IN THE SKOKOMISH TRIBAL COURT OF APPEALS
SKOKOMISH INDIAN RESERVATION
Skokomish Indian Tribe, Plaintiff and Appellee,
Beverly Mosbarger, Defendant and Appellant.
No. I 12774 (June 26, 2006)
Skokomish Indian Tribe, Plaintiff and Appellee,
William L. Parsons, Defendant and Appellant.
No. I 11834 (June 26, 2006)
Before: Lisa Brodoff, Chief Justice; Robert Miller, Associate Justice; Richard Woodrow, Associate Justice.
Appearances: Brian H. Collins, Office of Tribal Attorney, for Appellee Skokomish Indian Tribe; Robert Johnson, for Beverly Mosbarger; Bruce Finlay, for William L. Parsons.
In this consolidated appeal, Defendants/Appellants Beverly Mosbarger (Mosbarger) and William L. Parsons (Parsons) contend that the Skokomish Tribal Government and Tribal Court lack jurisdiction to impose civil penalties on them for speeding on the Skokomish Indian Reservation. At a hearing on August 18, 2005, the Skokomish Trial Court found Mosbarger liable for speeding on Washington State Highway 106 in a school zone on the Reservation on May 25, 2005 and imposed a civil fine on her. At a hearing on February 17, 2005, the trial court found Parsons liable for speeding on U.S. Highway 101 on the Reservation on October 1, 2004 and imposed a civil fine on him. At a hearing on June 9, 2005, the trial court denied Parsons’ Motion to Reconsider for Lack of Jurisdiction and on June 16, 2005 the trial court filed the Order Denying Motion to Reconsider. Mosbarger and Parsons appealed those decisions.
For the reasons set forth below, and after fully considering the written and oral arguments of the parties and the relevant federal and tribal law, this Court affirms the August 18, 2005 Decision of the trial court imposing a civil penalty on Mosbarger for violating the motor vehicle speed limit in a school zone located on the Reservation.
We vacate, however, the trial court decision finding Parsons liable and we dismiss the Tribe’s suit against Parsons due to a lack of jurisdiction because the Tribe failed to establish the basic factual prerequisites necessary for this Court to determine whether the Tribe has civil jurisdiction in Parsons’ situation.
I. Factual Background
The following facts are undisputed on appeal: on May 25, 2005, Mosbarger was driving on Washington State Highway 106, at a point within the external boundaries of the Skokomish Reservation. She was cited by a tribal police officer for violating the Tribal Code due to driving her vehicle 31 miles per hour in a zone with a posted 20 mile per hour speed limit. She was exceeding the 20 mph speed limit in a “posted school zone” and “an active school zone” in front of the Hood Canal School on the reservation. The school is located directly on Highway 106. The 20 mph speed limit and the existence of the school zone were posted. The infraction occurred at approximately 9:01 a.m. on a Wednesday.
We take judicial notice of the following facts: the Hood Canal School is a grade school (kindergarten through eighth grade) attended by 351 students in March 2004, of which, according to a federal report filed by the school, 125 students were in the category of “Federally recognized, including Alaska Natives”; the office hours of the Hood Canal School are 7:30 – 4:00 and students are scheduled to be at school from 8:45 a.m. to 3:00 p.m. each school day; the Hood Canal School was in session on May 25, 2005; and the Skokomish Tribal Nation has approximately nine hundred enrolled members/citizens.1
In its appellate brief, the Tribe alleges that school was in session on the date Mosbarger was speeding in the school zone and that children were present on the school ground immediately adjacent to the highway. The Tribe also asserts that most, if not all, Skokomish Tribal children residing on the reservation attend the Hood Canal School.2 Mosbarger did not dispute these allegations by the Tribe.
Parsons was cited for speeding for traveling 57 miles per hour in a 45 miles per hour posted zone on U.S. Highway 101 within the exterior boundary of the Reservation. The infraction describes the location of the alleged speeding as “Hy. 101 (N)/Hwy. 106.”
II. Standard of Review
“The Skokomish Tribal Code is silent regarding the standard for appellate court review of a trial court decision. In the absence of any specified standard of review, we review issues of fact under the ‘clearly erroneous’ standard and issues of law de novo.” Johns and McGhee v. Allen, No. SKO CV 06/03-171, at 1 (Skokomish Tribal Ct. App. Oct. 22, 2004) (forthcoming Vol. 6 Northwest Intertribal Court System Appellate Reporter). The question whether the Skokomish Tribe has civil jurisdiction over the conduct of non-Indians within the reservation’s border is a question of law which we review de novo. Compare Smith v. Salish Kootenai College, 434 F.3d 1127, 1130 (9th Cir. 2006 (en banc) (“The question of tribal court jurisdiction is a federal question of law, which we review de novo.”).
The jurisdictional issue presented in this appeal is whether the Tribal Government and the Tribal Court have regulatory and adjudicatory jurisdiction to prosecute the civil traffic infractions issued to Mosbarger and Parsons for speeding on the Skokomish Reservation.
“Jurisdictional disputes have been called ‘[t]he most complex problems in the field of Indian Law.’” County of Lewis v. Allen, 163 F.3d 509, 513 (9th Cir. 1998) (en banc) (quoting William C. Canby, Jr., American Indian Law 111 (1998)). It is the duty of a tribal court “to explain to the parties the precise basis for accepting jurisdiction . . . .” National Farmer’s Union Ins. Co. v. Crow Tribe, 471 U.S. 845, 857 (1985).
The Constitution of the Skokomish Tribe provides: “Except as prohibited by the Treaty of Point No Point and Federal Law, the Skokomish Tribe shall have jurisdiction over all persons, property, lands . . . and all activities occurring within the exterior boundaries of the Skokomish Indian Reservation.” Skokomish Const., art. I, sec. 1, www.skokomish.org.3 We are directed by tribal law to review the tribal treaty and federal law to determine the issue before us. We have reviewed the 1855 Skokomish Treaty of Point No Point and find no relevant provisions to guide us. Seewww.skokomish.org/SkokConstitution&Codes/Constitution/Treaty.htm. Thus, we will turn to federal case law because we are unaware of any federal statutory provisions that apply to this situation, and the parties have cited none.
There is extensive federal case law on the subject of tribal civil jurisdiction over non-Indians and their activities on Indian reservations. The rule that we must apply is found in Montana v. United States, 450 U.S. 544 (1981). The Supreme Court has called Montana the “pathmarking case concerning tribal civil authority over nonmembers.” Strate v. A-1 Contractors, 520 U.S. 438, 445 (1997); accord Nevada v. Hicks, 533 U.S. 353, 358 (2001).
According to the Strate Court, “Montana thus described a general rule that, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation, subject to two exceptions[.]” Strate, 520 U.S. at 446. The two exceptions that recognize factual situations where a tribal government does possess civil jurisdiction over non-Indians for their activities on non-Indian owned lands within a reservation were defined in Montana, 450 U.S. at 565-66:
To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. 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…. 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. (citations omitted).
In addressing Mosbarger’s appeal, we focus on the second Montana exception because the Tribe did not allege that she had entered any kind of contract or “other arrangements” with the Tribe or its members that might recognize jurisdiction in the Tribe under the first exception. The Supreme Court test for the second exception is plainly a factual one: Does the “conduct of non-Indians on fee lands within [a] reservation . . . threaten or ha[ve] some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Montana, 450 U.S. at 566. We will apply that test to the factual situation presented in this case.
On May 25, 2005, Mosbarger was driving on the Skokomish Reservation on Washington State Highway 106. In a nearly identical situation in Strate, the Supreme Court decided to “align the [state highway] . . . with land alienated to non-Indians.” Strate, 520 U.S. at 456. Following that decision, we will do the same. Because Mosbarger was speeding on land considered the equivalent of land within a reservation owned in fee simple by non-Indians, we must apply the Montana test. Under that test and its second exception, the Skokomish Tribe could not have jurisdiction over Mosbarger unless her “conduct threaten[d] or ha[d] some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Montana, 450 U.S. at 566. We hold that the facts in this case meet that test and the Tribe has authority to regulate Mosbarger and the speed limit on state roads by the school on the reservation and that the Tribal Court has adjudicatory jurisdiction to decide this case.
Mosbarger exceeded the tribal 20 mph speed limit for school zones by 11 miles per hour.4 She was aware that she was speeding within a school zone because the existence of the school zone and the speed limit was posted on the highway. She was ticketed on Wednesday May 25, which was a school day, at 9:01 a.m. in the morning. Numerous Indian and Skokomish children attend the school.
These facts establish that Mosbarger’s “conduct threaten[d] or ha[d] some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”Montana, 450 U.S. at 566. By speeding in front of the grade school, Mosbarger endangered every student in the school. See Oregon Department of Transportation, A Guide to School Area Safety, (February 2005) (school zones are particularly hazardous because of large numbers of motorists and pedestrians; most children do not perceive traffic dangers like “an adult would under the same circumstances.”); Elizabeth J. Young & Karen K. Dixon, The Effects of School Zones on Driver Behavior, (May 2003 Georgia Institute of Technology) (speeding in school zones is dangerous to children) [http://www.urbanstreet.org/2nd_sym_proceedings/Volume%202/Young.pdf].
Jurisdictions throughout the United States recognize this seemingly self-evident fact -- speeding near schools is extremely dangerous to children. See, e.g., ORS 801.462 (school zones are 20 mph statutory speeds limits); Oregon Dept. of Transportation, Children in Traffic(videos presenting traffic situations from the child’s point of view and developmental limitations); Oregon Dept of Education, The Oregon Pedestrian and School Bus Safety Book and the Oregon Traffic Patrol Manual; American Automobile Association, Traffic Safety Services Catalog (materials for adult crossing guards, school bus safety, traffic safety education for preschool children and student pedestrians); Federal Highway Admin. & National Highway Traffic Safety Comm., Pedestrian Safety Program Resource Kit; Harborview Injury Prevention and Research Center, Seattle, Washington (pedestrian safety research and program for child pedestrian safety).
The Oregon Court of Appeals recently noted that the very “purpose” of a “speed limit is ... to protect the health, welfare, and safety of citizens,” and that this is “one of the most fundamental of all public policies.” Machado-Miller v. Mercereau & Shannon, LLP, 43 P.3d 1207, 180 Or. App. 586, 594 (2002). Thus, it is evident that the Skokomish laws controlling speeding in the school zone on the reservation serve the purpose of protecting the health and welfare of the Tribe’s minor citizens and the other children attending the Hood Canal School.
Also important to our decision affirming jurisdiction in this case under Montana is the fact that simply posting 20 mph signs and designating school zones has been shown not to control dangerous speeding around children. Traffic signs alone do not address nor solve the public policy issue for the Skokomish Tribe of protecting the health and welfare of its youngest citizens. See, e.g., Young & Dixon, at 4, 7 & 9; Charlie Saibel et al., Driver Perception of School Traffic Control Devices, ITE Journal, Vol. 69, Issue 11, at 38-42 (1999 Institute of Transportation Engineers, Washington D.C.); Patrick McCoy et al., School Speed Limit and Speeds in School Zones, Transportation Research Record 1254, at 1-7 (1990 Transportation Research Board, Washington D.C.). These studies show that speed limit signs are not effective at controlling speeding in school zones. Young & Dixon, at 4, 7 & 9; Saibel et al., at 38-42; McCoy et al., at 1-7. They conclude that only a police presence and the actual enforcement of school zone speed limits is effective in achieving lower and safer speeds. Young & Dixon, at 4. Consequently, the only effective tool to protect the young tribal citizens enrolled at Hood Canal School is for the Skokomish Tribe to proactively control speeding near the reservation school. Tribal police enforcement of the school zone speed limit is crucial to protect all the children at the Hood Canal School, Indian and non-Indian, and directly affects the protection and the health and welfare of the Tribe and its citizens.
Governmental entities throughout the United States recognize these facts and strive to protect their youngest citizens and their families from traffic related threats to their health and welfare by enacting and enforcing low speed limits near schools. The Skokomish Tribe agrees with this policy and is attempting to protect the physical health and welfare of its school aged children so that these future leaders and citizens can grow up to help perpetuate and govern the Tribe. It is instructive to note that in Montana the Supreme Court cited as an example of the proper application and definition of the second exception one of its own cases about adoptions of Indian children. Montana, 450 U.S. at 566 (citing Fisher v. District Court, 424 U.S. 382 (1976)). This citation implies that the Supreme Court intended that issues regarding the protection of tribal children could fall within the second exception. We agree and find that this is one of those factual situations where protecting the health and welfare of tribal members requires tribal jurisdiction over non-Indians speeding in the reservation school zone.
The Skokomish Tribe also complies with another aspect of the Montana exception when it protects its young citizens who attend the reservation school because the Tribe is working to advance its own political integrity and economic security. Nearly every society and government throughout human history has recognized the paramount need to educate, protect, and nurture its younger citizens to perpetuate the future existence and economic success of the society and the government itself. Most societies and governments spend enormous amounts of time, money, and effort in educating, protecting and preserving these societal resources. It appears to us beyond question that the political integrity of the Skokomish Tribe, that is, the preservation of its future existence and operation is well served by protecting its future leaders and citizens. Furthermore, the economic success of the Tribe is guaranteed by educating and protecting tribal youth to become productive tribal citizens in the future and by avoiding catastrophic injuries and the economic costs which could devastate family and tribal resources. Lastly, it is evident that protecting the health and welfare of the Tribe as a unit and of the individual tribal families and citizens depends upon the physical protection of its youngest citizens. Nothing less than an all out effort to serve these fundamental public policies can be expected of the Tribe.
In addition, it is no surprise that the Tribe is pursuing policies and working to protect its minor citizens because this honorable conduct is an obligation of government and is part of the parens patriae duty all governments owe to protect their youngest and most vulnerable citizens. See, e.g., Schall v. Martin, 467 U.S. 253, 263 (1984) (“The State has ‘a parens patriae interest in preserving and promoting the welfare of the child,’”) (quoting Santosky v. Kramer, 455 U.S. 745, 766 (1982)); Black’s Law Dictionary 1003 (5th ed. 1979).
Some might argue that adverse conditions which only affect individual tribal members cannot be a “threat or [a] direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” That leads to the natural question of what is a tribe? Isn’t a tribe a group of Indian people who have voluntarily banded together bound by blood and family ties who agree to live under some form of tribal governmental control? What is the United States, or the States of Oregon or Washington for example? Aren’t they just conglomerations of their citizens? What is Washington other than a political entity with a designated territory, comprised of its citizens, and empowered by its people to govern, protect, and manage their political and macroeconomic affairs of state? When one speaks of the health or safety of the United States and protecting it from terrorist attacks, for example, aren’t we talking about the health and safety of the people of the United States? When the Supreme Court set out a test that focuses on the political integrity, economic security, and health and welfare of a tribe, wasn’t it considering the welfare of tribal citizens?
In our view, the United States and the states and Indian tribes are political groupings of people. What affects one citizen or many citizens ultimately affects the health and welfare of the government and society as a whole. The Montana Court illustrated this very point by focusing on individuals when it expressed the two exceptions that define the parameters of tribal governmental control over non-Indians. The Court created the exceptions in regards to fishing and hunting regulations that the Crow Tribe was trying to impose on non-Indian individuals on the Crow Reservation. The Montana test was devised to protect individual non-Indians from the possible overextension of tribal jurisdiction. The test was based on the actions and impacts on tribal individuals in either the first exception’s requirement that the non-Indian individual have entered some kind of consensual relationship with a tribe or with an individual tribal member, or the second exception’s analysis of the impact of the non-Indian individual’s conduct on the health and welfare of individual tribal members. Accordingly, the Supreme Court created and applied the Montana exceptions to the situations of individual Indians and non-Indians. To the Court, the tribe is the political representative of a group of Indian people and it is made up of the individual citizens, and the effect on Indian individuals is how the impact of the actions of non-Indians on a reservation is to be measured. When Montana discussed “the political integrity, the economic security, or the health or welfare of the tribe” we understand that the Court was talking about the tribal group, the tribal citizens/members, the individual Indians who make up the tribe. See McClanahan v. Arizona State Tax Comm., 411 U.S. 164, 181 (1973) (“when Congress has legislated on Indian matters, it has most often, dealt with the tribes as collective entities. But those entities are, after all, composed of individual Indians, and the legislation confers individual rights.”); Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d 587, 593-94 (9th Cir. 1983) (Navajo laws against self-help repossessions on the reservation protected the health and welfare of tribal members), cert. denied, 466 U.S. 926 (1984). We follow that understanding here.
Consequently, the application of the second exception of Montana requires us to review whether Mosbarger’s “conduct “threaten[ed] or ha[d] some direct effect on the political integrity, the economic security, or the health or welfare of the tribe[,]” Montana, 450 U.S. at 566, which includes an examination of the impact of her actions on individual tribal citizens. After examining the undisputed facts set out above, we hold that Mosbarger’s conduct of speeding through a school zone on the reservation in violation of tribal law and the posted 20 mph speed limit did pose a serious risk and threatened and endangered young tribal citizens which in turn threatened the political integrity (the continued and future existence and welfare of the Tribe), the economic security of the Tribe and individual Indians and Indian families (since enormous medical bills could have been incurred and the Tribe’s collective earning power and future economic prospects could have been seriously limited), and the health and welfare of the Tribe’s youngest citizens (which impacts the health and welfare of the Tribe as a whole). Mosbarger’s conduct thus meets the factual test of the second exception and the Skokomish Tribe has regulatory and adjudicatory jurisdiction over her actions in the school zone on the Reservation.
Would any court or government wait until there were dead or injured children before taking the kind of protective steps the Skokomish Tribe is undertaking? We think not. And the Montana second exception does not require the tribal government to wait until an actual catastrophic event occurs before taking jurisdiction. The threat of a direct effect on these tribal and individual Indian interests is sufficient to establish tribal jurisdiction over the conduct of non-Indians on non-Indian owned fee lands on a reservation.5
We need to address Mosbarger’s two arguments against tribal jurisdiction under the second exception. First, she argues that the Strate decision and several Ninth Circuit cases mandate that we dismiss this action for lack of tribal civil jurisdiction over her conduct. We recognize that federal courts have found tribal civil jurisdiction over non-Indians under the Montana second exception in only a few reported cases. See, e.g., Babbitt Ford, 710 F.2d at 592-94 (tribal ordinance and court judgment enforced against off-reservation business when it came on-reservation to repossess vehicles because the conduct threatened the health and welfare of tribal members and the tribe); Pinoleville Indian Community v. Mendocino County, 684 F.Supp. 1042, 1047 (N.D. Cal. 1988) (tribe had regulatory authority over the operation of cement and asphalt plants on non-Indian owned fee lands on the reservation because the plants would adversely affect the health and welfare of the tribe). The Ninth Circuit, however, has also upheld tribal jurisdiction over non-Indians in several other factual settings. See, e.g., Smith v. Salish Kootenai College, 434 F.3d 1127 (9th Cir. 2006) (en banc); McDonald v. Means, 309 F.3d 530 (9th Cir. 2002); Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201 (9th Cir. 2001) (en banc).
We also recognize that the United States Supreme Court has yet to decide a case in which it approved tribal civil jurisdiction over a non-Indian under the Montana test. But that does not mean that it will never do so. In its most recent case in which it utilized the Montanatest to the specific facts before it, the Court stated: “We leave open the question of tribal-court jurisdiction over nonmember defendants in general.” Nevada v. Hicks, 533 U.S. 353, 358 n.2 (2001). Thus, we assume that there must be factual settings under which the Montana test will be met. The Supreme Court must agree with this point because it and all the federal courts continue to recite and apply the Montana test. It is worth repeating that the Court stated emphatically in Montana: “To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands.” Montana, 450 U.S. at 565. We hold that this case presents squarely one of the instances where the Montana test is met and when a tribe can exercise civil jurisdiction over a non-Indian for actions within a reservation even on land deemed to be analogous to non-Indian owned fee land.
A first glance at the Strate decision, however, would seem to mandate a different result. “Our case law establishes that, absent express authorization by federal statute or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited circumstances.”Strate, 520 U.S. at 445. In Strate, two non-Indians had a traffic accident on a state highway within the borders of the Fort Berthold Indian Reservation in North Dakota. The seriously injured plaintiff sued the other driver in tribal court. As mentioned above, the Court analogized the state highway, where the accident occurred, to non-Indian owned fee lands within a reservation. Id. at 456. That being the case, the Court analyzed the situation under the Montana exceptions and held that the tribal court did not have adjudicatory jurisdiction to hear the case since the accident had occurred on a state highway and was between two non-Indian parties. The Court even quoted the Eighth Circuit that the suit was “distinctly non-tribal in nature” and was a “run-of-the-mill accident” involving “two non-Indians.” Strate, 520 U.S. at 457. (There were no tribal nor Indian parties or interests at issue in the original tribal court proceeding.)
Tribal court jurisdiction over the tort case could not be justified by the second Montana exception because the second exception was not satisfied just because a non-Indian might have driven carelessly on non-Indian fee lands on the reservation. “Undoubtedly, those who drive carelessly on a public highway running through a reservation endanger all in the vicinity, and surely jeopardize the safety of tribal members. But if Montana’s second exception requires no more, the exception would severely shrink the rule.” Strate, 520 U.S. at 457-58. The Court clearly read the second exception narrowly and even called it an “exceptional category.” Id. at 458-59. But the Court did not read the exception out of existence either. The Strate Court did not do away with the second exception and the Court continues to use it in deciding these types of cases. Atkinson Trading Company, Inc. v. Shirley, 532 U.S. 645, 657 (2001).
Notwithstanding the Court’s decision in the factual setting of Strate, we do not consider it to mandate a particular decision in the Mosbarger appeal. Here, the Skokomish Tribe is the plaintiff. This is not a suit between non-Indians in which tribal interests play no role. In sharp contrast, there is a significant and very important tribal interest at stake in this litigation; the assertion and exercise of the Tribe’s regulatory and adjudicatory authority to protect the political integrity, economic security, and the health and welfare of the Tribe and tribal children. There were no tribal or Indian plaintiffs or defendants in the original tribal court suit in Strate, and there was a complete absence of tribal issues and interests in that case.
In addition, Strate was a private tort action brought by one non-Indian against another. In contrast, the present case concerns a tribal government enforcing its laws and protecting tribal citizens. And finally, while the Strate Court was satisfied that the injured plaintiff in that case could bring her lawsuit in a North Dakota state court, Strate, 520 U.S. at 459, and in fact she had already filed a state lawsuit, id. at 445 n. 4, in the instant case it does not appear that the Tribe can pursue its case in any other forum. Hence, the important tribal interests at stake and the issue of Mosbarger’s dangerous conduct cannot be litigated in another court. We consider all these points to be significant enough by themselves, and even more so collectively, to distinguish the Strate decision and its facts from the present case. Instead, we have analyzed the Supreme Court’s Montana rule and its second exception to the specific facts in the case before us in reaching our decision.
We are also unconvinced by Mosbarger’s argument based on the Ninth Circuit cases she cites.6 In these cases, an Indian tribe was not a party in the original tribal court proceedings, there were no tribal interests at issue, and the plaintiffs had other state or federal forums available to them. All three of these factors are exactly the same as in Strate. The Ninth Circuit cases were also private tort suits brought under fact patterns that are quite dissimilar to the facts before us. In contrast, the Mosbarger case is not a tort case between private non-Indian litigants but instead it raises the issue of a violation of the Tribal Code and the suit is brought by the Skokomish Tribe. Mosbarger’s conduct created a serious risk to the political integrity, economic security, and the health and welfare of numerous tribal citizens, and threatened tribal interests in its own future and health and that of its tribal citizens and families. The Ninth Circuit cases are not applicable to the facts before us and do not suggest that we should dismiss this case due to a lack of tribal jurisdiction. We remain convinced that the Montana second exception remains a viable avenue to find tribal civil jurisdiction over non-Indians when the proper facts are presented and that the instant case is one of those situations.
Mosbarger also raises a second point. She cites the Ninth Circuit case Ford Motor Company v. Todecheene, 394 F.3d 1170, 1181 (9th Cir. 2005) and its use of the idea of “Tribal Self-Government” in discussing the second Montana exception. The Ninth Circuit panel correctly cited the Supreme Court’s use of similar ideas in setting out the second exception.Montana, 450 U.S. at 564; Strate, 520 U.S. at 459; Hicks, 533 U.S. at 360-61. In these passages, the Supreme Court cited and paraphrased several cases that upheld the authority of tribes to regulate their internal affairs and issues of self-government. The Court also quoted Williams v. Lee, 358 U.S. 217, 220 (1959) and its statement about tribal jurisdiction and “the right of reservation Indians to make their own laws and be ruled by them.” Strate, 520 U.S. at 459; see also Hicks, 533 U.S. at 360. Mosbarger interprets these discussions to mean that the second Montana exception can only recognize tribal jurisdiction over non-Indians for conduct on non-Indian lands within reservations when it will protect tribal self-government or control internal relations.7
We do not agree. In fact, to imply or interpret the discussion cited above to mean that the Supreme Court only intended the second exception to grant tribes jurisdiction in self-government and internal relations settings would be internally inconsistent with the Court’s expressly stated Montana test. This is so because this interpretation would by implication violate the express definition of the second exception given by the Court. The second exception recognizes tribal jurisdiction to regulate and adjudicate the actions of non-members of the tribe, people who are external and outside the citizenship and membership of the tribe. Instead of only looking internally into tribal relations and to internal tribal self-governance, the Montana exceptions look to a tribe’s external relationships and the conduct of non-Indian persons on lands not owned by a tribe. How then could we interpret the second exception so narrowly as to only apply it to a tribe’s internal relations or self-government? How could the external looking Montana exception only be applied to internal tribal affairs?
Instead, the second exception and the Court’s express definition of this avenue for tribal jurisdiction over non-Indians cannot be read that narrowly because the Court developed the test to be applied to non-Indians and to the conduct of non-Indians on non-Indian owned lands that threaten or directly affect the political integrity, economic security, and health and welfare of a tribe. We will apply the exception as the Supreme Court expressly defined it -- to non-Indians and non-tribal members and their conduct, that is, to persons and actions outside the internal, self-governmental activities of a tribe. We do not accept the strained interpretation and implied repeal of the Montana second exception that Mosbarger proposes.
Indeed, we think that if the U.S. Supreme Court was faced with this exact question it would agree that the Montana test expressly authorizes in the right circumstances a tribe’s exercise of jurisdiction over external relationships and jurisdictional authority over non-Indians and their conduct on non-Indian owned lands. Montana did not concern tribal control over internal issues, tribal citizens, or tribal self-government issues. That case and its progeny decided when tribal governments and courts could reach outside their internal affairs and have regulatory and adjudicatory jurisdiction over non-Indians. Montana by its own express terms is about the external relations and powers of a tribe.
Consequently, we have applied Montana and its second exception straight up, as the Court defined it, to the factual situation before us. We have applied the test of when a tribal government can exercise its jurisdiction over persons and activities external to the tribal government which occurred within the reservation but on lands the Supreme Court directs us to consider as not being owned by the Skokomish Tribe. We hold that the second Montanaexception is met in the specific factual setting of this case and that the Skokomish Tribe possesses governmental regulatory and judicial adjudicatory power to regulate and adjudicate the conduct of Mosbarger when she violated the speed limit in the school zone on a state highway within the reservation borders.
As we have noted, the test established by the Supreme Court for asserting tribal civil jurisdiction over a non-Indian on non-Indian owned lands under Montana is a factual one. In Case No. I 11834, the trial court appears to have relied on two key factual findings to reach its conclusion that Parsons’ speeding posed a threat or had some direct effect on the health or welfare of the Tribe and therefore came within the second exception of Montana. First, the trial court appears to have relied on a declaration of the Director of the Tribe’s Department of Public Safety8 in finding that “the section of Highway 101 between the Highway 106 junction northward to Reservation Road” (emphasis added) constitutes a sort of commercial district and civic center characterized by the presence of several tribally owned businesses, the Tribal Casino, a church, a cemetery, and the Hood Canal School.9 See Order Denying Motion to Reconsider, Skokomish Tribal Court, June 16, 2005, p. 2. The Court then found that Parsons speeding occurred in this commercial district/civic center. See Order Denying Motion to Reconsider, Skokomish Tribal Court, June 16, 2005, p. 4 (“In this specific instance, Parsons’ conduct, exceeding the posted speed limit within the reservation on Highway 101 between the junction with Highway 106 and Reservation Road, ‘threatens or has some direct effect on the health or welfare of the tribe.’”).
A careful review of the record, however, establishes that Parsons was clocked by radar speeding while he was south of the junction of Highway 101 and 106, not north of it. While the record indicates that Parsons ultimately pulled over and was cited north of the junction of Highways 101 and 106 at Reservation Road, there is no evidence whatsoever in the record that Parsons was speeding through the commercial district/civic center that apparently begins at the junction of Highways 101 and 106 and continues north to Reservation Road. A finding such as this that is not supported by evidence in the record is clearly erroneous and must be reversed under the standard of review set forth by the Skokomish Tribal Court of Appeals in Johns and McGhee v. Allen, supra.
The Tribe has failed to prove exactly where on the Reservation Parsons was allegedly speeding and it has failed to establish facts about the character of that location so that we can
apply the Montana test to Parsons’ conduct as we have applied the test to Mosbarger’s conduct. Based on this record, the Tribe has not carried its burden of proving that it has jurisdiction over Parsons’ conduct on the reservation. We therefore vacate the trial court judgment in Case No. I 11834 and dismiss the citation against Parsons.
In accordance with the reasoning and federal case law set forth above, we affirm the decision of the Skokomish Trial Court in case I 12774 Skokomish Tribe v. Mosbarger.
In case I 11834, Skokomish Tribe v. Parsons, we vacate the trial court judgment and dismiss the case because the Tribe did not establish the factual test required for tribal civil jurisdiction over Parsons’ conduct on the reservation.
Pursuant to Skokomish Tribal Code section 3.01.115, Appellate Rule 115, we order each party to bear their own costs.
“Indian Student Count,” report to the U.S. Dept. of Education, May 4, 2004. Washington State Governor’s Office of Indian Affairs, http://www.goia.wa.gov/Tribal-Information/Tribes/skokomish.htm; Hood Canal School web site, http://www.hoodcanal.wednet.edu/generalinfo.htm; Hood Canal School District No. 404 2004-05 Student School Calendar. See Skokomish Tribal Code, Rules of Evidence: 3.01.041, Rule 41(d) “The judge may take notice of facts which are a matter of official public record, even if no party introduces them into evidence.”
Tribe's Response Brief, at 2. The tribal court rules allow us to rely on the arguments of the parties as presented in their briefs. Rules of Appellate Procedure: 3.01.110, Appellate Rule 110 “Cases appealed pursuant to these rules shall be decided on the basis of the trial court record and any written or oral arguments presented by the parties.”
Even though the text of the Constitution seems to require that an exception to tribal jurisdiction be defined in both the Treaty and in federal law, we do not read the word “and” to mean that both sources of law have to define the same exception to our jurisdiction. In this instance, we read the word “and” to mean “or.”
The Tribal Code, 8.61.440, provides: Maximum Speed Limit When Passing School or Playground Crosswalks - It is unlawful for the operator of any vehicle to operate the same at a speed in excess of twenty miles per hour upon a highway when passing any marked school or playground zone when the marked school or playground zone is fully posted with standard school speed limit signs or standard playground speed limit signs.
In Montana, the Court held that non-Indian hunting and fishing on non-Indian owned fee lands within the Crow Reservation did not meet the second exception. However, the Court had not been presented in that case with any facts even raising the second exception. Babbitt Ford, 710 F.2d at 592. The Crow Tribe’s “complaint in the District Court did not allege that non-Indian hunting and fishing on fee lands imperil the subsistence or welfare of the Tribe.”Montana, 450 U.S. at 566. Thus it was an easy decision that the second exception was not met. That factor alone distinguishes the holding in Montana on the second exception from the very fact specific situation before us.
Ford Motor Company v. Todecheene, 394 F.3d 1170, 1181 (9th Cir. 2005); County of Lewis v. Allen, 163 F.3d 509 (9th Cir. 1998) (en banc); Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997). Ninth Circuit cases are persuasive precedent and we consider them carefully.
A reasonable argument can be made that the Skokomish Tribe is serving self-government interests when it protects its future tribal leaders and citizens by protecting its minor citizens. Furthermore, the enforcement of tribal laws is an act of self-government.
Parsons argues that the trial court committed error by considering the factual assertions in the declaration because it was submitted post-judgment in response to Parson’s Motion for Reconsideration, rather than as part of a proper fact-finding proceeding. In light of our holding, we need not address this issue.
There is no evidence concerning the proximity of the school to U.S. Highway 101 and there is no claim that any portion of Highway 101 is posted as a school zone, as is the case with Washington State Highway 106.