This is the second of our two-part analysis on the U.S. Supreme Court’s recent McGirt decision, and how it may affect those within the oil, gas and energy industry. In Part 1, we discussed potential implications on private property rights.
Prior to the Supreme Court’s recent decision in McGirt v. Oklahoma, it is probably safe to say that for over one hundred years almost nobody—including the Creek Tribe itself—had genuinely entertained the notion that the Creek Reservation remained in existence. First established through a series of treaties dating back to the 1830s, by the turn of the twentieth century the Creek Reservation, like many other reservations throughout the country, became subject to certain congressional allotment acts, essentially requiring the tribe to parcel out all the land within the boundaries of its reservation to individual tribal members. Over the years, with the easing and removal of restrictions regarding an allottee’s right to convey, the vast majority of the land that was originally owned by tribal members was legally transferred to non-Indians. Thus, the picture that emerged was one of a reservation whose land, from the very beginning, was owned by the Creek Tribe itself in a kind of communal arrangement, but then suddenly, as a result of allotment, the land became privately held by individual members of the Creek Tribe. As the years passed, the great majority of this privately held land was sold or otherwise transferred to persons and entities that had absolutely no tribal affiliation. Nobody, however, even paused to consider whether this private land somehow existed within the confines of an enduring Creek Reservation. This is because everyone, it seems, simply assumed that the Creek Reservation could not have survived allotment, since allotment ushered in a new era of private, as opposed to communal or tribal, ownership of the land.
This assumption was shattered in McGirt, where the United States Supreme Court held that, notwithstanding people’s expectations or presumptions, the Creek Reservation still exists to this day. This case involved the Major Crimes Act, a federal statute providing that Indians who commit certain serious crimes “within Indian country” must be prosecuted in federal court instead of state court. Since the term “Indian country” is specifically defined to include “all land within the limits of any Indian reservation,” the law makes the location of the crime—that is, whether or not the crime was committed on an Indian reservation—of vital importance.
The plaintiff in McGirt, Jimcy McGirt, an enrolled Seminole Indian, was charged with molesting, raping, and forcibly sodomizing his wife’s granddaughter, who at the time was four years old. The State of Oklahoma prosecuted him, and in 1997 he was convicted and sentenced to prison for a term of 1,000 years plus life. Approximately twenty-three years later, when his case reached the Supreme Court in the form of postconviction relief, McGirt was arguing that, pursuant to the Major Crimes Act, his prosecution and conviction in an Oklahoma state court was improper, for he was required to be tried in a federal court. Because McGirt had committed his crimes on land that was unquestionably within the historical boundaries of the Creek Reservation, the question that the Supreme Court was forced to answer was whether the reservation actually still existed, even though nobody had really treated it as still existing. In answering this question, the Court explained that an Indian reservation may be disestablished only through a congressional act (or statute) that clearly expresses an intent to effect the disestablishment. Undoubtedly surprising to many, the Court found that the allotment acts pertaining to the Creek Tribe did not sufficiently express an intent to disestablish the reservation. These allotment acts, the Court explained, may have resulted in the private ownership of land within the Creek Reservation, but private land ownership within a reservation, even if the owners are non-Indians, does not automatically result in disestablishment. “Congress,” said the Court, “may have passed allotment laws to create the conditions for disestablishment. But to equate allotment with disestablishment would confuse the first step of a march with arrival at its destination.” The Court eventually found that there has never been a congressional statute of sufficient clarity to disestablish the Creek Reservation, meaning that the reservation has necessarily been in existence from its foundation up to the present day. Accordingly, since McGirt, an enrolled Indian, committed his crimes on land within the existing Creek Reservation, he was required to be prosecuted in federal court. His state conviction, therefore, was overturned, and now the federal authorities must decide if they will re-prosecute him for his crimes.
Thus, the principal issue faced by the McGirt Court was whether the Creek Reservation had ever been disestablished. By finding that it had not, the Court’s ruling means that now, as a matter of law, the Creek Reservation must be considered not only as still existing, but as having never ceased to exist from the time of its initial formation. Its present existence, however, is probably not how most people usually envisage Indian reservations. The boundaries of the reservation remain, but the vast majority of the land is now owned, not by the Creek Tribe or by the tribal members, but instead by private individuals and entities that are non-Indians. This has come about, ultimately, as a consequence of the allotment acts, and since the allotment acts were perfectly legal congressional statutes, the private, non-Indian ownership of this enormous amount of land within the Creek Reservation is unassailable.
But even if the private ownership of the land within the Creek Reservation cannot be challenged, there are nevertheless certain important questions that arise. Perhaps first and foremost among these relates to the proper jurisdiction of the Creek Tribe in regulating conduct and economic relations within the Creek Reservation, especially with respect to parties who are not members of the tribe. For example, now that the Creek Reservation has been found to exist, can the tribal government pass its own laws regulating oil and gas exploration within the reservation’s boundaries? Similarly, can the tribal government impose its own tax on mineral production that occurs on land within the reservation? Questions such as these, which relate to the proper reach of tribal jurisdiction over the Creek Reservation, naturally raise corollary questions regarding the appropriate authority of the State over that same land. For example, since the Creek Reservation has been in continuous existence, does this mean that the oil and gas regulations adopted by the State of Oklahoma have no force and effect within the reservation? Are these state regulations, and all other such laws, now rendered null and void insofar as they attempt to regulate conduct on the reservation?
Because it was not necessary to the decision, the McGirt Court did not address questions, like the ones posed above, about how regulatory and jurisdictional issues should be resolved now that the continuing existence of the Creek Reservation has been established. It is the purpose of this article to discuss the applicable law in this area, with the view of providing some insight into how these issues will be analyzed in the future.
The situation presented here is one where an established Indian reservation remains in existence, but within the reservation itself lies certain land (in the present situation, a vast amount of land) that is privately owned by persons and entities that are both non-Indians and nonmembers of the relevant tribe. As it turns out, there have been many cases decided by the United States Supreme Court that specifically address the authority of a tribe to regulate activities on land that falls within the boundaries of its reservation but that is privately owned by nonmembers of the tribe. The seminal case in this area is Montana v. U.S., which was decided by the Supreme Court in 1981. Described relatively recently as “the most exhaustively reasoned of [the Supreme Court’s] modern cases addressing” tribal jurisdiction over nonmembers, it is now beyond doubt that the Montana decision sets forth the controlling legal framework for assessing a tribe’s potential regulatory power over non-Indian land within the tribe’s own reservation.
Montana involved the Crow Tribe, an Indian tribe with an existing reservation in what is now the State of Montana. Created by an 1868 treaty with the United States, the Crow Reservation was established approximately 20 years before Montana officially entered the Union as a state. After the reservation was created, however, a series of congressional allotment acts resulted in the private ownership of a significant portion of the land within the reservation. When the case reached the Supreme Court in 1981, approximately 69% of the reservation’s land was owned by the United States government in trust either for the Tribe itself or for individual tribal members. On the other hand, about 28% of the land was owned in “fee simple” by non-Indians. The term “fee simple,” often shortened merely to “fee” or expanded to “fee simple absolute,” is a legal term that simply denotes that the owner’s title to the land is free from limitations or conditions. It is by far how most people own their land.
Thus, twenty-eight percent of the land within the Crow Reservation was owned outright (that is, “in fee simple”) by non-Indians, though the Crow Reservation still embraced these lands. Beginning in the 1950s, the Crow Tribal Council began passing various resolutions regarding hunting and fishing within the reservation, and one of those resolutions absolutely prohibited the on-reservation hunting or fishing by any person who was not a member of the Crow Tribe. In effect, therefore, the Crow Tribe was attempting to prohibit hunting and fishing by any nonmember of the tribe, even if these activities took place on a portion of the approximately 28% of the reservation that was owned in fee by a non-Indian. The Montana Court was called upon to determine if this attempted exercise of tribal regulatory authority was permissible under the law.
In addressing this issue, the Court considered two different possible “sources” for the Tribe’s authority to regulate conduct on non-Indian fee land within the reservation. The first possible source was specific congressional acts, in the form of treaties or statutes, that might explicitly confer upon the Tribe the power to regulate nonmember activities on fee land. On the other hand, the second possible source was “inherent Indian sovereignty,” a federally recognized doctrine which establishes that Indian tribes, as a consequence of their unique status within the United States, retain some essential attributes of a sovereign power.
Having established this basic analytical framework, the Court first considered whether the U.S. Congress had enacted some law explicitly authorizing the Crow Tribe to regulate hunting and fishing on non-Indian fee land within the reservation. In this regard, the Court looked at the original treaties with the Crow Tribe as well as a general federal statute relating to Indian land, eventually finding that neither of these congressional acts, nor any others that it had been made aware of, specifically permitted the Crow Tribe to regulate hunting and fishing on reservation land owned by non-Indians. Accordingly, the Court concluded that the Crow Tribe’s attempt to regulate hunting and fishing on non-Indian fee land within the reservation could not be upheld on the basis of an explicit congressional act. In other words, the first possible source of authority was lacking.
The Court turned next to “inherent Indian sovereignty,” the second—and final—possible source for the Crow Tribe’s regulatory authority over nonmember land within the reservation. To begin its analysis on this point, the Court first considered some of its controlling precedent regarding the inherent sovereignty of Indian tribes. This precedent, the Court explained, has established that “through their incorporation into the United States, as well as through specific treaties and statutes, the Indian tribes have lost many of the attributes of sovereignty.” According to the Court, therefore, the Indian tribes retain only some inherent sovereign authority, since much of the tribes’ original authority was necessarily stripped away—or divested—as a result of the tribes becoming a part of the United States. Still relying upon settled precedent, the Court went on to explain:
The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe . . . .
These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by virtue of a tribe’s dependent status.
Indian tribes, therefore, are dependent entities within the United States, and their dependent status means that, whereas they retain certain vestiges of sovereignty, these vestiges are severely circumscribed and usually do not extend to nonmembers of the tribe. Thus, as a general matter, Indian tribes retain “the power to punish tribal offenders,” as well as the “power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members.” The Court emphasized, however, that any “exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.”
Consequently, the Court found that “the general proposition [is] that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” However, despite this general proposition, the Court explained that there are nevertheless two distinct situations where an Indian tribe still retains the inherent authority to regulate the conduct of non-Indians on the tribe’s reservation, including conduct that is performed on fee land owned by non-Indians. According to the Court, these two situations (which are essentially exceptions to the general proposition that tribes have no authority over nonmembers) are as follows:
[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 commercial dealing, contracts, leases, or other arrangements.
[Second,] [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.
Thus, a tribe’s regulation of non-Indians on reservation land is conceivably permissible, based upon principles of inherent sovereignty and even in the absence of congressional authorization, if either (1) the non-Indian “enter[s] a consensual relationship with the tribe or its members,” or (2) the non-Indian’s conduct on his own fee land “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”
After describing the general proposition and the two exceptions, the Court then returned to the case at hand. The Court found that the first exception did not apply, since “[n]on-Indian hunters and fisherman on non-Indian fee land do not enter any agreements or dealings with the Crow Tribe so as to subject themselves to tribal civil jurisdiction.” Similarly, with respect to the second exception, the Court explained that “nothing in this case suggests that such non-Indian hunting and fishing so threaten the Tribe’s political or economic security to justify tribal regulation.” Having found that neither exception was present, the Court held that the Crow Tribe did not possess the authority to regulate hunting and fishing on non-Indian fee land within the Crow Reservation. Accordingly, the Crow Tribe’s tribal resolution that attempted to prohibit nonmember hunting and fishing on land owned by non-Indians was found to be an unlawful exercise of power, thereby rendering the resolution unenforceable insofar as the non-Indian land was concerned. As such, the power to regulate hunting and fishing on such land properly belonged to the State of Montana, not to the Crow Tribe.
The Montana Court, therefore, developed a test—a framework—for analyzing whether an Indian tribe can regulate conduct on land owned by nonmembers of the particular tribe, even if such land lies within the confines of the tribe’s existing reservation. This is a two-part test, where the second part actually contains two sub-parts. The test can be rendered as follows:
1. Is the tribal regulation of conduct on non-Indian fee land expressly authorized by a congressional treaty or statute?
2. If there is no such express congressional authorization, then is the tribal regulation justifiable pursuant to the principle of “inherent Indian sovereignty”? In this regard, there are only two possible sources for the justification, namely:
a. Did the non-Indian (nonmember) enter into some “consensual relationship with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements”?
b. Is the particular conduct on the non-Indian fee land such that the “conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe”?
As the Montana decision makes clear, if the tribal regulation at issue does not fall within any part of this test, then the regulation is unlawful and unenforceable, leaving the particular conduct to be regulated by the state within which the reservation is located (or, in proper circumstances, by the federal government). Furthermore, subsequent to Montana, the United States Supreme Court has consistently found that this test represents the controlling analysis for determining the lawfulness of a tribe’s attempted regulation of conduct on non-Indian fee land within the tribe’s reservation. Accordingly, it is the Montana test that will ultimately govern whether, and to what extent, the Creek Tribe may lawfully regulate conduct on the vast amount of non-Indian fee land that lies within the still-existing Creek Reservation.
A quick look at a few relevant Supreme Court cases subsequent to Montana will help further illustrate how the courts tackle these issues. One of the best cases in this area is Atkinson Trading Co., Inc. v. Shirley, decided by the Supreme Court in 2001. In 1916, a non-Indian purchased land from the United States government to be used as a trading post just south of the Navajo Reservation in the State of Arizona. About twenty years later, in 1934, the U.S. Congress enlarged the Navajo Reservation, extending it to the south so that the reservation’s boundaries embraced the land upon which the trading post was located. However, as the Court explained, the extension of the reservation “did nothing to alter the status of the property. It is, like millions of acres throughout the United States, non-Indian fee land within a tribal reservation.”
Although it started out as a small affair, over the years the trading post, fueled by tourist dollars, grew into a large business complex, which included, among other things, a hotel and a retail store. Beginning in 1992, the Navajo Nation enacted a hotel occupancy tax that levied an 8 percent tax upon all hotel rooms located within the Navajo Reservation, with the tax to be remitted to the Navajo Tax Commission. According to this tribal enactment, therefore, the owner of the trading post hotel was required to collect the tax from the guests and remit it to the tribal government, despite the fact that the hotel owner was a nonmember of the tribe and owned the land outright. The Court was tasked with determining whether this tax was lawful insofar as it applied to the owner of the trading post hotel.
At the beginning of its analysis, the Court made the following observation:
Tribal jurisdiction is limited: For powers not expressly conferred upon them by federal statute or treaty, Indian tribes must rely upon their retained or inherent sovereignty. In Montana, the most exhaustively reasoned of our modern cases addressing this latter authority, we observed that Indian tribe power over nonmembers on non-Indian fee land is sharply circumscribed.
The Court then found that the Montana test controlled the analysis. As to the first part of the test, the Court explained that “Congress has not authorized the Navajo Nation’s hotel occupancy tax through treaty or statute.” Accordingly, since the tax could not be upheld based upon express congressional authorization, it became necessary to consider the second part of the test, which asks whether the tribe’s regulatory authority can be justified pursuant to the principle of “inherent Indian sovereignty.” As set forth in Montana, this part of the test actually contains two exceptions to the general rule that “‘the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.’” Accordingly, the Court explained that “it is incumbent upon the Navajo Nation to establish the existence of one of Montana’s exceptions.”
The first Montana exception relates to “‘nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.’” The Navajo Nation argued that this exception was applicable since the hotel and its guests benefited from certain reservation services provided by the tribe, such as tribal police and fire departments that would respond to emergencies at the hotel. The Court summarily rejected this argument, stating that “[a]lthough we do not question the Navajo Nation’s ability to charge an appropriate fee for a particular service actually rendered, we think the generalized availability of tribal services patently insufficient to sustain the Tribe’s civil authority over nonmembers on non-Indian fee land.” After further observing that the “consensual relationship exception requires that the tax or regulation imposed by the Indian tribe have a nexus to the consensual relationship itself,” the Court declared that the tax at issue clearly did not have the requisite connection. The Court, therefore, found that the first Montana exception was absent.
The Court then moved to the second Montana exception, which permits tribal regulation “‘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.’” According to the Navajo Nation, this exception was present because (1) the hotel employed almost 100 Navajo Indians, (2) the hotel derived business from tourists who were travelling to visit the reservation, and (3) the hotel was surrounded by tribal land. The Court dismissed this argument as well, finding that, even though the trade store possessed “an overwhelming Indian character,” the operation of the hotel simply did not “threaten or [have] some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”
Having found that the hotel occupancy tax did not satisfy any part of the Montana test, the Court held that the tax could not be enforced against the trade store hotel. In reaching this holding, the Court once again emphasized the following general rule: “Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory, but their dependent status generally precludes extension of tribal civil authority beyond these limits.”
Another relevant case is Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, which involved non-Indian fee land located within the boundaries of the existing Yakima Reservation in the southeastern part of the State of Washington. The reservation was divided into two distinct areas, referred to as the “open area” and the “closed area.” The “closed area” consisted primarily of unadulterated forest land closed to the general public. Less than 4% of the land in the closed area was privately owned in fee, with the rest being owned by the U.S. government in trust for the Tribe. On the other hand, the “open area” was, as the name suggests, open to the general public, and about a full half of this land was privately owned in fee. Furthermore, the land in the open area was not unadulterated forest land, but was instead “primarily rangeland, agricultural land, and land used for residential and commercial development.”
The case dealt with two nonmembers of the Tribe who owned their land in fee. One of the owners, Philip Brendale, owned a 160-acre tract of land in the closed area. The other owner, Stanley Wilkinson, owned a 40-acre tract of land in the open area. Both parties wished to develop their lands in certain ways, but there was a problem. The Yakima Nation had enacted a zoning ordinance that prohibited the land development proposed by both Brendale and Wilkinson. However, the county that overlaid much of the reservation—Yakima County—had its own zoning ordinances, and these would have allowed the proposed developments. The case, therefore, presented the question of whether the regulatory zoning ordinances of the tribe or of the county should control the development of non-Indian fee land within the Yakima Reservation.
This case is somewhat unusual in that the decision is split between the holding regarding the development in the “open area” and the holding regarding the development in the “closed area.” In the end, a majority of six justices agreed that the tribal zoning ordinance could not apply to the development of non-Indian fee land in the “open area,” meaning that the county zoning ordinance prevailed. With respect to the “closed area,” however, a majority of five justices agreed that the tribal ordinance—not the county ordinance—represented the prevailing law. We will look at both parts of the decision in turn, beginning with the part regarding the open area.
In analyzing whether the Yakima Nation could properly zone non-Indian fee land within the open area, a plurality of the Court employed the Montana test. Finding that there was no congressional treaty or statute that “expressly delegated to the Yakima Nation the power to zone fee lands of nonmembers of the Tribe,” the Court then turned to the second part of the test and the two “exceptions” to the general rule that inherent Indian sovereignty does not extend to nonmembers of the tribe. With respect to the first exception, the Court found that it clearly did not apply, since a landowner cannot be said to have a “consensual relationship” with a tribe simply by virtue of owning land within the boundaries of the tribe’s reservation. Similarly, the Court also found that the second exception did not apply, given the fact that the lower court had specifically found that the county’s “exercise of zoning power over the Wilkinson property would have no direct effect on the Tribe and would not threaten the Tribe’s political integrity, economic security, or health and welfare.” Accordingly, since the tribal zoning ordinance at issue did not satisfy any part of the Montanatest, the Court held that the tribal ordinance was unenforceable with respect to the non-Indian fee land in the “open area.” It was therefore the county zoning ordinance that applied to development on this land.
The Court reached a different conclusion, however, with respect to the non-Indian fee land in the “closed area.” Justice Stevens delivered this portion of the opinion, and in so doing he found it of “critical importance” that the “closed area” of the reservation had only a nominal amount of fee land, with the vast majority of the land being unadulterated forest land maintained by the tribe itself “as a separate community.” According to Stevens, another and equally important factor was the fact that the Yakima Nation retained the authority to exclude nonmembers of the tribe from all land within the “closed area” except for the extremely small portion of the land owned in fee by nonmembers. “By maintaining the power to exclude nonmembers from entering all but a small portion of the closed area,” wrote Stevens, “the Tribe has preserved the power to define the essential character of that area.” Accordingly, this portion of the opinion concluded that the tribe’s zoning ordinance applied to the almost insignificant amount of non-Indian fee land within the “closed area,” for such tribal ordinances were necessary “to ensure that this area maintains its unadulterated character.” In this portion, therefore, the Court concluded that the tribal zoning ordinance was enforceable, thereby preventing Wilkinson from proceeding with the planned development of his non-Indian fee land in the “closed area.”
The second portion of the Brendale decision is therefore unusual in the sense that it did not exclusively rely upon the Montana test as the basis for its holding. Rather, it employed an altogether novel approach, taking into consideration whether the tribal regulation was necessary to maintain the “essential character of [the] area.” This portion of the case, however, has essentially been limited to its particular facts, and should apply (if at all) only in those rare situations where the non-Indian fee land is not only virtually insignificant, but also surrounded on all sides by reservation land that is maintained in a unadulterated state of nature. Indeed, the Supreme Court has on several occasions explained that, with the “one minor exception” of the Brendale decision, the Court has “never upheld under Montana the extension of tribal civil authority over nonmembers on non-Indian land.” In other words, Brendale represents the only Supreme Court case since Montana wherein it was found that an Indian tribe possessed the power to exert any form of regulatory power over conduct taking place on non-Indian fee land within a reservation.
To summarize. It was held in McGirt that the Creek Reservation remains in existence, despite the fact that very few people thought this possible, much less treated the reservation as still actually existing. However, as an ultimate result of the allotment acts, the vast majority of the land within the Creek Reservation is now owned, not by the Creek Tribe itself or by tribal members, but instead by private persons and entities that are non-Indians and nonmembers of the Creek Tribe. If the Creek Tribe attempts to exercise any regulatory authority (including taxation) over the non-Indian land, then the lawfulness of any such attempt will be determined in accordance with the test announced in Montana. This is a two-part test, with the second part consisting of two separate sub-parts. The first part asks if there is a congressional treaty or statute that expressly authorizes the tribe’s attempted regulation over the non-Indian land. If such a congressional act exists, then the regulation is permissible. On the other hand, if no such congressional act exists, then the second part of the test comes into play, which asks if the regulation is justifiable pursuant to the principle of “inherent Indian sovereignty.” The general rule is that “the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” There is, therefore, a strong presumption that an Indian tribe has no authority to claim regulatory jurisdiction over non-Indian land within its reservation. But Montana carves out two—and only two—exceptions to the general rule. The first is if the non-Indian enters into a “consensual relationship with the tribe or its members.” And the second exception is if the non-Indian’s conduct on his own land “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” If either of these is found to exist, then the attempted regulation is conceivably permissible. However, if there is neither a “consensual relationship” nor conduct that sufficiently threatens the integrity or welfare of the tribe, then the attempted regulation of non-Indian land is not justifiable under the principle of inherent sovereignty, which means that the attempted regulation is rendered unenforceable. Finally, the cases make clear that, in situations where the tribe has no regulatory power over the non-Indian land on the reservation, the State within which the reservation is located is free to enforce its own properly enacted regulatory laws.
As of the time of this writing—about a month and a half after McGirt was decided—the authors are unaware of any attempt by the Creek Tribe to enact regulations covering any portion of the vast amount of non-Indian land within the Creek Reservation.If such an attempt is made in the future, however, it is almost certain that the attempted regulation will be immediately challenged in the courts.Although each attempted regulation will be analyzed based upon the unique facts and circumstances of the case, it nevertheless appears clear that all attempted regulations of non-Indian land will face difficult, practically insurmountable obstacles.With respect to the first part of the Montana test, the Supreme Court has never found a congressional treaty or statute that permits the tribe to exercise regulatory control over non-Indian land on the tribe’s reservation.And with respect to the second part of the Montana test, there has only been one case, Brendale, that has permitted a tribe to regulate non-Indian land.As previously explained, however, Brendale is an outlier, a case involving a minuscule amount of non-Indian land surrounded by unadulterated forest that was maintained by the tribe and closed to the general public.That, of course, is far different from how the Creek Reservation exists today.
 140 S.Ct. 2452 (2020).
 18 U.S.C. § 1151.
 McGirt, 140 S.Ct. at 2465.
 450 U.S. 544 (1981).
 Atkinson Trading Co., Inc. v. Shirley, 532 U.S. 645, 649 (2001).
 Montana, 450 U.S. at 548. The remaining 3% of the reservation’s land was owned by the State of Montana (2%) and the United States (1%). Id.
 Id. at 548-49.
 Id. at 557-566.
 Id. at 563-64 (citing United States v. Wheeler, 98 S.Ct. 1079 (1978)).
 Id. at 564 (quoting Wheeler, 98 S.Ct. at 1087 (emphasis supplied by the Montana Court)).
 Id. at 564.
 Id. at 565 (emphasis added).
 Id. at 565-66 (citations omitted; space between clauses added for the sake of convenience).
 Id. at 566.
 See, e.g., Nevada v. Hicks, 533 U.S. 353, 358 (2001) (“Indian tribes’ regulatory authority over nonmembers is governed by the principles set forth in Montana . . . which we have called the pathmaking case on the subject” (internal quotations and citation omitted)); South Dakota v. Bourland, 508 U.S. 679, 695-96 (1993) (using the Montana test to analyze a tribe’s purported regulatory authority over non-Indian fee land); Strate v. A-1 Contractors, 520 U.S. 438, 453-57 (1997) (using the Montana test to analyze a tribe’s possible adjudicative jurisdiction regarding torts committed on non-Indian land within the reservation, stating that “[a]s to nonmembers . . . a tribe’s adjudicative jurisdiction does not exceed its legislative [i.e., regulatory] jurisdiction. . . . Subject to controlling provisions in treaties and statutes, and the two exceptions identified in Montana, the civil authority of Indian tribes and their courts with respect to non-Indian fee lands generally does not extend to the activities of nonmembers of the tribe.” (quotations and alteration omitted)); Atkinson Trading Co., Inc. v. Shirley, 532 U.S. 645 (2001) (employing the Montana test in determining whether a tribe could tax conduct on non-Indian fee land within the tribe’s reservation. The Court noted: “In Montana, the most exhaustively reasoned of our modern cases addressing [a tribe’s inherent sovereignty], we observed that Indian tribe power over nonmembers on non-Indian fee land is sharply circumscribed.”).
 532 U.S. 645 (2001).
 Id. at 648.
 Id. at 649-50.
 Id. at 654.
 Id. at 651 (quoting Montana, 450 U.S. at 565).
 Id. at 654.
 Id. at 651 (quoting Montana, 450 U.S. at 565).
 Id. at 655.
 Id. at 651 (quoting Montana, 450 U.S. at 565).
 Id. at 658 (internal quotations omitted).
 Id. at 659 (internal quotations and citation omitted).
 492 U.S. 408 (1989).
 Id. at 415-16.
 Id. at 428.
 Id. at 432.
 Id. at 441.
 Id. at 444.
 Nevada v. Hicks, 533 U.S. 353, 360 (2001). See also Plains Commerce Bank v. Long Family Land and Cattle Co., 554 U.S. 316, 333 (2008) (same); Atkinson Trading Co., Inc. v. Shirley, 532 U.S. 645, 658-59 (2001) (“Respondents extrapolate from [the second portion of Brendale] that Indian tribes enjoy broad authority over nonmembers wherever the acreage of non-Indian fee land is minuscule in relation to the surrounding tribal land. But we think it plain that the judgment in Brendale turned on both the closed nature of the non-Indian fee land and the fact that its development would place the entire area in jeopardy. Irrespective of the percentage of non-Indian fee land within a reservation, Montana’s second exception grants Indian tribes nothing beyond what is necessary to protect tribal self-government or to control internal relations.” (internal quotations, footnotes, and citations omitted)).
 Montana, 450 U.S. at 565 (emphasis added).
About the Authors:
Anthony Mann is a Senior Attorney at CharneyBrown, LLC. Mr. Mann focuses his practice on Oil & Gas, Mineral and Energy Law and Insurance Law, specializing in coverage opinions.