tribe and non-Indians. Under Montana, the Fal-lon Tribal Court lacks subject matter jurisdiction over Hicks'scivil actions because in Pease we rejected the proposition thatMontana is limited to cases involving fee lands owned bynon-Indians. As there is no consensual relationship betweenthe Tribe and Nevada law enforcement officials, and subject-ing them to suit in tribal court is not necessary to protect thetribes or their members, neither of the Montana exceptions tothis rule is applicable. As the district court held otherwise, Iwould reverse.Along with Strate v. A-1 Contractors,
520 U.S. 438
(1997),Montana is the leading opinion discussing tribal sovereigntyover non-members of a tribe. In Montana, the Court notedthat Indian tribes have lost many of the attributes of sover-eignty and retain only limited powers, such as the power topunish tribal offenders, to determine tribal membership, toregulate domestic relations among members, and to prescriberules of inheritance for members.
450 U.S. at 564
. As theCourt explained, the "exercise of tribal power beyond what isnecessary to protect tribal self-government or to control inter-nal relations is inconsistent with the dependent status of thetribes, and so cannot survive without express congressionaldelegation," unless the non-members have entered"consensual relationships" with the tribe or its members, orthe conduct of the non-Indians on fee land "threatens or hassome direct effect on the political integrity, the economicsecurity, or the health and welfare of the tribe. " Id. at 564-66.Pease rejects the argument Hicks makes here, that Montanaonly imposes restrictions on a tribe's jurisdiction over feelands owned by or aligned with non-Indians. In Pease we heldthat a tribal court lacked jurisdiction to entertain a civil actionbrought by a tribe member against Yellowstone County seek-ing to enjoin the County's imposition of state property taxeson his (Indian-owned) reservation property. 96 F.3d at 1173-76. Pease contended "that Montana does not apply to theCounty's action because Montana only imposed restriction ona tribe's jurisdiction over fee land owned by non-Indians." Id.at 1174. However, we were unpersuaded "because the issuepresented here is whether the tribal court may assert jurisdic-tion over a non-Indian party (the County), and this court hascalled Montana `the leading case on tribal civil jurisdictionover non-Indians.' " Id. (quoting FMC v. Shosone-BannockTribes, 905 F.2d 1311, 1314 (9th Cir. 1990)). ApplyingMontana and finding neither exception triggered, we upheldsummary judgment for the County. As Pease is the law of thiscircuit, we are bound by its directive to apply Montana todecide "whether the tribal court may assert jurisdiction overa non-Indian party . . . ." Id. at 1174. See also William C.Canby, Jr., American Indian Law 193 (3d ed. 1998) ("TheEighth Circuit, in the decision that the Supreme Courtreviewed in Strate, and the Ninth Circuit have both stated thatthe tribe's sovereign powers simply do not permit exercise ofjurisdiction over nonmembers unless tribal interests areaffected, so as to bring the exercise within one of the twoMontana exceptions." (citing A-1 Contractors v. Strate, 76F.3d 930, 939 (8th Cir. 1996) (en banc) and Pease, 96 F.3dat 1175-76)).Strate further bolsters this view. Strate called Montana "thepathmarking case concerning tribal civil authority overnonmembers," and reiterated that Montana "establishes that,absent express authorization by federal statute or treaty, tribaljurisdiction over the conduct of nonmembers exists only inlimited circumstances."
520 U.S. at 445
. Although Strate'sholding that a tribal court lacks jurisdiction over a tort actionagainst a non-member who had an accident with a tribe mem-ber on a state right-of-way running through a reservationappears to turn on the fact that the accident there occurred onthe state's easement (thus not on Indian land, but on land"aligned" with non-Indians), the Court unambiguously makesMontana the relevant law. Finally, even if Strate may be con-strued to signal that Montana does not apply to conduct bynon-Indians on Indian land, the Court did not expressly say soand until it does, we must continue to follow Pease and applyMontana.County of Lewis v. Allen, 163 F.3d 509 (9th Cir. 1998) (enbanc), also supports the conclusion that there is no tribal civiljurisdiction in this case. In Allen, we held that the Nez Percetribe lacked civil jurisdiction over a member'sS 1983 action(very similar to Hicks's action here) against Lewis County,the sheriff and a deputy sheriff because the tribe ceded itsright "to exclude state officials engaged in law enforcementactivities on the reservation." Id. at 514. The Nez Perce hadentered into an agreement with Lewis County giving its offi-cers the authority to enter the reservation, investigate minorcrimes and make arrests. See id. Applying Strate andMontana, we concluded that "it does not matter how the landwas owned because the [tribe's] consent to criminal jurisdic-tion was tantamount to alienation of the land to non-Indiansfor this limited purpose." Id. We then determined that neitherMontana exception properly applied to extend tribal jurisdic-tion over the case. See id. at 515-16.In Hicks's action, Spencer, Ellington and Fitzmorris hadobtained Fallon Tribal Court permission to execute the searchwarrant of Hicks's residence (Spencer receiving permissiontwice), and thus they had a right to be on the reservation thatwas no less absolute than Deputy Myers's right in Allen andthe non-member defendants' in Strate. The fact that the FallonPauite-Shoshone Tribe granted permission to Nevada lawenforcement personnel to come onto the reservation on acase-by-case basis instead of in a blanket agreement does notmaterially change the analysis. Just as the Nez Perce formallyconsented to Deputy Myers's presence on their reservationthrough a prior agreement establishing concurrent criminaljurisdiction within the reservation, see Allen , 163 F.3d at 514,the Fallon Pauite-Shoshone formally consented to the pres-ence of Spencer, Ellington and Fitzmorris on their reservationthrough the Fallon Tribal Court's express approval of theirsearch warrants.So, the Fallon Tribal Court's consent to execution of theNevada search warrants "aligned" Hicks's property, albeittemporarily, with the state of Nevada. The Tribe had surren-dered its right to exclude Spencer, Ellington and Fitzmorris(at least for the time being), giving them the unqualified rightto be on Hicks's property. This case is thus indistinguishablefrom Allen in all material respects. Therefore, I would applyMontana and Allen and hold that Spencer, Ellington and Fitz-morris's conduct did not imperil the tribe's power to controlits internal affairs, and no applicable exception exists. Spenceronly sought to execute the search warrants after obtaining thetribe's consent and assistance.Accordingly, I would reverse and hold that the tribal courtlacks subject matter jurisdiction to entertain Hicks's civilrights actions against the Nevada officials.1
___________________________FOOTNOTES 1 The district court determined that "the parties have proceeded as if thefederal civil rights claim alleged is a S 1983 claim for a fourth amendmentviolation," and assumed for the purposes of the motions before it that aS 1983 claim was alleged. The district court also assumed that the tribalcivil rights claims were alleged under ICRA.2 The Tribe waived the sovereign immunity of the Fallon Tribal Courtand of the tribal judge, Judge Van Walraven, for the limited purpose ofdefending against Nevada's claims in federal court. Judge Van Walravenissued orders staying each of Hicks' actions pending final resolution of theissue of tribal jurisdiction in federal court.3 Nevada asserts before this court that it does not appeal this issue.4 Montana v. United States involved tribal regulation of hunting andfishing by non-Indians in a river running through the reservation. 450 U.S.at 547. As a general matter, the Court stated that "the Tribe may prohibitnonmembers from hunting and fishing on land belonging to the Tribe orheld by the United States in trust for the Tribe. " Id. at 557. But, upon find-ing that the title to the river bed had passed to the State of Montana, theSupreme Court held that the tribal court lacked jurisdiction. Id. 566-67.In so ruling, the Court articulated a "general proposition" that, on non-Indian owned fee lands, "the inherent sovereign powers of an Indian tribedo not extend to the activities of nonmembers of the tribe," with twoexceptions: 1) "A tribe may regulate, through taxation, licensing, or othermeans, the activities of nonmembers who enter consensual relationshipswith the tribe or its members, through commercial dealings, contracts,leases or other arrangements"; and 2) "A tribe may also retain inherentpower to exercise civil authority over the conduct of non-Indians on feelands within its reservation when that conduct threatens or has some directeffect on the political integrity, the economic security, or the health andwelfare of the tribe." Id. at 565-66. Although Montana involved only tribalregulation, Strate v. A-1 Contractors,
520 U.S. 438
(1997) extendedMontana's principles to tribal court jurisdiction as well. Examining claimsthat arose from an accident on a stretch of highway across tribal reserva-tion lands, the court stressed the status of that land, which was maintainedby the State of North Dakota under a federally-granted right-of-way. Thefederal grant meant that the land was "equivalent, for nonmember gover-nance purposes, to alienated, non-Indian land." Id., at 454. Because of thisequivalence to non-Indian owned land, the Montana rule applied, and thetribe lacked civil authority over the claims.5 The first exception, the Court explained, did not apply, despite the factthat A-1 Contractors had a "consensual relationship" with the Tribethrough subcontract on the reservation, because the driver of the car wasnot a party to the subcontract and unaffiliated with the Tribe. Id. at 457.The Court also found the second exception inapplicable, stating that"[n]either regulatory nor adjudicatory authority over the state highwayaccident at issue is needed to preserve `the right of reservation Indians tomake their own laws and be ruled by them.' " Id. at 459 (quoting Williamsv. Lee,
358 U.S. 217, 220
(1959)). As a result, the Court held that the tribalcourt lacked jurisdiction to hear the case. Id .6 In her dissent, Judge Rymer relies on Judge Canby's discussion ofYellowstone County v. Pease, 96 F.3d 1169 (9th Cir. 1996) (holding thattribal court lacked jurisdiction over challenge to county taxation of feelands within reservation) for the proposition that unless one of theMontana exceptions apply, tribal courts do not have jurisdiction over non-members. See dissent at 13465-66. Judge Canby's discussion, however,emphasizes the fact that Yellowstone County was decided before theSupreme Court's decision in Strate, and that Pease involved claimsagainst nonmembers that arose outside the reservation. See, e.g., WILLIAMC. CANBY, JR., AMERICAN INDIAN LAW 193-195 (1998). Pease, therefor e, isinapposite here.7 It is undisputed that Hicks' residence lies within the Reservation on anallotment held in trust for him by the federal government. Allotments areformer tribally held lands that were divided by order of Congress in 1887into small farm-sized tracts to be held by individuals. See Canby, at 270(1988). For jurisdictional purposes, allotments are considered "Indiancountry." See 18 U.S.C. S 1151; see also Oklahoma Tax Comm'n v. Sacand Fox Nation,
508 U.S. 114, 123
(1993) (holding that trust allotmentsare "Indian country" and the equivalent of tribal land for jurisdictionalpurposes); DeCoteau v. District County Court ,
420 U.S. 425
, 427 n.2(1975) ("While S 1151 is concerned, on its face, only with criminal juris-diction, the Court has recognized that it generally applies as well to ques-tions of civil jurisdiction.").8 In fact, the tribal court amended the state court's warrant of August 30,1990, and restricted its scope "to exterior premises only and to vehiclesthereon . . . ."9 Though all of the land at issue in Brendale was non-Indian fee land,some of the land was within the "closed" portion of the reservation towhich the tribe would limit access. Three justices would have found thetribe had inherent authority to zone all reservation land. Four justiceswould have found no authority under Montana to zone non-Indian fee landwhether or not the tribe controlled access to the land. Justices Stevens andO'Connor, the deciding votes, held the zoning power of the tribe dependson its ability to control access to the land.10 The Supreme Court denied certiorari in Namen over the dissent of Jus-tices Rehnquist and White, who hinted that they believed the tribes had noregulatory authority over non-members even when acting on Indian land.See
459 U.S. 977, 978
-79 (1982) (Rehnquist, C.J. and White, J., dissentingfrom denial of certiorari).11 We note that attempting to enforce the state's criminal laws against atribal member on the Reservation directly implicates the sovereignty of theTribe. See Arizona ex rel. Merrill v. Turtle, 413 F.2d 683 (9th Cir. 1969),cert. denied,
396 U.S. 1003
(1970) (holding that the arrest of a NavajoIndian on the reservation for extradition pursuant to Arizona law toanother state "would clearly interfere with rights essential to the Navajo'sself-government") (citing Williams v. Lee,
358 U.S. 217, 220
(1959)); seealso Strate v. A-1 Contractors,
520 U.S. at 459
(1997) (recognizing anexception to the Montana rule "to preserve `the right of reservation Indi-ans to make their own laws and be ruled by them' " (quoting Williams,
358 U.S. at 220
)).12 The tribal court's ruling cited here was issued on May 5, 1993. Thetribal court granted the plaintiff's motion to dismiss the State of Nevadaand all state defendants named in their official capacity on October 10,1995.13 For example, the Court explained that "[w]e do not suggest thatexhaustion would be required where an assertion of tribal jurisdiction `ismotivated by a desire to harass or is conducted in bad faith' or where theaction is patently violative of express jurisdictional prohibitions, or whereexhaustion would be futile because of the lack of opportunity to challengethe court's jurisdiction." National Farmers Union Ins. Cos. v. Crow Tribeof Indians,
471 U.S. 845
, 856 n.21 (1985). Most recently, the Court foundthat the "unusual preemption provision" of the Price Anderson Act whichexpressed Congress' "unmistakable preference for a federal forum, at thebehest of a defending party," made tribal court exhaustion of the questionof tribal court jurisdiction inappropriate. El Paso, 119 S.Ct. 1430, 1437(1999).1 For this reason I do not reach the immunity issues.