dissenting:
The majority concludes that a tribal court has the inherent authority to exercise civil jurisdiction over tribal nonmembers acting on tribal land within reservation boundaries. I dissent because I believe the majority’s decision is *542inconsistent with over two decades of Supreme Court precedent on the subject of tribal inherent authority. The Court long ago cast aside the notion that a tribe has the inherent authority to exercise jurisdiction over anyone within reservation boundaries. Montana v. United States, 450 U.S. 544, 565, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). Indeed, tribal inherent authority has consistently been confined to those circumstances in which a particular jurisdictional exercise is necessary to protect the tribe’s ability to govern itself. Strate v. A-1 Contractors, 520 U.S. 438, 459, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997).
As the Supreme Court has stated, a tribe has the inherent authority “to punish tribal offenders, ... to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members.” Montana, 450 U.S. at 564, 101 S.Ct. 1245 (citation omitted). With two exceptions, a tribe lacks the inherent authority to exercise civil jurisdiction over non-members acting on “fee land” (land owned in fee by tribal nonmembers within reservation boundaries). Id, at 563-66, 101 S-Ct. 1245 (tribe lacks the inherent authority to ban hunting and fishing by nonmembers on non-Indian property within reservation boundaries), Strate, 520 U.S. at 459, 117 S.Ct. 1404 (tribal court lacks the inherent authority to exercise jurisdiction over tribal nonmember that allegedly committed a tort on fee land).
In its decisions on the subject of tribal inherent authority, the Court has repeatedly emphasized that “[a tribe’s inherent power does not reach] beyond what is necessary to protect tribal self-government or to control internal relations.” Id. (quoting Montana, 450 U.S. at 564, 101 S.Ct. 1245) (quotation marks omitted, alteration in original). In keeping with this principle, the Court has stated that “the inherent sovereign powers of an Indian tribe— those powers a tribe enjoys apart from express, provision by treaty or statute—do not extend to the activities of nonmembers of the tribe.” Id. at 445-46, 117 S.Ct. 1404 (quoting Montana, 450 U.S. at 565, 101 S.Ct. 1245) (quotation marks omitted).
The rule that a tribe may not exercise jurisdiction over a nonmember has two exceptions. First, a tribe may exercise civil jurisdiction over a nonmember if the nonmember has entered into a “consensual relationship! ] with the tribe or its members.” Id. at 446, 117 S.Ct. 1404. Second, a tribe may exercise civil jurisdiction over a nonmember if the nonmember’s ‘-activity ... directly affects the tribe’s political integrity, economic security, health, or welfare.” Id.
The majority’s mistake now becomes clear. The majority establishes a presumption in favor of tribal civil jurisdiction over nonmembers in cases involving tribal land (land owned by the tribe within reservation boundaries). Maj. Op. at 586. This startling statement turns the Court’s longstanding approach to tribal inherent authority on its head.
The majority relies on two cases to accomplish this end. The first is Strate v. A-1 Contractors, 520 U.S. at 454, 117 S.Ct. 1404. Relying on Montana, the Strate opinion reasoned that “tribes retain considerable control over nonmember conduct on tribal land.” Id. While I agree with this statement, I do not agree that it amounts to a general presumption in favor of tribal civil jurisdiction over nonmembers in cases that arise on tribal land. Both the footnote appended to the end of the quotation taken by the majority from Strate, id. n. 8, and the reliance on Montana that precedes the quoted language suggest that the Court was referring to a tribe’s ability to “prohibit nonmembers from hunting or *543fishing on land belonging to the Tribe .." Montana, 450 U.S. at 557, 101 S.Ct. 1245. That a tribe has this inherent authority is well settled. This does not mean that a tribe may exercise civil jurisdiction over nonmembers in all cases that arise on tribal land. Indeed, Strate, after applying Montana’s presumption against a tribe’s inherent authority in a case that arose on fee land, left open the question of whether the Montana rule extended to accident cases that arise on a tribal road within a reservation. Strate, 520 U.S. at 442, 117 S.Ct. 1404.
The majority also relies on Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), a case approaching its half-century birthday. Williams assumed without deciding that tribal courts have criminal and civil jurisdiction over anyone acting within reservation boundaries, not just on tribal land. Id. at 223, 79 S.Ct. 269. Because this assumption was cast aside long ago, it is hardly support for the majority’s presumption theory. See Oliphant, 435 U.S. at 212, 98 S.Ct. 1011; Montana, 450 U.S. at 566-567, 101 S.Ct. 1245; Strate, 520 U.S. at 442, 117 S.Ct. 1404.
Consequently, and contrary to the majority’s position, no current authority from the Supreme Court or from any circuit court supports the view that the Montana rule does not apply to tribal land cases. In fact, the opposite is true. The recent Supreme Court decision of Nevada v. Hicks, 533 U.S. 353, 359-60, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) interpréted Montana to apply to tribal land cases. Specifically, the Supreme Court emphasized that Montana’s caution that “Indian tribes retain inherent sovereignty over non-Indians on their reservations, even on non-Indian fee lands,” 450 U.S. at 565, 101 S.Ct. 1245, clearly implies “that the general rule of Montana applies to both Indian and non-Indian land.” 533 U.S. at 359-60, 121 S.Ct. 2304. Hicks thus clarified that “the existence of tribal ownership is not alone enough to support regulatory jurisdiction over nonmembers.” Id. at 360, 121 S.Ct. 2304.
The majority throws Hicks aside because of the limited nature of Hicks’ holding. While I agree that Hicks is “limited to the question of tribal-court jurisdiction over state officers enforcing state law,” id. at 358, n. 2, 121 S.Ct. 2304, Hicks’ interpretation of Montana should nonetheless guide our decision. The majority’s reliance on Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997), misses the mark. Agostini warns us that “if a precedent of [the Supreme Court] has direet application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls.” Id. at 237, 117 S.Ct. 1997. Yet here, no Supreme Court precedent has direct application, and Hicks did not reject the reasons of its prior cases, but merely interpreted them.
When confronted with a question of first impression, it is our duty to consider how the “Supreme Court would decide the pending ease today.” Vukasovich, Inc. v. Commissioner, 790 F.2d 1409, 1416 (9th Cir.1986). We must examine the thrust of the Supreme Court cases in this area and determine, as best we can, where the Court is leading us. Hicks, though limited, counsels us to extend the Montana rule to tribal land cases. Even before Hicks, the Supreme Court has repeatedly stated that its decisions on the subject of tribal inherent authority rest on the “general proposition” that “the inherent sovereign powers of an Indian tribe ... do not extend to the activities of nonmembers of the tribe.” Strate, 520 U.S. at 445-46, 117 S.Ct. 1404 (citation and quotation marks *544omitted). This is because the concept of inherent authority is meant to protect a tribe’s ability to govern itself and to “control internal relations.” Id. at 459, 117 S.Ct. 1404 (citation and quotation marks omitted). I have no doubt that nonmember acts on tribal land will often implicate these core concerns. Indeed, a tribe’s ability to regulate hunting and fishing on its own land is undoubtedly vital to its economic welfare. Montana, 450 U.S. at 557, 101 S.Ct. 1245. I am equally confident, however, that many nonmember acts on tribal land will be wholly unrelated to a tribe’s ability to govern itself. It would be difficult to argue, for example, that a tort committed by a nonmember against another nonmember on tribal land implicates the core concerns identified by the Court in Strate. Yet, a tribal court would have the inherent authority to hear such a case under the majority’s position.
Unlike the majority’s approach, the Montana rule and its exceptions protect only those jurisdictional exercises that are necessary “to protect tribal self-government or to control internal relations.” Strate, 520 U.S. at 459, 117 S.Ct. 1404 (citation and quotation marks omitted). Thus, if Montana were applied to tribal land cases, a tribal court would not have inherent authority to hear the nonmember tort case described above but it would have inherent authority to exercise civil jurisdiction over a nonmember that either entered into a “consensual relationship with the tribe or its members” or engaged in an “activity that directly affect[ed] the tribe’s political integrity, economic security, health or welfare.” Strate, 520 U.S. at 446, 117 S.Ct. 1404.
Would the Northern Cheyenne Tribe have the inherent authority to assert jurisdiction over this case—a case involving a tort allegedly committed by a nonmember against a member-—if we were to apply the Montana rule? I conclude that the tribal court lacks jurisdiction because neither Montana exception applies. The tort that is the subject matter before us on this appeal did not arise out of a consensual relationship between McDonald and the tribe or a tribe member. Further, the injury that Means sustained did not “imperil the political integrity, the economic security, or the health and welfare of the [tjribe.” Wilson v. Marchington, 127 F.3d 805, 815 (9th Cir.1997) (citation and quotation marks omitted).
I point out that our case deals only with the tribe’s inherent jurisdiction. By concluding there is no inherent jurisdiction in this case, I express no view on whether it wmuld be a better public policy for the Northern Cheyenne Tribe to have civil jurisdiction over a case like this. That is a question better left to Congress. Montana, 450 U.S. at 564, 101 S.Ct. 1245 (a tribe may not “exercise ... tribal power beyond what is necessary to protect tribal self-government or to control internal relations ... without express congressional delegation.”) (citations omitted).
One final matter warrants attention. In a footnote, the majority suggests that its conclusion is supported by the fact that “the tribal court in this case is merely exercising civil jurisdiction over a defendant whom it could prosecute criminally.” This footnote suggests that tribal civil jurisdiction may be analyzed by an Indian/non-Indian distinction, rather than the member/nonmember distinction. I separate myself from this dicta, and mention that this, too, is an open question.
The majority cites United States v. Enas, 255 F.3d 662 (9th Cir.2001) (on banc), which held that tribes retain inherent sovereignty to exercise criminal jurisdiction over Indians, irrespective of whether the Indian defendant is a member of the tribe. Yet Enas did not determine wheth*545er tribes retain inherent sovereignty to exercise civil jurisdiction over non-member Indians. Though Congress has restored tribal criminal jurisdiction over nonmember Indians in 25 U.S.C. § 1301(2), it has not delegated this authority in civil disputes.
Neither the Supreme Court nor the Ninth Circuit has answered the question of tribal civil jurisdiction over non-member Indians. However, the Supreme Court hints that even if the defendant is an Indian, his status as a nonmember governs the court’s analysis. Hicks, 533 U.S. at 377, n. 2, 121 S.Ct. 2304 (Souter, J., concurring) (“the relevant distinction, as we implicitly acknowledged in Strate, is between members and nonmembers of the tribe”); Strate, 520 U.S. at 445-46, 117 S.Ct. 1404 (stating that a tribe’s inherent sovereign powers “do not extend to the activities of nonmembers,” and on the same page recognizing that some tribal nonmembers are also Indians) (internal citation omitted); Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 161, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980) (holding that state’s taxing power over nonmember Indians is equivalent to its taxing power over non-Indians because “nonmembers are not constituents of the governing Tribe, For most practical purposes those Indians stand on the same footing as non-Indians resident on the reservation. There is no evidence that nonmembers have a say in tribal affairs or significantly share in tribal disbursements.”). Because the majority’s footnote is dicta, and merely suggests (but does not decide) that civil jurisdiction may be analyzed under the Indian/non-lndian distinction, I state no opinion on the matter here.