382
Souter, J., concurring
occurred on tribal land or on land owned by a nonmember individual in fee. It is the membership status of the un-consenting party, not the status of real property, that counts as the primary jurisdictional fact.4
II
Limiting tribal-court civil jurisdiction this way not only applies the animating principle behind our precedents, but fits with historical assumptions about tribal authority and serves sound policy. As for history, Justice Stevens has observed that "[i]n sharp contrast to the tribes' broad powers over their own members, tribal powers over nonmembers have always been narrowly confined." Merrion v. Jicarilla Apache Tribe, 455 U. S. 130, 171 (1982) (dissenting opinion). His point is exemplified by the early treaties with those who became known as the five civilized Tribes, which treaties "specifically granted the right of self-government to the tribes [but] specifically excluded jurisdiction over nonmembers." Id., at 171, n. 21 (citing Treaty with the Cherokees, Art. 5, 7 Stat. 481 (1835), Treaty with the Choctaws and Chickasaws, Art. 7, 11 Stat. 612 (1855), and Treaty with the Creeks and Seminoles, Art. 15, 11 Stat. 703 (1856)). In a similar vein, referring to 19th-century federal statutes setting the jurisdiction of the courts of those five Tribes, this Court said in In re Mayfield, 141 U. S. 107, 116 (1891), that the "general object" of such measures was "to vest in the courts of the [Indian] nation jurisdiction of all controversies between Indians, or where a member of the nation is the only party to the proceeding, and to reserve to the courts
4 Thus, it is not that land status is irrelevant to a proper Montana calculus, only that it is not determinative in the first instance. Land status, for instance, might well have an impact under one (or perhaps both) of the Montana exceptions. See Atkinson Trading Co. v. Shirley, 532 U. S. 645, 659-660 (2001) (Souter, J., concurring); cf. White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 151 (1980) ("[T]here is a significant geographic component to tribal sovereignty").
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