378
Souter, J., concurring
In "distinguish[ing] between those inherent powers retained by the tribe and those divested," id., at 564, the Court relied on a portion of the opinion in United States v. Wheeler, 435 U. S. 313, 326 (1978), from which it quoted at length:
" 'The areas in which . . . implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and non-members of the tribe. . . .
" 'These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by virtue of a tribe's dependent status.' " Montana, supra, at 564.
The emphasis in these passages (supplied by the Montana Court, not by me) underscores the distinction between tribal members and nonmembers, and seems clearly to indicate, without restriction to the criminal law, that the inherent authority of the tribes has been preserved over the former but not the latter. In fact, after quoting Wheeler, the Court invoked Oliphant, supra, which (as already noted) had imposed a per se bar to tribal-court criminal jurisdiction over non-Indians, even with respect to conduct occurring on tribal land. The Montana Court remarked that, "[t]hough Oliphant only determined inherent tribal authority in criminal matters, the principles on which it relied" support a more "general proposition" applicable in civil cases as well, namely, that "the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." 450 U. S., at 565. Accordingly, the Court in Montana repeatedly pressed the member-nonmember distinction, reiter-
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