FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WATER WHEEL CAMP RECREATIONAL
AREA, INC. and ROBERT JOHNSON,
Plaintiffs-Appellees,
v. No. 09-17349
GARY LARANCE, The Honorable D.C. No.
2:08-CV-00474-
Judge in his capacity as the Chief
and Presiding Judge of the DGC
Colorado River Indian Tribes
Tribal Court, JOLENE MARSHALL,
Defendants-Appellants.
WATER WHEEL CAMP RECREATIONAL
AREA, INC. and ROBERT JOHNSON,
Plaintiffs-Appellants,
No. 09-17357
v.
D.C. No.
GARY LARANCE, The Honorable 2:08-CV-00474-
Judge in his capacity as the Chief DGC
and Presiding Judge of the
OPINION
Colorado River Indian Tribes
Tribal Court, JOLENE MARSHALL,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted
February 17, 2011—San Francisco, California
Filed June 10, 2011
8021
8022 WATER WHEEL CAMP v. LARANCE
Before: Richard C. Tallman and Consuelo M. Callahan,
Circuit Judges, and Suzanne B. Conlon,* District Judge.
Per Curiam Opinion
*The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
WATER WHEEL CAMP v. LARANCE 8025
COUNSEL
Tim Vollmann and Gwenellen P. Janov (argued), Albuquer-
que, New Mexico, for defendants-appellants The Honorable
Gary LaRance and Jolene Marshall.
Dennis J. Whittlesey (argued), Dickinson Wright PLLC,
Washington D.C., for plaintiff-cross-appellant Water Wheel
Camp Recreational Area, Inc., and plaintiff-appellee Robert
Johnson.
Ellison Folk and Winter King, Shute, Mihaly & Weinberger
LLP, San Francisco, California; Eric Shepard, Office of the
Attorney General, Parker, Arizona, for amicus curiae Colo-
rado River Indian Tribes.
Carl Bryant Rogers, VanAmberg, Rogers, Yepa, Abeita &
Gomez, LLP, Santa Fe, New Mexico; Melody L. McCoy,
Native American Rights Fund, Boulder, Colorado, for amicus
curiae The National American Indian Court Judges Associa-
tion.
John L. Smeltzer (argued), Environment & Natural Resources
Division, United States Department of Justice, Washington
D.C., for amicus curiae United States.
8026 WATER WHEEL CAMP v. LARANCE
Rob Roy Smith, Ater Wynne LLP, Seattle, Washington, for
amicus curiae Nez Perce Tribe, Stillaguamish Tribe of Indi-
ans, Confederated Salish and Kootenai Tribes of the Flathead
Reservation, Confederated Tribes of the Siletz Indians of Ore-
gon, Duckwater Shoshone Tribe, and the National Congress
of American Indians.
Timothy Ward Woolsey, Nespelem, Washington, for amicus
curiae Confederated Tribes of the Colville Indian Reservation.
OPINION
PER CURIAM:
A tribal court system exercised jurisdiction over a non-
Indian closely held corporation and its non-Indian owner in an
unlawful detainer action for breach of a lease of tribal lands
and trespass. It entered judgment in favor of the tribe. We
examine the extent of an Indian tribe’s civil authority over
non-Indians acting on tribal land within the reservation. We
hold that under the circumstances presented here, where there
are no sufficient competing state interests at play, Nevada v.
Hicks, 533 U.S. 353, 359-60 (2001), the tribe has regulatory
jurisdiction through its inherent authority to exclude, indepen-
dent from the power recognized in Montana v. United States,
450 U.S. 544 (1981). Because regulatory jurisdiction exists,
we also consider whether adjudicative jurisdiction exists. In
light of Supreme Court precedent recognizing tribes’ inherent
civil authority over non-Indian conduct on tribal land and
congressional interest in promoting tribal self-government, we
conclude that it does. Finally, applying traditional personal
jurisdiction principles, we hold that in this instance, the tribal
court has personal jurisdiction over a non-Indian agent acting
on tribal land.
WATER WHEEL CAMP v. LARANCE 8027
I
In 1975, the Colorado River Indian Tribes (“CRIT”) and
Water Wheel Camp Recreational Area, Inc. (“Water Wheel”)
entered into a thirty-two-year business lease of twenty-six
acres of CRIT tribal land located within the reservation along
the California side of the Colorado River. The land is held in
trust by the United States and the local Superintendent of the
Bureau of Indian Affairs (“BIA”) approved the lease under
the authority delegated by the Secretary of the Department of
the Interior, as required by law.1 See 25 U.S.C. § 415(a)
(2006). Throughout the term of the lease, Water Wheel oper-
ated a recreational resort on the leased tribal land that
included a marina, convenience store, bar, trailer and camping
spaces, and related facilities.
Robert Johnson, a non-Indian, purchased from non-Indian
owners half of Water Wheel’s stock in 1981 and the remain-
ing stock in 1985, at which point he became president of the
corporation. He controlled and operated the Water Wheel
resort on CRIT land for more than twenty-two years while liv-
ing at the site. Under the lease agreement, he collected rents
from the resort’s subtenants and paid that rent to the tribe. The
lease called for renegotiation of the minimum base rental
value after twenty-five years to more accurately reflect the
current market value, but in 2000, when it was time to renego-
tiate, the CRIT and Johnson (acting on behalf of Water
Wheel) failed to reach an agreement. After that, Water Wheel
stopped making payments as required by the lease. Beginning
in 2001, the corporation stopped paying the required percent-
age of gross business receipts. It paid only nominal rent in
2003 and 2004, and failed to pay any rent at all beginning in
2005.
1
Water Wheel contested the status of the land before the tribal court, but
waived the argument before the district court. Water Wheel and Robert
Johnson concede that outside of the lease, they have no right to occupy or
use the land.
8028 WATER WHEEL CAMP v. LARANCE
When the lease expired on July 6, 2007, Water Wheel and
Johnson failed to vacate the property “peaceably and without
legal process” as the lease required. Instead, Johnson contin-
ued to operate Water Wheel and collect funds from resort
patrons, but paid nothing to the tribe. When he refused to
vacate, the CRIT filed suit against Water Wheel and Johnson
in tribal court for eviction, unpaid rent, damages from the
tribe’s loss of use of their property, and attorney’s fees. John-
son and Water Wheel challenged both the tribe’s right to evict
them and the jurisdiction of the CRIT tribal courts. They
moved to dismiss, arguing in relevant part that the tribal court
lacked subject matter jurisdiction under Montana, 450 U.S.
544, and lacked personal jurisdiction over Johnson.
The tribal court denied the motions to dismiss and, follow-
ing a three-day trial on the merits, ruled in favor of the CRIT
on all claims. The tribal court found that because Water
Wheel had entered into a consensual relationship with the
tribe through commercial dealings, the court had subject mat-
ter jurisdiction over Water Wheel under Montana’s first excep-
tion.2 Regarding Johnson himself, the tribal court reasoned
that it had subject matter jurisdiction over the breach of lease
under Montana’s first exception and that it had personal juris-
diction over him because Johnson had “sufficient minimum
contacts” with the CRIT to support the exercise of jurisdic-
tion. Specifically, the court determined that Johnson’s busi-
ness dealings and his continuing trespass after the lease
expired provided sufficient contacts necessary to establish
personal jurisdiction. The court further reasoned that it had
subject matter jurisdiction over Water Wheel and Johnson
2
Montana, discussed in greater detail below, held that a tribe may not
regulate the activities of non-Indians on non-Indian fee land within the
reservation unless one of two exceptions applies. The first exception exists
where non-Indians “enter consensual relationships with the tribe or its
members,” and the second exception exists where the conduct of a non-
Indian “threatens or has some direct effect on the political integrity, the
economic security, or the health or welfare of the tribe.” 450 U.S. at 566.
WATER WHEEL CAMP v. LARANCE 8029
through its own laws and ordinances for purposes of eviction
and assessing damages.
Finally, the tribal court noted that Water Wheel and John-
son had repeatedly and willfully disobeyed pretrial orders
compelling discovery of financial and corporate records. As
a sanction, the court found as true the tribe’s contention that
Water Wheel and Johnson were “alter egos” and, pursuant to
tribal rules of civil procedure that mirror the Federal Rules of
Civil Procedure, that the facts embraced in the discovery
requests were established as the tribe had claimed. Specifi-
cally, the tribal court found that Water Wheel was inade-
quately capitalized; that the corporation and Johnson had
made gifts to each other since 1999 in fraud of creditors; and
that Johnson borrowed funds for his own personal use, failed
to maintain separate financial records, failed to keep formal
corporate board meeting minutes, failed to elect directors, and
had commingled corporate money with his own personal
assets instead of paying the rent. In light of these factual find-
ings, the tribal court pierced the corporate veil to hold John-
son personally and jointly liable for all damages related to
breach of the lease agreement.
The tribal court of appeals affirmed.3 In a fifty-eight-page
opinion, the appellate court held that the CRIT had subject
matter jurisdiction both through its inherent sovereign author-
ity and through the first and second Montana exceptions. The
court noted the importance the Supreme Court has placed on
land ownership in determining questions of civil jurisdiction.
It also observed that in light of the long-recognized power of
Indian tribes to exclude non-Indians from Indian-owned land,
the Court has, with one narrow exception, “consistently
upheld the exercise of tribal authority over non-member activ-
3
The court reversed the award for trespass damages and remanded for
recalculation based on the fair rental value of the formerly leased property.
That issue is not before us.
8030 WATER WHEEL CAMP v. LARANCE
ity on tribal or other Indian owned land within an Indian res-
ervation” (emphasis in original).
The appellate court further determined that Montana’s first
exception was satisfied because the possessory claims of
Water Wheel and Johnson flowed solely from a federally
approved surface lease of lands owned by the tribe within its
reservation and thus clearly constituted a consensual relation-
ship. Additionally, the court found that Montana’s second
exception was satisfied because substantial tribal revenues
were at stake and because, “[f]or the Tribe, as for most Indian
tribes, its land constitutes its single most valuable economic
asset,” and the activities of Johnson and Water Wheel inter-
fered with the tribe’s ability to manage and use its own land.
Regarding personal jurisdiction over Johnson, the court
found that in agreeing to and benefitting from the lease, John-
son had consented to the tribal court’s exercise of jurisdiction.
For purposes of the trespass claim, the court found that the
damages were properly directed at Johnson as an individual
because he had overstayed the lease. The court also noted that
both Water Wheel and Johnson had been properly served
while on the Water Wheel site within the reservation.
While the case was pending before the tribal court, Water
Wheel and Johnson filed a complaint in the District of Ari-
zona seeking declaratory and injunctive relief against the
tribal court’s exercise of jurisdiction. After the tribal court of
appeals issued its decision, the district court reviewed the
jurisdictional questions. The district court declined to reach
the question whether the tribe’s inherent authority to exclude
non-Indians from tribal land provided jurisdiction over Water
Wheel. Relying on the facts surrounding the lease between the
CRIT and Water Wheel, the district court found a consensual
relationship existed and that the tribal court had subject matter
jurisdiction over Water Wheel under Montana’s first exception.4
4
The court reasoned that it did not need to reach the question regarding
the tribe’s inherent authority given its decision that Montana’s first excep-
WATER WHEEL CAMP v. LARANCE 8031
The court further determined that the tribe had not waived its
sovereign powers through the lease and that BIA regulations
did not preempt tribal court jurisdiction.
The district court rejected the tribe’s argument that its
inherent power to exclude provides a basis for jurisdiction
over Johnson independent of Montana, reasoning that Mon-
tana applied to determine whether a tribe could exercise its
inherent authority to exclude. In a footnote, the court
attempted to clarify that its decision addressed only whether
the tribe’s authority to exclude provided a jurisdictional basis
for Johnson, not that Montana would prevent the tribe from
excluding Johnson from tribal land. The court did not con-
sider the connection between the tribe’s authority to exclude
and its regulatory jurisdiction, nor did it consider whether the
tribe’s status as landowner made any difference to the analy-
sis.
Considering tribal court’s jurisdiction over Johnson, the
district court first determined whether Johnson’s relationship
with the CRIT was consensual. Johnson argued that he had
protested the CRIT’s involvement and had not understood that
he, personally, would be dealing with the tribe, so the rela-
tionship was not voluntary. The district court agreed, noting
that the tribal court made no factual findings regarding volun-
tariness to which the clearly erroneous standard of review
could be applied. The district court reasoned that the evidence
regarding Johnson’s personal understanding could not “fairly
be characterized as his personal consent to the tribe’s jurisdic-
tion,” so Johnson could not have entered into a consensual
relationship with the tribe.
tion provided a basis for jurisdiction. Apparently, the court failed to recog-
nize that in applying Montana unnecessarily, it improperly expanded
limitations on tribal sovereignty that, with only one narrow exception,
have been applied exclusively to non-Indian land.
8032 WATER WHEEL CAMP v. LARANCE
Finally, the district court rejected the argument that the
tribal court had jurisdiction over Johnson through a provision
in the lease specifying that Water Wheel, its agents, and its
employees would abide by tribal laws and regulations. Noth-
ing in the provision, the court reasoned, suggested that Water
Wheel had agreed that its agents would be subject to tribal
court jurisdiction. The district court declined to consider the
second Montana exception, reasoning that the defendants had
not made that argument.
Both parties appealed.
II
We have jurisdiction under 28 U.S.C. § 1291. A decision
regarding tribal court jurisdiction is reviewed de novo, and
factual findings are reviewed for clear error. Smith v. Salish
Kootenai College, 434 F.3d 1127, 1130 (9th Cir. 2006); FMC
v. Shoshone-Bannock Tribes, 905 F.2d 1311, 1313-14 (9th
Cir. 1990). We have also recognized that because tribal courts
are competent law-applying bodies, the tribal court’s determi-
nation of its own jurisdiction is entitled to “some deference.”
Id. at 1313 (citing Santa Clara Pueblo v. Martinez, 436 U.S.
49, 65-66 (1978)).
As we consider questions of tribal jurisdiction, we are
mindful of “the federal policy of deference to tribal courts”
and that “[t]he federal policy of promoting tribal self-
government encompasses the development of the entire tribal
court system, including appellate courts.” Iowa Mut. Ins. Co.
v. LaPlante, 480 U.S. 9, 16-17 (1987); see also United States
v. Wheeler, 435 U.S. 313, 332 (1978) (recognizing that “tribal
courts are important mechanisms for protecting significant
tribal interests”).
III
In considering the extent of a tribe’s civil authority over
non-Indians on tribal land, we first acknowledge the long-
WATER WHEEL CAMP v. LARANCE 8033
standing rule that Indian tribes possess inherent sovereign
powers, including the authority to exclude, New Mexico v.
Mescalero Apache Tribe, 462 U.S. 324, 333 (1983) (“A
tribe’s power to exclude nonmembers entirely or to condition
their presence on the reservation is . . . well established.”),
unless Congress clearly and unambiguously says otherwise.
United States v. Lara, 541 U.S. 193, 200 (2004) (recognizing
that “the Constitution grants Congress broad general powers
to legislate in respect to Indian tribes, powers that we have
consistently described as ‘plenary and exclusive’ ” (citations
omitted)); Santa Clara Pueblo, 436 U.S. at 58, 60 (recogniz-
ing Congress’s “superior and plenary control” over matters of
tribal sovereignty and noting that “a proper respect both for
tribal sovereignty itself and for the plenary authority of Con-
gress in this area cautions that we tread lightly in the absence
of clear indications of legislative intent”); see also William C.
Canby, Jr., American Indian Law in a Nutshell 101 (5th ed.
2009) (“Although the doctrine of plenary power of Congress
over tribal sovereignty has its critics, it remains in full
strength in the courts, so long as Congress makes its intent to
limit sovereignty clear.” (internal citation omitted)).
From a tribe’s inherent sovereign powers flow lesser pow-
ers, including the power to regulate non-Indians on tribal
land. South Dakota v. Bourland, 508 U.S. 679, 689 (1993)
(recognizing that a tribe’s power to exclude includes the inci-
dental power to regulate). We also adhere to the Supreme
Court’s instruction that a tribe’s adjudicative authority may
not exceed its regulatory authority. Strate v. A-1 Contractors,
520 U.S. 438, 453 (1997). To exercise its inherent civil
authority over a defendant, a tribal court must have both sub-
ject matter jurisdiction—consisting of regulatory and adjudi-
cative jurisdiction—and personal jurisdiction. The question
we consider is whether and to what extent Montana limits
these powers. We turn first to the question of subject matter
jurisdiction.
8034 WATER WHEEL CAMP v. LARANCE
A
Montana is “the pathmarking case concerning tribal civil
authority over nonmembers.” Strate, 520 U.S. at 445. In Mon-
tana, the Supreme Court stated that the “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 with-
out express congressional delegation.” Montana, 450 U.S. at
564. The narrow question the Court considered in light of this
test concerned the tribe’s exercise of regulatory jurisdiction
over non-Indians on non-Indian land within the reservation.5
Id. at 557 (“Though the parties in this case have raised broad
questions about the power of the Tribe to regulate hunting and
fishing by non-Indians on the reservation, the regulatory issue
before us is a narrow one . . . the question of the power of the
Tribe to regulate non-Indian fishing and hunting on reserva-
tion land owned in fee by nonmembers of the Tribe.”).
[1] The Court noted two exceptions to this limitation on
tribal powers. First, the Court stated that
[t]o 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 taxa-
tion, licensing, or other means, the activities of non-
members who enter consensual relationships with
the tribe or its members, through commercial deal-
ing, contracts, leases, or other arrangements.
Id. at 565. Second, the Court stated that, “[a] tribe may also
retain inherent power to exercise civil authority over the con-
duct of non-Indians on fee lands within its reservation when
that conduct threatens or has some direct effect on the politi-
5
A reservation may contain both Indian and non-Indian land, and Indian
land may also exist outside of a reservation. See 18 U.S.C. § 1151 (2006).
WATER WHEEL CAMP v. LARANCE 8035
cal integrity, the economic security, or the health or welfare
of the tribe. Id. at 566. These exceptions have come to be
known as the two Montana exceptions.
Since deciding Montana, the Supreme Court has applied
those exceptions almost exclusively to questions of jurisdic-
tion arising on non-Indian land or its equivalent. See analysis
infra. The exception is Hicks, discussed in greater detail
below, where the Court noted that while land ownership may
sometimes be a “dispositive factor” in determining whether a
tribe has jurisdiction over a non-Indian, it was not dispositive
when weighed against the state’s considerable interest in exe-
cuting a search warrant for an off-reservation crime. Hicks,
533 U.S. at 358-60, 363.
Despite the explicitly narrow nature of the question consid-
ered in Hicks, the district court applied Montana to determine
whether the CRIT has subject matter jurisdiction over non-
Indians Water Wheel and Johnson related to their activities on
tribal land within the CRIT reservation. The CRIT and the
United States, through its amicus brief, argue that Montana
does not apply to this case. Their position is that the CRIT’s
inherent authority to exclude provides regulatory jurisdiction
over Water Wheel and Johnson and that there are no compet-
ing state interests at play that might otherwise trigger Mon-
tana’s application. They further suggest that because
regulatory jurisdiction exists and neither Congress nor the
Supreme Court have said otherwise, the tribal court may also
exercise adjudicative jurisdiction. We agree.
As a preliminary matter, we consider the relationship
between the tribe’s inherent authority to exclude and its
authority to exercise jurisdiction. The district court stated, and
arguably held despite its footnote indicating otherwise, that a
tribe’s inherent authority to exclude a non-Indian from tribal
land is subject to Montana. But the Supreme Court has recog-
nized that a tribe’s power to exclude exists independently of
its general jurisdictional authority. See Duro v. Reina, 495
8036 WATER WHEEL CAMP v. LARANCE
U.S. 676, 696-97 (1990) (noting that even where tribes lack
criminal jurisdiction over a non-Indian defendant, they “pos-
sess their traditional and undisputed power to exclude persons
whom they deem to be undesirable from tribal lands. . . .
Tribal law enforcement authorities have the power to restrain
those who disturb public order on the reservation, and if nec-
essary, to eject them. Where jurisdiction to try and punish an
offender rests outside the tribe, tribal officers may exercise
their power to detain the offender and transport him to the
proper authorities”), superseded on other grounds by congres-
sional statute, 25 U.S.C. § 1301.
[2] Montana limited the tribe’s ability to exercise its power
to exclude only as applied to the regulation of non-Indians on
non-Indian land, not on tribal land. See Merrion v. Jicarilla
Apache Tribe, 455 U.S. 130, 144-45 (1982) (recognizing a
tribe’s inherent authority to exclude non-Indians from tribal
land, without applying Montana); see also Atkinson Trading
Co. v. Shirley, 532 U.S. 645, 654 (2001) (holding that the
Navajo Nation’s power to tax, derived in part from its power
to exclude, should be considered under Montana because,
unlike in Merrion, the incidence of the tax fell “upon non-
members on non-Indian fee land”); Bourland, 508 U.S. at 689
(noting that Montana established that “when an Indian tribe
conveys ownership of its tribal lands to non-Indians, it loses
any former right of absolute and exclusive use and occupation
of the conveyed lands”); Merrion, 455 U.S. at 144-45
(“Nonmembers who lawfully enter tribal lands remain subject
to the tribe’s power to exclude them. . . . When a tribe grants
a non-Indian the right to be on Indian land, the tribe agrees
not to exercise its ultimate power to oust the non-Indian as
long as the non-Indian complies with the initial conditions of
entry.” (emphasis in original)); Montana, 450 U.S. at 557
(recognizing a tribe’s inherent authority to condition the entry
of non-Indians on tribal land as a separate matter from
whether a tribe may condition the entry of non-Indians on
non-Indian land); Cohen’s Handbook of Federal Indian Law
§ 4.01[2][e], 220 (Nell Jessup Newton et al. eds., 2005) [here-
WATER WHEEL CAMP v. LARANCE 8037
inafter Cohen] (explaining that “[b]ecause the exclusionary
power is a fundamental sovereign attribute intimately tied to
a tribe’s ability to protect the integrity and order of its terri-
tory and the welfare of its members, it is an internal matter
over which the tribes retain sovereignty”); cf. Atkinson Trad-
ing Co., 532 U.S. 645 (holding that the Navajo Nation’s
power to exclude did not allow it to tax non-Indians on non-
Indian fee land (emphasis added)).6
6
To support its conclusion that Montana applies to a tribe’s inherent
authority to exclude persons from tribal land, the district court cited Plains
Commerce Bank v. Long Family Land and Cattle Co., Inc., 554 U.S. 316
(2008), and Hardin v. White Mountain Apache Tribe, 779 F.2d 476 (9th
Cir. 1985). Plains Commerce Bank considered a tribe’s authority to regu-
late the alienation of non-Indian land, not the tribe’s power to exclude
non-Indians from tribal lands or its sovereign interest in managing tribal
land. The district court misinterpreted passages from that opinion discuss-
ing Montana’s treatment of regulations that flow from a tribe’s inherent
tribal government powers on non-Indian lands to stand for the proposition
that a tribe’s power to exclude is subject to Montana. The case the relevant
passage in Plains Commerce Bank relies upon demonstrates the error in
the district court’s analysis. See 554 U.S. at 335 (citing Bourland, 508
U.S. at 691 n.11). In Bourland, the Court recognized that a tribe loses the
regulatory authority that implicitly exists through its power to exclude
when the land in question ceases to be tribal land, and cited Montana as
supporting that rule. In other words, loss of the power to exclude implies
the loss of the incidental power to regulate non-Indians unless a Montana
exception applies. Thus, Plains Commerce Bank does not support the dis-
trict court’s conclusion that a tribe’s right to exclude may be exercised on
tribal land only if Montana is satisfied.
Likewise, Hardin stated that the tribe’s exclusion of a criminal from the
reservation “falls within the Tribe’s civil powers” and, citing Montana,
reasoned that the ordinance was necessary for the health and safety of
tribal members. Hardin, 779 F.2d at 478. The court then cited Merrion,
455 U.S. at 144-45 (recognizing a tribe’s authority to exert its inherent
power of exclusion over a non-Indian on tribal land without applying
Montana), for the rule that tribes have the power to place conditions on
entry and that a non-Indian on tribal land remains subject to the risk that
the tribe will exercise its sovereign power of exclusion. Hardin, 779 F.2d
at 479.
Reading Hardin to stand for the proposition that a tribe’s inherent
power of exclusion is subject to Montana would conflict with Supreme
8038 WATER WHEEL CAMP v. LARANCE
[3] Here, through its sovereign authority over tribal land,
the CRIT had power to exclude Water Wheel and Johnson,
who were trespassers on the tribe’s land and had violated the
conditions of their entry. Having established that the tribe had
the power to exclude, we next consider whether it had the
power to regulate. The authority to exclude non-Indians from
tribal land necessarily includes the lesser authority to set con-
ditions on their entry through regulations. Merrion, 455 U.S.
at 144 (noting that the power to exclude “necessarily includes
the lesser power to place conditions on entry, on continued
presence, or on reservation conduct”); Bourland, 508 U.S. at
689 (noting that in opening up the Cheyenne Sioux Tribe’s
tribal lands for public use, Congress “eliminated the Tribe’s
power to exclude non-Indians from these lands, and with that
the incidental regulatory jurisdiction formerly enjoyed by the
Tribe”); id. at 691 n.11 (“Regulatory authority goes hand in
hand with the power to exclude.”); see also Montana, 450
U.S. at 557 (recognizing a tribe’s inherent authority to condi-
tion the entry of non-Indians on tribal land through regula-
tions).
As a general rule, both the Supreme Court and the Ninth
Circuit have recognized that Montana does not affect this fun-
damental principle as it relates to regulatory jurisdiction over
non-Indians on Indian land. See Bourland, 508 U.S. at 688-89
(describing Montana as establishing that when tribal land is
Court precedent, including the very case Hardin cites for support. Hardin
is best distinguished as considering the narrow question of whether the
tribe’s ordinance was an impermissible punishment against a non-Indian
for a criminal act. The court held the ordinance did not conflict with Oli-
phant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), reasoning that,
despite Oliphant’s prohibition against tribes asserting criminal jurisdiction
over non-Indians, civil jurisdiction remains. See Hardin, 779 F.2d at
478-79. Hardin referenced Montana’s second exception without consider-
ing whether it needed to do so, and appears to have cited the case primar-
ily to support its conclusion that despite a lack of criminal jurisdiction,
tribes retain some forms of civil jurisdiction over non-Indians. See id. at
478.
WATER WHEEL CAMP v. LARANCE 8039
converted to non-Indian land, a tribe loses its inherent power
to exclude non-Indians from that land and thereby also loses
“the incidental regulatory jurisdiction formerly enjoyed by the
Tribe”); see also Merrion, 455 U.S. at 144-45 (upholding a
tribal tax on non-Indians operating a business on tribal land
as a condition of entry derived from the tribe’s inherent power
to exclude, without applying Montana); Strate, 520 U.S. at
456 (noting that the land in question was equivalent to non-
Indian land and that “Montana, accordingly, governs this
case”); Mescalero Apache Tribe, 462 U.S. at 330-31 (deter-
mining that Montana did not apply to the question of a tribe’s
regulatory authority over nonmembers on reservation trust
land because “Montana concerned lands located within the
reservation but not owned by the Tribe or its members”);
McDonald v. Means, 309 F.3d 530, 540 n.9 (9th Cir. 2002)
(as amended) (rejecting the argument that Montana applies to
tribal land because Montana limited its holding to non-Indian
lands and Strate confirmed that limitation); Burlington N. R.
Co. v. Red Wolf, 196 F.3d 1059, 1062-63 (9th Cir. 1999)
(“The threshold question in this appeal is whether Montana’s
main rule applies, that is, whether the property rights at issue
are such that the land may be deemed ‘alienated’ to non-
Indians.”).
[4] We must therefore conclude that the CRIT’s right to
exclude non-Indians from tribal land includes the power to
regulate them7 unless Congress has said otherwise, or unless
7
Further bolstering our conclusion that the tribe has regulatory jurisdic-
tion is the fact that this is an action to evict non-Indians who have violated
their conditions of entry and trespassed on tribal land, directly implicating
the tribe’s sovereign interest in managing its own lands. See Plains Com-
merce Bank, 554 U.S. at 334-35 (“By virtue of their incorporation into the
United States, the tribe’s sovereign interests are now confined to manag-
ing tribal land . . . protecting tribal self-government, and controlling inter-
nal relations.” (internal citations and quotation marks omitted)); United
States. v. Mazurie, 419 U.S. 544, 557 (1975) (“Thus it is an important
aspect of this case that Indian tribes are unique aggregations possessing
attributes of sovereignty over both their members and their territory.”); see
also Merrion, 455 U.S. at 145 n.12 (recognizing that a tribe’s sovereign
power over tribal lands is distinguishable from its power over reservation
land generally).
8040 WATER WHEEL CAMP v. LARANCE
the Supreme Court has recognized that such power conflicts
with federal interests promoting tribal self government. Iowa
Mut. Ins. Co., 480 U.S. at 18 (“Tribal authority over activities
of non-Indians on reservation lands is an important part of
tribal sovereignty. Civil jurisdiction over such activities pre-
sumptively lies in the tribal courts unless affirmatively limited
by a specific treaty provision or federal statute.” (internal cita-
tions omitted)); Merrion, 455 U.S. at 146 (noting the “estab-
lished views that Indian tribes retain those fundamental
attributes of sovereignty . . . which have not been divested by
Congress or by necessary implication of the tribe’s dependent
status”); Santa Clara Pueblo, 436 U.S. at 56 (“Congress has
plenary authority to limit, modify or eliminate the powers of
local self-government which the tribes otherwise possess.”).
[5] We see no evidence of congressional intent to limit the
CRIT’s regulatory jurisdiction in this instance, and the
Supreme Court has on only one occasion established an
exception to the general rule that Montana does not apply to
jurisdictional questions arising from the tribe’s authority to
exclude non-Indians from tribal land. See Hicks, 533 U.S.
353. In Hicks, the Court held that where a state has a compet-
ing interest in executing a warrant for an off-reservation
crime, the tribe’s power of exclusion is not enough on its own
to assert regulatory jurisdiction over state officers and Mon-
tana thus applies. Id. at 359-60 (rejecting the tribe’s argument
that it could exercise its regulatory authority over state offi-
cers as a condition of entry for purposes of executing a search
warrant).
Even though in its analysis the Court interpreted Montana
broadly as applying to both Indian and non-Indian land, the
Court explicitly recognized that in some cases, land owner-
ship “may sometimes be a dispositive factor” in establishing
a tribal court’s regulatory jurisdiction over non-Indians. Id. at
360. Hicks expressly limited its holding to “the question of
tribal-court jurisdiction over state officers enforcing state
law” and left open the question of tribal court jurisdiction
WATER WHEEL CAMP v. LARANCE 8041
over nonmember defendants generally. Id. at 358 n.2; id. at
371 (noting that the issue being considered concerned “a nar-
row category of outsiders”). Furthermore, the Court did not
overrule its own precedent specifying that Montana ordinarily
applies only to non-Indian land.
We have recognized the limited applicability of Hicks. See
McDonald, 309 F.3d at 540 n.9 (rejecting the argument that
Montana should be extended to bar tribal jurisdiction over the
conduct of non-Indians on tribal land because doing so would
be inconsistent with Montana’s narrow holding and “[e]ven if
Hicks could be interpreted as suggesting that the Montana
rule is more generally applicable than either Montana or
Strate have allowed, Hicks makes no claim that it modifies or
overrules Montana”); see also Elliott v. White Mtn. Apache
Tribal Court, 566 F.3d 842, 850 (9th Cir. 2009) (acknowledg-
ing “the Supreme Court’s instruction that ownership of the
land may be dispositive in some cases” concerning the extent
of a tribe’s regulatory jurisdiction over a non-Indian and
explicitly rejecting the argument that Hicks forecloses tribal
court jurisdiction over non-Indians on tribal land).
[6] To summarize, Supreme Court and Ninth Circuit prece-
dent, as well as the principle that only Congress may limit a
tribe’s sovereign authority, suggest that Hicks is best under-
stood as the narrow decision it explicitly claims to be. See
Hicks, 533 U.S. at 358 n.2. Its application of Montana to a
jurisdictional question arising on tribal land should apply only
when the specific concerns at issue in that case exist. Because
none of those circumstances exist here, we must follow prece-
dent that limits Montana to cases arising on non-Indian land.
Doing otherwise would impermissibly broaden Montana’s
scope beyond what any precedent requires and restrain tribal
sovereign authority despite Congress’s clearly stated federal
interest in promoting tribal self-government. See Mescalero
Apache Tribe, 462 U.S. at 335-36 (recognizing that as a “nec-
essary implication” of Congress’s broad commitment to fur-
ther tribal self-government, “tribes have the power to manage
8042 WATER WHEEL CAMP v. LARANCE
the use of [their] territory and resources by both members and
nonmembers, to undertake and regulate economic activity
within the reservation, and to defray the cost of governmental
services by levying taxes” (internal citations omitted)). We
therefore hold that the CRIT has regulatory jurisdiction over
Water Wheel and Johnson for claims arising from their activi-
ties on tribal land, independent of Montana.
[7] In this instance, where the non-Indian activity in ques-
tion occurred on tribal land, the activity interfered directly
with the tribe’s inherent powers to exclude and manage its
own lands, and there are no competing state interests at play,
the tribe’s status as landowner is enough to support regulatory
jurisdiction without considering Montana. Finding otherwise
would contradict Supreme Court precedent establishing that
land ownership may sometimes be dispositve and would
improperly limit tribal sovereignty without clear direction
from Congress.
B
[8] Since deciding Montana, the Supreme Court has speci-
fied limits to the extent of a tribe’s adjudicative jurisdiction
over non-Indians three times: first in Strate, then in Hicks, and
most recently in Plains Commerce Bank. In all three cases,
the Court articulated the general rule that a tribe’s adjudica-
tive jurisdiction may not exceed its regulatory jurisdiction,
and in all three cases the Court found the tribe lacked regula-
tory, and therefore adjudicative, authority. The Supreme
Court has not yet considered the question of adjudicative
authority where regulatory jurisdiction exists. However, it is
clear that the general rule announced in Strate, and confirmed
in Hicks and Plains Commerce Bank, that adjudicative juris-
diction is confined by the bounds of a tribe’s regulatory juris-
diction, applies. Beyond that, because the Supreme Court has
repeatedly recognized that only Congress may restrict a
tribe’s inherent sovereignty, we must consider the question of
the CRIT’s adjudicative jurisdiction without contradicting the
WATER WHEEL CAMP v. LARANCE 8043
rules that have long governed tribes’ civil authority over non-
Indians on tribal land.
Because the CRIT has regulatory jurisdiction, there is no
danger that recognizing adjudicative jurisdiction would con-
flict with Strate, Hicks, or Plains Commerce Bank. Water
Wheel, Johnson, and the district court erroneously point to
Philip Morris USA, Inc. v. King Mountain Tobacco Co., Inc.,
569 F.3d 932 (9th Cir. 2009), for the proposition that Mon-
tana applies to questions of a tribe’s adjudicative authority. In
Philip Morris we determined that the Yakama Tribe lacked
regulatory, and therefore adjudicative, jurisdiction over non-
Indian corporation Philip Morris regarding federal trademark
registration. 569 F.3d at 945 (Fletcher, W., J., concurring); see
also id. at 942.
[9] In reaching its conclusion, the panel articulated its
understanding of the rules for determining both regulatory and
adjudicative jurisdiction. It cited Hicks, Montana, and Strate
for the proposition that a tribe’s adjudicative authority does
not exceed its regulatory authority. Id. at 939. It then stated
that “[t]he Montana framework is applicable to tribal adjudi-
cative jurisdiction, which extends no further than the Montana
exceptions,” id, and that “in this circuit, the Montana analysis
is controlling in tribal jurisdiction cases.” Id. at 941. But
Water Wheel’s and Johnsons’s suggestion that these state-
ments require us to apply Montana to the question of adjudi-
cative jurisdiction is unconvincing when considered against
context and controlling precedent.
The majority’s statement in Phillip Morris that Montana
applies to questions of adjudicative jurisdiction only aligns
with Supreme Court precedent if interpreted as saying that to
determine whether adjudicative jurisdiction exists, a court
must first determine whether regulatory jurisdiction exists.
See Hicks, 533 U.S. at 357, 374 (analyzing regulatory juris-
diction first, then determining that because the tribe lacked
regulatory jurisdiction it necessarily lacked adjudicative juris-
8044 WATER WHEEL CAMP v. LARANCE
diction); see also Plains Commerce Bank, 554 U.S. at 330
(holding that “the Tribal Court lacks jurisdiction to hear the
Longs’ discrimination claim because the Tribe lacks the civil
authority to regulate the Bank’s sale of its fee land.” (empha-
sis added)).
[10] Thus, if Montana applies to the question of regulatory
jurisdiction, it necessarily limits the court’s inquiry into adju-
dicative jurisdiction because the Supreme Court has held that
a tribe’s adjudicative jurisdiction may not exceed its regula-
tory jurisdiction. Philip Morris did not and could not overrule
McDonald, where the Ninth Circuit expressly rejected the
argument that Hicks applies to tribal land outside the specific
circumstances that existed in that case, and it could not over-
rule Supreme Court precedent establishing and confirming the
rule that Montana’s analysis applies specifically to non-Indian
land. For those reasons, Philip Morris’s comments regarding
jurisdiction are best understood as a reiteration of the
Supreme Court’s rule that a tribe’s adjudicative jurisdiction
may not exceed its regulatory jurisdiction.
Furthermore, Philip Morris did not involve a question
related to the tribe’s authority to exclude or its interest in
managing its own land. To the contrary, the activity in ques-
tion occurred off reservation. The tribal court clearly lacked
jurisdiction and, arguably, Montana did not even apply
because there the Court considered a tribe’s regulatory juris-
diction over activities on non-Indian fee land within the reser-
vation, not beyond the reservation’s borders where the tribe
lacked authority to regulate a non-Indian. Atkinson Trading
Co., 532 U.S. at 657 n.12 (observing that except in limited
circumstances, “there can be no assertion of civil authority
beyond tribal lands”); see Philip Morris, 569 F.3d at 945-46
(Fletcher, W., J., concurring) (noting that the panel majority’s
opinion answers a simple and straightforward question with
“an extended opinion containing a great deal of dicta”).
Because recognizing adjudicative jurisdiction would not
conflict with the rule articulated in Strate, Hicks, and Plains
WATER WHEEL CAMP v. LARANCE 8045
Commerce Bank, we consider whether recognizing adjudica-
tive jurisdiction would conflict with earlier precedent. Prior to
Hicks, the general rule for adjudicative authority over the con-
duct of non-Indians on tribal land was that tribes had jurisdic-
tion. See Iowa Mut. Ins. Co., 480 U.S. at 18 (observing that
a tribe’s inherent civil jurisdiction over non-Indian activities
on the reservation should be presumed unless Congress has
said otherwise); Santa Clara Pueblo, 436 U.S. at 65 (“Tribal
courts have repeatedly been recognized as appropriate forums
for the exclusive adjudication of disputes affecting important
personal and property interests of both Indians and non-
Indians.”); Williams v. Lee, 358 U.S. 217, 220 (1959) (recog-
nizing the traditional rule that if a crime occurs within a reser-
vation “by or against an Indian, tribal jurisdiction or that
expressly conferred on other courts by Congress has remained
exclusive,” and accordingly upholding exclusive tribal court
jurisdiction over an action brought by a non-Indian against an
Indian for an on-reservation debt).
The Supreme Court recently reaffirmed those long-standing
principles when it recognized the general rule that a tribe has
plenary jurisdiction over tribal land until or unless that land
is converted to non-Indian land. See Plains Commerce Bank,
554 U.S. at 328 (“Our cases have made clear that once tribal
land is converted into fee simple, the tribe loses plenary juris-
diction over it.”); see also Bourland, 508 U.S. at 689 (recog-
nizing that the change in land status from Indian to non-Indian
abrogates the tribe’s power to exclude and “implies the loss
of regulatory jurisdiction over the use of the land by others”).
[11] Here, the land is tribal land and the tribe has regula-
tory jurisdiction over Water Wheel and Johnson. While it is
an open question as to whether a tribe’s adjudicative jurisdic-
tion is equal to its regulatory jurisdiction, the important sover-
eign interests at stake, the existence of regulatory jurisdiction,
and long-standing Indian law principles recognizing tribal
sovereignty all support finding adjudicative jurisdiction here.
Any other conclusion would impermissibly interfere with the
8046 WATER WHEEL CAMP v. LARANCE
tribe’s inherent sovereignty, contradict long-standing princi-
ples the Supreme Court has repeatedly recognized, and con-
flict with Congress’s interest in promoting tribal self-
government. Accordingly, we hold that in addition to regula-
tory jurisdiction, the CRIT has adjudicative jurisdiction over
both Water Wheel and Johnson.8
C
Montana does not apply to this case. However, because we
disagree not only with the district court’s application of the
case in the first place, but also with its interpretation of the
case as it applies to Johnson, we briefly explain why, even if
Montana applied, the tribe would have subject matter jurisdic-
tion.
Water Wheel and Johnson propose that Montana’s first
exception requires a consensual relationship and that the rela-
tionship between the defendants and the tribe was not consen-
8
The district court correctly rejected Water Wheel’s argument that the
CRIT waived tribal jurisdiction. Water Wheel’s rights under the lease ter-
minated when it expired in 2007. Nevertheless, the corporation relies on
a parsed reading of the lease concerning the Secretary of the Interior’s
powers to enforce its provisions. The cited language does not constitute a
clear and unmistakable waiver of the CRIT’s sovereign power. See Mer-
rion, 455 U.S. at 148; Ariz. Public Serv. Co. v. ASPAAS, 77 F.3d 1128,
1135 (9th Cir. 1995).
Water Wheel also fails in arguing that (1) BIA regulations preclude
tribal court jurisdiction and (2) its notice to the BIA of tribal harassment
triggered the equivalent of a dispute resolution process that negates the
tribe’s authority to evict. Nothing in the BIA regulations limits what the
tribe can do and the regulations specifically recognize that tribes may
invoke remedies available to them under a lease. 25 C.F.R.
§ 162.619(a)(3). Furthermore, the “extent of the BIA’s policing of Indian
leases is to ensure that the lessees, whether Indian or non-Indian, fulfill
their contractual obligations . . . it has no statutory or regulatory authority
to take action against an Indian lessor. Such actions must be brought in
tribal or federal court.” Hawley Lake Homeowners’ Ass’n v. Deputy Assis-
tant Sec’y, 13 IBIA 276, 289 (1985).
WATER WHEEL CAMP v. LARANCE 8047
sual. They also suggest that we may not consider the second
Montana exception because the tribe failed to argue that
exception before the district court. As an initial matter, we
disagree that the tribal parties waived their arguments regard-
ing the second Montana exception. They sufficiently pre-
served both jurisdictional grounds, on which the tribal courts
expressly relied in reaching their decisions and which the
tribal parties raised in their district court brief. See O’Rourke
v. Seaboard Surety Co., 887 F.2d 955, 957 (9th Cir. 1989)
(“There is no bright-line rule to determine whether a matter
has been properly raised. A workable standard, however, is
that the argument must be raised sufficiently for the trial court
to rule on it.” (internal citations omitted)).
Regarding claims related to Water Wheel, the district court
correctly found that the corporation’s long-term business
lease with the CRIT for the use of prime tribal riverfront
property established a consensual relationship and that the
tribe’s eviction action bears a close nexus to that relationship.
The corporation had full knowledge that the leased land was
tribal property and that under the lease’s terms, CRIT laws
and regulations applied to the land and Water Wheel’s opera-
tions. The tribe clearly had authority to regulate the corpora-
tion’s activities under Montana’s first exception and—
considering that the business also involved the use of tribal
land and that the business venture itself constituted a signifi-
cant economic interest for the tribe—under the second excep-
tion as well. Montana, 450 U.S. at 565.
The district court then considered whether Johnson’s per-
sonal twenty-two-year relationship with the CRIT was subjec-
tively voluntary and consensual under Montana’s first
exception.9 The court erred in applying a subjective test to the
9
To assess Johnson’s subjective understanding of his relationship with
the tribe, the district court improperly relied on the Second Declaration of
Robert Johnson, which was not before the tribal court. See Nat’l Farmers
Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985). Because
8048 WATER WHEEL CAMP v. LARANCE
question of subject matter jurisdiction, which is not required
under Montana or its federal common law progeny, and is
irrelevant to resolving subject matter jurisdiction over a tort
claim. The Supreme Court has indicated that tribal jurisdic-
tion depends on what non-Indians “reasonably” should “antic-
ipate” from their dealings with a tribe or tribal members on
a reservation. Plains Commerce Bank, 554 U.S. at 338.
Regarding the tribe’s regulatory jurisdiction over the
breach of contract claim against Johnson personally, Johnson
argues the tribe lacks jurisdiction because any relationship he
entered into was on behalf of the corporation and not himself.
To support his position, Johnson cites Commodity Futures
Trading Commission v. Weintraub, 471 U.S. 343, 348 (1985)
(“As an inanimate entity, a corporation must act through
agents.”). Outside of the Indian law context, this argument is
often couched in terms of the “fiduciary shield rule” doctrine,
an equitable doctrine courts sometimes use to insulate corpo-
rate employees acting in their official capacities from per-
sonal jurisdiction in a distant forum. Robert A. Koenig,
Personal Jurisdiction and the Corporate Employee: Minimum
Contacts Meet the Fiduciary Shield, 38 Stan. L. Rev. 813,
813, 818 (1986). In that context, the Supreme Court has
rejected mechanical application of the rule and instructed that
courts should consider the circumstances to determine
whether a defendant should “reasonably anticipate being
haled into court” in the forum state. Calder v. Jones, 465 U.S.
783, 790 (1984) (quoting World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980)). Specifically, courts
should consider “the relationship among the defendant, the
forum, and the litigation.” Keeton v. Hustler Magazine, Inc.,
the district court’s review is akin to appellate review of the tribal court
record, this was error. Cf. id. at 856 (“[T]he orderly administration of jus-
tice in the federal court will be served by allowing a full record to be
developed in the Tribal Court before either the merits or any question con-
cerning appropriate relief is addressed.”).
WATER WHEEL CAMP v. LARANCE 8049
465 U.S. 770, 775 (1984) (quoting Shaffer v. Heitner, 433
U.S. 186, 204 (1977)).
Subject matter jurisdiction, on the other hand, concerns the
authority of a court to hear cases of a particular subject matter
and usually has nothing to do with the individual actions of
the parties. But under Montana’s first exception, a tribe’s
exercise of subject matter jurisdiction over a non-Indian
defendant depends on the existence of a “consensual relation-
ship” between the non-Indian defendant and the tribe or its
members. Thus, the nature and extent of an individual defen-
dant’s actions come into play.
We have recognized that the “jurisprudential contours of
what reasons suffice for the court to disregard the corporate
form for jurisdictional purposes are somewhat indistinct.”
Davis v. Metro Prods., Inc., 885 F.2d 515, 520 (9th Cir.
1989). Nevertheless, we have held that “the corporate form
may be ignored” in cases where the corporation is the “alter
ego” of the defendant, or where there is an “identity of inter-
ests” between the corporation and the individual. Id. at
520-21.
In this case, it is a matter of established fact that Johnson
was Water Wheel’s “alter ego” and, thus, “corporate separate-
ness is illusory.” Katzir’s Floor and Home Design, Inc. v. M-
MLS.com, 394 F.3d 1143, 1149 (9th Cir. 2004). Any actions
Johnson took on behalf of Water Wheel, he also took on
behalf of himself. We therefore consider whether Johnson as
an individual entered into a consensual relationship with the
tribe, without regard to any protections the corporate form
might otherwise offer.
For purposes of determining whether a consensual relation-
ship exists under Montana’s first exception, consent may be
established “expressly or by [the nonmember’s] actions.”
Plains Commerce Bank, 554 U.S. at 337. There is no require-
ment that Johnson’s commercial dealings with the CRIT be a
8050 WATER WHEEL CAMP v. LARANCE
matter of written contract or lease actually signed by Johnson.
See Montana, 450 U.S. at 565 (tribes may regulate the activi-
ties of nomembers who enter into “commercial dealing, con-
tracts, leases, or other arrangements” (emphasis added)). We
are to consider the circumstances and whether under those cir-
cumstances the non-Indian defendant should have reasonably
anticipated that his interactions might “trigger” tribal author-
ity. Id. at 338.
Johnson owned and operated Water Wheel on tribal land
for more than twenty years and had extensive dealings with
the CRIT before the lease expired. Additionally, Johnson was
on notice through the leases’s explicit terms that Water
Wheel, its agents, and employees were subject to CRIT laws,
regulations, and ordinances. These facts adequately support
the tribal court’s conclusion that Johnson had entered into a
consensual relationship with the tribe and could reasonably
anticipate that the tribe would exercise its jurisdictional
authority. Johnson’s subjective beliefs regarding his relation-
ship with the tribe do not change the consensual nature of that
relationship for purposes of regulatory jurisdiction. Moreover,
the tribe’s claims for unpaid rent and related damages arose
directly from this relationship.
As noted above, the commercial dealings between the tribe
and Johnson involved the use of tribal land, one of the tribe’s
most valuable assets. Thus, if Montana applied to the breach
of contract claim, either exception would provide regulatory
jurisdiction over Johnson.
As for the trespass claim, there is no legal or logical basis
to require a consensual relationship between a trespasser and
the offended landowner. This is particularly true when the
trespass is to tribal land, the offended owner is the tribe, and
the trespasser is not a tribal member. Merrion, 455 U.S. at
144. If tribes lacked authority to evict holdover tenants and
their agents, tribes would be discouraged from entering into
WATER WHEEL CAMP v. LARANCE 8051
financially beneficial leases with nonmembers for fear of los-
ing control over tribal land.
Evaluating the trespass claim under Montana’s second
exception, unpaid rent and percentages of the business’s gross
receipts here totaled $1,486,146.42 at the time of the tribal
court’s judgment. Johnson’s unlawful occupancy and use of
tribal land not only deprived the CRIT of its power to govern
and regulate its own land, but also of its right to manage and
control an asset capable of producing significant income.
Thus, in addition to the tribe’s undisputed authority to eject
trespassers from its own land, Montana’s second exception
would provide regulatory jurisdiction.
[12] Our analysis of adjudicative jurisdiction, see supra
Part III.B, applies once regulatory jurisdiction is established
under Montana, and, accordingly, the tribe would have both
regulatory and adjudicative jurisdiction over Water Wheel
and Johnson even if Montana applied.
IV
[13] To exercise civil authority over a defendant, a tribal
court must have both personal jurisdiction and subject matter
jurisdiction. See 18 William Meade Fletcher, Fletcher Cyclo-
pedia of the Law of Corporations § 8644.50 (rev. perm. ed.,
2006) (“Personal jurisdiction is, of course, distinguishable
from subject matter jurisdiction.”); see also Cohen § 7.02[2],
604 (“For a tribal court to hear a case, it must have not only
subject matter jurisdiction under both tribal and federal law,
but also personal jurisdiction over the defendant.”). One of
the most “firmly established principles of personal jurisdic-
tion” is that personal jurisdiction exists over defendants physi-
cally present in the forum state. Burnham v. Superior Court,
495 U.S. 604, 610 (1990). In-state personal service also
serves as a basis for personal jurisdiction. Id. at 615-16.
[14] Johnson lived on tribal land, which on its own serves
as a basis for personal jurisdiction. Additionally, he was
8052 WATER WHEEL CAMP v. LARANCE
served with tribal process at the Water Wheel location on
tribal land, and that service within the tribal court’s territorial
jurisdiction is also sufficient to confer personal jurisdiction.
We therefore hold that the tribal court has personal jurisdic-
tion over Johnson.
To the extent Johnson argues that the fiduciary shield rule
prevents the tribal court from exercising personal jurisdiction
over him, his argument fails. Assuming the fiduciary shield
rule applies to defendants present in the forum state, it would
not protect Johnson, an “alter ego” to Water Wheel. See Katz-
ir’s Floor & Home Design, Inc., 394 F.3d at 1149; see also
Keeton, 465 U.S. at 781 n.13 (“[W]e today reject the sugges-
tion that employees who act in their official capacity are
somehow shielded from suit in their individual capacity. . . .
Each defendant’s contacts with the forum State must be
assessed individually.”) (citing Calder, 465 U.S. at 790). Fur-
thermore, courts have held that jurisdiction over a corporate
agent is proper where the agent was not faithfully pursuing
corporate interests. See Koenig, supra, at 824-25.
Absent the fiduciary shield, a court may exercise personal
jurisdiction over a defendant where that defendant has suffi-
cient minimum contacts with the forum state such that the suit
does not offend “traditional notions of fair play and substan-
tial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945). In his role as president and owner of the corporation,
Johnson failed to pay rent and receipts owed to the tribe pur-
suant to the lease and failed to surrender the property peace-
fully. He also failed to adhere to corporate formalities in that
he had, among other things, commingled personal and busi-
ness funds, failed to maintain separate financial records, and
borrowed and used Water Wheel funds for his personal use
and the use of third persons, instead of paying the CRIT.
Johnson had notice through the lease that, as an agent of
Water Wheel, he was subject to CRIT laws, regulations, and
ordinances. He lived and operated a business on the tribe’s
WATER WHEEL CAMP v. LARANCE 8053
land within its reservation for more than twenty years. Cer-
tainly it was reasonable to anticipate that he could be haled
into tribal court. The tribal court properly found personal
jurisdiction over Johnson for the claims related to unpaid rent
due under the lease and for attorney’s fees.
[15] As for damages related to his unlawful trespass, for
more than nineteen months after the lease expired Johnson
continued unauthorized operation of a business on tribal land,
collected rents, and paid absolutely nothing to the tribe. The
tribal court had personal jurisdiction over Johnson for pur-
poses of the trespass claim and damages arising from that vio-
lation. See Calder, 465 U.S. at 790.
[16] Johnson clearly had sufficient minimum contacts with
the CRIT and its tribal land to satisfy considerations of fair-
ness and justice. Int’l Shoe Co., 326 U.S. at 316; see also
Davis, 885 F.2d 515, 520 (9th Cir. 1989). That he acted
unlawfully and wrongfully on behalf of a corporation is no
defense. Calder, 465 U.S. at 790.
V
The judgment of the district court is AFFIRMED as to
Water Wheel Camp Recreational Area, Inc., and REVERSED
with respect to Robert Johnson. The district court’s order
directing the tribal court to vacate its judgment against Robert
Johnson and to cease any litigation concerning Robert John-
son personally is VACATED.10 The case is REMANDED for
entry of judgment upholding the tribal court’s jurisdiction.
Costs are awarded to the tribal parties.
10
The CRIT’s motion for judicial notice also includes documents out-
side the tribal court record and is therefore denied. See supra note 9.