392
Opinion of O'Connor, J.
mish Tribe, 435 U. S. 191 (1978). Montana recognizes that tribes retain sovereign interests in activities that occur on land owned and controlled by the tribe, and provides principles that guide our determination of whether particular activities by nonmembers implicate these sovereign interests to a degree that tribal civil jurisdiction is appropriate.
C
In this case, the Court purports to apply Montana—in keeping with the above line of cases—to determine whether the Tribes, "as an exercise of their inherent sovereignty, . . . can regulate state wardens executing a search warrant for evidence of an off-reservation crime." Ante, at 358. The Court's reasoning suffers from two serious flaws: It gives only passing consideration to the fact that the state officials' activities in this case occurred on land owned and controlled by the Tribes, and it treats as dispositive the fact that the nonmembers in this case are state officials.
Under the first Montana exception, a tribe may exercise regulatory jurisdiction where a nonmember enters into a consensual relationship with the tribe. 450 U. S., at 565. The majority in this case dismisses the applicability of this exception in a footnote, concluding that any consensual relationship between tribes and nonmembers "clearly" must be a "private" consensual relationship "from which the official actions at issue in this case are far removed." Ante, at 359, n. 3.
The majority provides no support for this assertion. The Court's decision in Montana did not and could not have resolved the complete scope of the first exception. We could only apply the first exception to the activities presented in that case, namely, hunting and fishing by nonmembers on land owned in fee simple by nonmembers. 450 U. S., at 557. To be sure, Montana is "an opinion . . . not a statute," and therefore it seems inappropriate to speak of what the Mon-
Page: Index Previous 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 NextLast modified: October 4, 2007