Cite as: 533 U. S. 353 (2001)
Souter, J., concurring
ating at one point, for example, that while "the Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members," 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 without express congressional delegation." Id., at 564; cf. Oliphant v. Schlie, 544 F. 2d 1007, 1015 (CA9 1976) (Kennedy, J., dissenting) ("The concept of sovereignty applicable to Indian tribes need not include the power to prosecute nonmembers. This power, unlike the ability to maintain law and order on the reservation and to exclude nondesireable nonmembers, is not essential to the tribe's identity or its self-governing status"), rev'd sub nom. Oliphant v. Suquamish Tribe, 435 U. S. 191 (1978).
To Montana's "general proposition" confining the subjects of tribal jurisdiction to tribal members, the Court appended two exceptions that could support tribal jurisdiction in some civil matters. First, 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." And second, a tribe may regulate nonmember conduct that "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 565-566.3 But unless one of these exceptions applies, the "general
3 Thus, it is true that tribal courts' "civil subject-matter jurisdiction over non-Indians . . . is not automatically foreclosed, as an extension of Oliphant would require." National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845, 855 (1985). "Montana did not extend the full Oliphant rationale to the civil jurisdictional question—which would have completely prohibited civil jurisdiction over nonmembers." A-1 Contractors v. Strate, 76 F. 3d 930, 937 (CA8 1996). Instead, "the [Montana] Court found that the tribe retained some civil jurisdiction over non-members, which the Court went on to describe in the Montana exceptions." Ibid.
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