concurring in judgment:
I concur in the judgment.
King Mountain Tobacco Company, Inc., and Yakama Tribe members Delbert Wheeler and Richard “Kip” Ramsey (collectively, “tribal member defendants” or “defendants”) allegedly infringed federal and state trademark rights of Philip Morris by selling cigarettes with packaging and designs that resemble those of Philip Morris’s flagship Marlboro brand. Philip Morris sued the defendants in federal district court for trademark infringement. The defendants responded by suing Philip Morris in tribal court, seeking a declaratory judgment that their packaging, designs, and sales do not infringe. The tribal member defendants are actual defendants in the district court coercive suit and de facto defendants in the tribal court declaratory judgment suit. See Shelly Oil v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950).
The district court appears to have thought that sales both on and off the Yakama Reservation are at issue in this case. The district court noted in its order granting the stay that “Defendants began selling King Mountain cigarettes to smoke shops on the Yakama Reservation in January 2006” and later began to make off-reservation sales. The district court concluded that because Philip Morris’s federal court suit made “claims against tribal members whose conduct occurred on reservation lands ... there exists a colorable question of the existence of tribal court jurisdiction in this case over Philip Morris.”
The panel majority makes clear, however, that sales by defendants of King Mountain cigarettes on the Yakama Reservation are not at issue. It writes, “Philip Morris’s complaint does not allege claims based on King Mountain’s sales of its cigarettes on the Yakama Reservation, although there are passing references to such sales in later pleadings.” Maj. op. at 1110 n. 3. Because the only sales at issue took place off the Yakama Reservation, the question in this appeal is straightforward and quite narrow: Does the Yakama Tribal Court have colorable jurisdiction to decide whether off-reservation sales by tribal member defendants infringe the Marlboro trademark? The panel majority answers, correctly, that it does not.
The panel majority could have written a simple opinion relying on Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). There the Supreme Court wrote that
Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members. But exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.
450 U.S. at 564, 101 S.Ct. 1245 (internal citation omitted). The Court then noted two exceptions to the limitation on tribal power and tribal court jurisdiction. First, even on reservation land owned in fee simple by non-Indians a “tribe may regulate ... the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” Id. at 565, 101 S.Ct. 1245(ci-tations omitted). Second, tribal jurisdiction extends to “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.” Id. at 566, 101 S.Ct. 1245 (citations omitted).
*1112Under Montana, the tribal court clearly lacks jurisdiction over this suit, which arose out of off-reservation conduct by tribal members that allegedly violated non-tribal law and injured a non-tribal member. The first Montana exception does not apply because the allegedly infringing conduct took place off the reservation, and because Philip Morris is not in a consensual relationship with the defendants. The second exception does not apply because the conduct took place off the reservation, and because Philip Morris’s legal claims do not threaten the “political integrity, the economic security, or the health or welfare of the tribe.”
Rather than deciding this case based simply on Montana, the panel majority engages in extended dicta in an attempt to undermine the longstanding presumption of Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). In Williams, a non-member store owner brought suit against Navajo tribal members for goods bought on credit at a store located on the Navajo Reservation. The Court upheld tribal court jurisdiction. Williams has long stood for the proposition that a tribal court has jurisdiction over a civil suit arising out of on-reservation conduct brought by a non-member plaintiff against a member defendant. See, e.g., Cohen’s Handbook of Federal Indian Law 608 (2005) (discussing Williams and stating that “[sjtate courts lack jurisdiction to hear actions against Indians arising within Indian country”).
In its dicta, the panel majority seeks to undercut the Williams presumption concerning party alignment — that a tribal court has jurisdiction over suits between members and non-members arising out of on-reservation conduct when the non-member is a plaintiff and the member is a defendant, though not when the member is a plaintiff and the nonmember is a defendant. For example, the panel majority writes, “While it is true that the Supreme Court has never applied Montana to a case involving a tribal defendant, Montana itself, as well as subsequent Supreme Court and Ninth Circuit precedents, supports our conclusion that the Montana framework is the starting point for suits involving nonmembers generally, whether as 'plaintiffs or defendants.” Maj. op. at 1105 (emphasis added). It writes further, “[I]n cases involving nonmembers, the inquiry focuses primarily on whether a nonmember is being haled into tribal court against his will, not whether the party is the plaintiff or defendant.” Id. at 1105. And it writes, “Although the Supreme Court has never had occasion to consider the Montana exceptions vis — # 2A# —vis a tribal defendant, that fact seems more indicative of the unusual procedural posture of this case than the scope of Montana’s rule.” Id. at 1105-06. Finally, it writes, “Tellingly, the only case the Supreme Court has encountered with a similar procedural posture to this one was Williams, the very case it cited as exemplifying Montana’s exceptions.” Id. at 1105-06.
In minimizing the importance of party alignment, the panel majority ignores our recent en banc analysis in Smith v. Salish Kootenai College, 434 F.3d 1127 (9th Cir.2006) (en banc). The three-judge panel in Smith had held that the tribal court did not have jurisdiction over a civil suit arising out of a rollover accident on the reservation in which the plaintiff was a nonmember and the defendant was a member. The panel had concluded that the Montana framework applies “whenever there is a non-member party.” Smith v. Salish Kootenai College, 378 F.3d 1048, 1052 (9th Cir.2004). The panel wrote that the “Supreme Court has not distinguished between non-member plaintiffs and nonmember defendants.” Id. at n.5. Based on this analysis, the three-judge panel con-*1113eluded that the tribal court did not have jurisdiction.
Our en banc panel reversed. The en banc majority explicitly disagreed with the three-judge panel’s conclusion that the alignment of parties is irrelevant to the jurisdictional analysis:
The Court’s recent cases, and our own experience with the Montana exceptions, demonstrate that there are two facts courts look to when considering a tribal court’s civil jurisdiction over a case in which a non-member is a party. First, and most important, is the party status of the nonmember, that is, whether the nonmember party is a plaintiff or a defendant. ... The Court has repeatedly demonstrated its concern that tribal courts not require “defendants who are not tribal members” to “defend [themselves against ordinary claims] in an unfamiliar court.” Second, the Court has placed some store in whether or not the events giving rise to the cause of action occurred within the reservation. Within the reservation, “[t]o be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians ... even on non-Indian fee lands.... ”
The interaction of these factors — the status of the parties and the connection between the cause of action and Indian lands — is complex. Nevertheless, the cases provide some guidance for our discussion, and we can summarize them as follows. First, where the nonmembers are the plaintiffs, and the claims arise out of commercial activities within the reservation, the tribal courts may exercise civil jurisdiction. Second, where the nonmembers are defendants, the Court has thus far held that the tribes lack jurisdiction, irrespective of whether the claims arose on Indian lands.
434 F.3d at 1131-32(first emphasis added; later emphases in original; brackets in original; citations omitted).
Judge Gould, who had written the panel opinion in Smith, dissented from the en banc opinion. He wrote:
The plain language of Montana indicates that its framework applies to legal actions involving “non-members” without limitation.... Moreover, in illustrating the application of the Montana framework, the Court has used Williams to illustrate examples of the Montana framework, indicating that nonmember plaintiffs, as well as nonmember defendants, fall within that doctrine.
Id. at 1141-42 (Gould, J., dissenting). The other two members of the three-judge panel in Smith — who had joined Judge Gould in concluding that party alignment is unimportant in determining tribal court jurisdiction — were Judges McKeown and Brun-etti. Judges McKeown and Brunetti, who comprise the panel majority in the case now before us, were not members of the en banc panel in Smith.
As in the three-judge panel decision in Smith, the panel majority in this case minimizes the importance of party alignment. The panel majority justifies its conclusion that party alignment is unimportant in two ways. First, it relies on two string citations of Williams in Montana. Maj. op. at 1105-06. But those citations in no way suggested that Montana was intended to undermine the Williams presumption in favor of jurisdiction when a tribal member is a defendant. Moreover, Montana was decided long before our en banc decision in Smith; indeed, the meaning of Montana and Williams was central to our analysis in that case. Thus, string citations of Williams in Montana can hardly be used to escape our emphasis in Smith on the importance of party alignment.
*1114Second, the panel majority relies on the Supreme Court’s recent decision in Plains Commerce Bank v. Long Family Land & Cattle Co., — U.S.-, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008). Maj. op. at 1105. But in that case the Court held that a tribal court did not have jurisdiction over a suit brought by member plaintiffs against a nonmember defendant. Because a nonmember rather than a member was the defendant, the Williams presumption in favor of tribal court jurisdiction was not at issue. Moreover, the Court cited Williams with approval, giving no hint that it intended to cut back or otherwise limit the Williams presumption. 128 S.Ct. at 2721.
Much of the panel majority’s discussion in this case is dicta, and much of that dicta is contrary to Supreme Court case law and to our en banc opinion in Smith. Therefore, while I concur in the judgment, I respectfully decline to join the panel majority’s opinion.