United States: A Guide to Indian Law in Washington

2nd Annual Washington State Tribal/County Criminal Justice Summit 
Last Updated: July 13 2004
Article by Gabriel S. Galanda

Over the past decade, the 29 federally-recognized Indian tribes in the State of Washington have become major players in the State’s economy. Tribes are aggressively creating and operating new businesses in the areas of real estate development, banking and finance, media, telecommunications, wholesale and retail trade, tourism, and gaming. Consider these facts: 

  • Washington tribes occupy more than 3.2 million acres of reservation lands. 
  • Washington tribes currently employ nearly 15,000 Indian and non-Indian employees. By comparison, Microsoft employs 20,000 Washingtonians. 
  • Washington tribes paid over $5.3 million dollars to the State in employment taxes, in 1997 alone. 
  • By 2002, Washington’s twenty-one gaming tribes generated $648 million in revenue, up from $620 million in 2001. 2

 A corollary to the dramatic increase in tribal economic development is the increased interaction of tribes and non-Indian citizens who seek business, employment, or recreation on Indian reservations. In turn, legal matters between Indian tribes and non-Indians continue to increase. 

As Indian law issues now intersect both litigation and transactional practices, and virtually every niche of law, 3 every attorney in Washington must be cognizant of general Indian law principles and stand prepared to answer common Indian law questions. Likewise, all tribal and county decisionmakers should understand the contours of Indian law, particularly issues of civil and criminal jurisdiction. For that reason, I share with you, participants in the 2nd Annual Washington State Tribal/County Criminal Justice Summit, some legal principles that govern relations between Indians and non-Indians in Washington, in hopes that you and counsel for your tribe or county will continue the dialogue on such critical issues.

Question: "What is Tribal Sovereignty?"

Answer: Indian tribes are "distinct, independent political communities, retaining their original natural rights" in matters of local self- government.4 Although no longer "possessed of the full attributes of sovereignty," tribes remain a "separate people, with the power of regulating their internal and social relations."5 In short, Indians possess "the right . . . to make their own laws and be ruled by them."6 

Much like the State government, tribal governments are elaborate entities, consisting of executive, legislative, and judicial branches. The office of the tribal chairman (like that of the state governor) and the tribal council (the state legislature) operate the tribe under a tribal constitution and code of laws.

Question: "Are Tribal Courts Different than State and Federal Courts?"

Answer: Yes. Although Washington’s 25 tribal courts are modeled after Anglo-American courts,7 Indian courts are significantly different.8 Tribal judges, who are often tribal members, are not necessarily lawyers. 

Tribal courts operate under the tribes’ written and unwritten code of laws. Most tribal codes contain civil rules of procedure specific to tribal court, as well as tribal statutes and regulations. Such laws outline the powers of the tribal court and may set forth limitations on tribal court jurisdiction. 9 

A tribe’s code also includes customary and traditional practices, which are based on oral history and may not be codified in tribal statutes and regulations.10 Tribal judges consider testimony regarding tribal custom and tradition from tribal elders and historians, who need not base their opinions on documentary evidence as may be required by state and federal evidentiary rules. 

Tribal courts generally follow their own precedent and give significant deference to the decisions of other Indian courts. However, because there is no official tribal court reporter 11 and because not all tribal courts keep previous decisions on file, finding such caselaw can be difficult.12 The opinions of federal and state courts are persuasive authority, but tribal judges are not bound by such precedents. Nevertheless, Washington’s state courts extend full faith and credit to valid tribal court orders,13 and federal courts grant comity to tribal court rulings.14 

Before handling a matter in tribal court, counsel must appreciate the character of tribal courts, pay careful attention to tribal laws and statutes, and understand the fundamental differences between tribal courts and state and federal courts. 

Question: "Can Tribes Be Sued for Damages or Equitable Relief?" 

Answer: Probably not. Like other sovereign governmental entities, tribes enjoy common law sovereign immunity and cannot be sued:15 An Indian tribe is subject to suit only where Congress has "unequivocally" authorized the suit or the tribe has "clearly" waived its immunity 16 (for examples of waiver, see discussion below regarding tribal insurance). There is a strong presumption against waiver of tribal sovereign immunity.17 

The doctrine of sovereign immunity shields tribes from suit for monetary damages and requests for declaratory or injunctive relief. 18 However, tribal government officials who act beyond the scope of their authority are not immune from claims for damages.19 

Tribes are also immune from the enforcement of a subpoena, e.g., to compel production of documents.20 Last year, the Ninth Circuit Court of Appeals, in Bishop Paiute Tribe v. County of Inyo, 275 F.3d 893 (2002), certiorari granted, 123 S. Ct. 618, reaffirmed that tribes are immune from subpoena enforcement, in barring the execution of a warrant to obtain confidential payroll records for casino employees. The Supreme Court heard argument on Bishop Paiute in early 2003 and, though expected by many tribal advocates to reverse the Ninth Circuit, the Court remanded the case for reconsideration of other issues. As such, Washington tribes remain immune from subpoena enforcement and county law enforcement cannot use a superior court’s subpoena power as a means to obtain casino records. 

Tribal immunity generally extends to agencies of the tribe 21 such as tribal casinos, resorts, and other business enterprises. As many Washington citizens flock to tribal casinos, slip-and-falls and other tort claims arising on tribal reservations have increased. Nevertheless, courts routinely dismiss personal injury suits against tribes for lack of jurisdiction. 22 

Therefore, in considering whether to sue a tribe on behalf of an injured party, counsel must closely evaluate issues of sovereign immunity and waiver. Unless a plaintiff can show clear evidence of tribal waiver or unequivocal Congressional abrogation, a judge will simply dismiss any suit filed against a tribe for damages for lack of subject matter jurisdiction. 

Question: "Can Tribes Be Sued to Enforce a Contract?" 

Answer: Probably not. Tribes retain immunity from suit when conducting business transactions both on and off the reservation. 23 Generally, a tribe can only be sued in contract if the agreement explicitly waived tribal immunity;24 a waiver will not be implied.25 Nonetheless, the U.S. Supreme Court recently held that a contractual agreement to arbitrate disputes constitutes a clear waiver of immunity.26 

Increasingly, tribes will agree to limited waivers of immunity. Some tribes set up subordinate entities whose assets, the tribes acknowledge, are not immune from suit, levy, or execution (although assets not held by the entity remain protected by immunity).27 

So, if asked to sue a tribe for breach of contract, counsel should first consider the entity with which your client contracted – i.e., a tribe, which is likely immune from suit; or a subordinate entity, for which the tribe may have waived its immunity. If asked to create a contract with a tribe, counsel must explain to his or her client that there may not be any remedy available in the event of a contractual breach. Counsel should then negotiate with the tribe to reach a meeting of the minds with respect to the immunity issue. Again, some tribes will agree to a limited waiver. 

Question: "Can Tribes Be Sued for Employment Discrimination?" 

Answer: Probably not. Both Title VII 28 and the Americans with Disabilities Act (ADA)29 expressly exclude Indian tribes.30 Similarly, the Ninth Circuit has held that tribes are immune from suit under the Age Discrimination in Employment Act (ADEA).31 Tribes are also immune from suit under 42 U.S.C. 1983. 32 Likewise, state discrimination laws do not apply to tribal employers.33

Tribally-owned entities are generally not subject to state and federal discrimination laws either.34 Tribal officials are also immune from suit arising from alleged discriminatory behavior, so long as they acted within the scope of their authority. 35 In short, any employment suit against a tribe or its officials based upon federal or state discrimination law will likely be dismissed for lack of subject matter jurisdiction. 

Washington’s tribes have become one of the State’s largest employers. As a result, no n-Indians’ employment records and documents concerning tribal employment practices are increasingly becoming the focus of discovery, even in litigation against non-tribal entities. If the employee is a party, his or her employment records are discoverable if they are in the employee’s custody or control. However, under the doctrine of sovereign immunity, a court cannot subpoena a tribe to produce the employee’s records.36 By the same token, a court cannot compel a tribe – or Interior or BIA 37 – to provide documents about the tribe’s employment practices, i.e., matters "internal" to the tribe. 

Question: "Can Tribes Be Sued for Violation of Labor and Employment Laws?" 

Answer: Maybe. The circuits are split regarding the application of federal regulatory employment laws to tribal employers. The Ninth Circuit has applied the Occupational Safety and Health Act (OSHA)38 and the Employee Retirement Income Security Act (ERISA)39 to tribes, reasoning that such statutes of general applicability govern tribal employment activity because Indian tribes are not explicitly exempted from the laws.40 The Seventh and Second Circuits have adopted the Ninth Circuit’s rationale and also applied OSHA and ERISA to tribes,41 and the Seventh Circuit leans toward application of Fair Labor Standards Act (FLSA)42 to tribal employers.43 

Conversely, the Tenth and Eight Circuits have refused to apply to tribes such laws as OSHA, ERISA, FLSA, and the National Labor Relations Act (NLRA),44 because doing so would encroach upon well-established principles of tribal sovereignty and tribal self- governance.45 While the Ninth Circuit’s rulings that apply federal employment statutes of general applicability to tribes are binding in Washington, and the decisions of the Seventh and Second Circuits serve as persuasive precedent, state labor laws and workers’ compensation statutes remain inapplicable to tribal businesses.46 

Question: "Where Should a Claim Be Filed that Arises on the Reservation?" 

Answer: It depends. Subject matter jurisdiction of tribal, state or federal courts depends largely upon (1) whether the defendant is an Indian or non-Indian person or entity; 47 and (2) whether the act occurred on Indian fee or allotted lands, non-Indian-owned reservation lands, or even a state right-of-way on the reservation. 48 These two complex issues should be the first area of inquiry for any question regarding jurisdiction over a dispute arising on a reservation. 

Tribal courts have jurisdiction over a suit by any party – Indian or non-Indian – against an Indian person, a tribe, or tribal entity for a claim arising on the reservation. 49 Jurisdiction over lawsuits between non-Indians arising on the reservation lies in state court.50 So, assuming the plaintiff is prepared to show clear or unequivocal waiver of tribal immunity, counsel should file any tort claims arising on Indian lands or in tribal casinos, in tribal court. 

Specifically, state courts have jurisdiction over any dispute arising from an auto accident occurring on a state right-of-way through the reservation, including a dispute between non-Indian citizens,51 and a suit by an Indian against a non-Indian. 52 As such, common claims that arise on Washington State highways running through reservations should be brought in state court. 

Question: "Can Non-Indians Be Sued in Tribal Court?" 

Answer: It depends. Generally, a tribal court can only assert jurisdiction over a claim against a non-Indian person or entity when "necessary to protect tribal self- government or to control internal relations."53 Essentia lly, a tribal court only has jurisdiction over the reservation activities of non-Indian parties "who enter consensual relationships with the tribe . . . through commercial dealing, contract, leases, or other arrangements."54 As such, a tribal court likely possesses jurisdiction over any litigation arising from a contract with a tribe. 

State courts may exercise jurisdiction over a non-Indian person or entity for a claim arising on the reservation. 55 Federal courts may assert jurisdiction over a claim against a non-Indian party based upon reservation activities if there is federal question jurisdiction, 56 or diversity jurisdiction. 57 Thus, absent a contractual relationship with the tribe, non-Indian parties can only be sued in state or federal court. 

Question: "Can Non-Indians Challenge the Assertion of Tribal Court Jurisdiction?" 

Answer: Yes. If sued in tribal court, non-Indian persons or entities can challenge the tribal court’s assertion of jurisdiction in federal court. However, federal courts typically stay their proceedings to allow the tribal court to determine its own jurisdiction. 58 Thus, before challenging a tribal court’s assertion of jurisdiction in federal court, counsel must first exhaust tribal remedies.59 

In any case, a tribal court first decides jurisdiction over non-Indian parties. If the tribal court rules that it has jurisdiction, it proceeds with the case. If the federal court later agrees that the tribal court had jurisdiction, it will not relitigate the case.60 Therefore, counsel sho uld thoroughly present the merits of his or her client’s case to the tribal judge, as there may not be a subsequent opportunity to do so in federal court. In doing so, counsel should be ever mindful of the unique aspects of tribal courts described above. 

Question: "Who Can Be Prosecuted in Tribal Court?" 

Answer: No. Tribal courts do not have general criminal jurisdiction over non-Indian crimes occurring on the reservation. 61 However, tribal courts do retain the power to exclude any unwanted person from their reservations.62 

Jurisdiction for non-Indian criminal offenses on the reservation lies with state or federal courts:63 Crimes committed on the reservation by non-Indians against non-Indians are subject to state jurisdiction. 64 Also, although unsupported by federal law, Washington state courts typically try non-Indians for traffic and other minor offenses occurring on the reservation. Federal courts have jurisdiction under the General Crimes Act 65 over reservation crimes committed by non-Indians against Indians or Indian "interests" (e.g., property).66 

The U.S. Supreme Court decision holding that tribes have no criminal jurisdiction over non-Indians arose in Western Washington. 67 As a result, Washington’s tribes are very aware of that bright-line rule, and rarely, if ever, will a non-Indian face tribal court prosecution in for reservation offenses. 

Generally, in the absence of federal statutes that limit tribal jurisdiction, 68 tribal criminal jurisdiction over Indians in Indian Country is complete, inherent and exclusive.69 Under Public Law 280 and subsequent state legislation, the State of Washington has assumed criminal jurisdiction over Indians on Indian lands in eight enumerated areas.70 Some Washington tribes, however, have retroceded from the state’s jurisdiction and restored criminal jurisdiction over Indians on their lands to the tribe’s courts. 

In 1990, the U.S. Supreme Court ruled in Duro v. Reina, 71 that state or federal courts also had jurisdiction over on-reservation crimes of Indians who are not members of the tribal community in which the crime occurred. However, Congress quickly overrode Duro, and affirmed the "inherent power of Indian tribes . . . to exercise criminal jurisdiction over all Indians."72 The Ninth Circuit upheld the statute – commonly known as "the Duro fix" – in an opinion issued in 2001. 73 Thus, absent federal statutes that limit tribal jurisdiction, 74 Washington tribal courts retain jurisdiction over crimes committed by any Indian (member or nonmember) on the reservation. 


Washington State is witnessing firsthand both the tremendous rise in tribal economic development, and an array of legal disputes between Indians and non-Indians. Indeed, Indian law principles impact litigation and transactional practices, and intersect general tort, contract, employment, and criminal law. Further, Indian law issues implicate tribal, state and federal court practice and challenge an advocate’s understandings of procedural and jurisdictional principles. For these reasons, it is vital that you recognize and understand the Indian law issues that you and/or your constituents will inevitably encounter in Washington. 

1 See Tiller, Veronica and Robert E. Chase, Economic Contributions of Indian Tribes to the State of Washington, http://www.goia.wa.gov/econdev/index.html. 

2 See Alan Meister, "Indian Gaming: Economic Outlook," Native American Casino, October 2003.

3 See generally Matt Fleischer, No Reservations About Indian Law, The National Law Journal, May 8, 2000 ("Like corporations, tribes now need advice on employment law, trademarks, Federal Communications Commission regulations, bond financing, environmental standards and taxation.")

4 Worcester v. Georgia, 31 U.S. 515, 559 (1832).

5 U.S. v. Kagama, 118 U.S. 375, 381-82 (1886). 

6 Williams v. Lee, 358 U.S. 217, 220 (1959).

7 See Michael Taylor, Modern Practice in the Indian Courts, 10 Univ. Puget Sound Law Rev. 231 (1989); see generally DAVID H. GETCHES ET AL., CASES AND MATERIALS ON FEDERAL INDIAN LAW (4th ed. 1998), at 390.

8 As the U.S. Supreme Court recently explained: 

Tribal courts . . . differ from other American courts (and often from one another) in their structure, in the substantive law they apply, and in the independence of their judges. Although some modern tribal courts "mirror American courts" and "are guided by written codes, rules, procedures, and guidelines," tribal law is still frequently unwritten, being based instead "on the values, mores, and norms of a tribe and expressed in its customs, traditions, and practices," and is often "handed down orally or by example from one generation to another." The resulting law applicable in tribal courts is a complex "mix of tribal codes and federal, state, and traditional law," which would be unusually difficult for an outsider to sort out. 

Nevada v. Hicks, 533 U.S. 353 (2001) (citations omitted); see also Taylor, supra note 7; GETCHES, supra note 11, at pp. 413-418 (discussing unique nature of tribal courts). 

9 See Taylor, supra note 7, at 238-241.

10 See Id.

11 The Indian Law Reporter (Indian L. Rptr.) has published selected tribal court opinions since 1983. See Id. 

12 See Id.

13 See, e.g., In re Buehl, 87 Wn.2d 649 (Wash. 1976); Jim v. CIT Financial Services Corp., 533 P.2d 751 (N.M. 1975); Sheppard v. Sheppard, 655 P.2d 895 (Idaho 1982), cited in GETCHES, supra note 7, at 656-58. 

14 See, e.g., Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997); In Matter of Marriage of Red Fox, 542 P.2d 918 (1975); Mexican v. Circle Bear, 370 N.W.2d 737 (S.D.1985); Leon v. Numkena, 689 P.2d 566 (Ariz.Ct.App.1984); Wippert v. Blackfeet Tribe, 654 P.2d 512 (Mont. 1982); Wakefield v. Little Light, 347 A.2d 228 (Md.1975); In Re Lynch’s Estate, 377 P.2d 199 (Ariz. 1962), cited in GETCHES, supra note 7, at 656-58. Comity "is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws." Begay v. Miller, 222 P.2d 624 (Ariz. 1950), quoting Hilton v. Guyot, 159 U.S. 113 (1895).

15 Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). 

16 Id.; Kiowa Tribe v. Manufacturing Technologies, Inc., 523 U.S. 757 (1998) ("As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity."); see also Oklahoma Tax Comm’n v. Citizen Band Potawatomi Tribe, 498 U.S. 505 (1991) ("Suits against Indian tribes are barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation.").

17 Demontiney v. U.S., 255 F.3d 801 (9th Cir. 2001), citing Pan Am. Co. v. Sycuan Band of Mission Indians, 884 F.2d 416 (9th Cir. 1989). 

18 Santa Clara Pueblo, supra note 15; Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269 (9th Cir. 1991); Hardin v. White Mountain Apache Tribe, 779 F.2d 476 (9th Cir. 1985).

19 Imperial Granite Co., supra note 18. Then again, tribal officials who do act within the scope of their authority are protected from suit under the tribe’s immunity. See Hardin, supra note 18.

20 United States v. James, 980 F.2d 1314, 1319-20 (9th Cir. 1992). 

21 Weeks Construction, Inc. v. Oglala Sioux Housing Authority, 797 F.2d 668 (8th Cir. 1986). Cf. Wilson v. Turtle Mountain Band of Chippewa Indians, 459 F. Supp. 366, 368-69 (D.N.D. 1978). 

22 See Barker-Hatch v. Viejas Group, 83 F. Supp. 2d 1155 (S.D.Cal 2000); Gavle v. Little Six, Inc., 524 N.W.2d 280 (Minn.App.1995).

23 Kiowa, supra note 19; In re Greene, 980 F.2d 590 (9th Cir. 1992). 

24 Kiowa, supra note 19; Weeks, supra note 27.

25 Maynard v. Narragansett Indian Tribe, 984 F.2d 14 (1st Cir. 1994).

26 C&L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Oklahoma, 532 U.S. 411 (2001). 

27 See generally GETCHES, supra note 11, at 383-88.

28 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(b).

29 42 U.S.C. §§ 12101-12213. 

30 Pink v. Modoc Indian Health Project, 157 F.3d 1185 (9th Cir. 1998); Dille v. Council of Energy Resource Tribes, 801 F.2d 373 (10th Cir. 1986); but see Florida Paraplegic Assoc., Inc. v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126 (11th Cir. 1999) (held public accommodation portion of ADA applicable to tribes but held that tribe was immu ne from suit).

31 29 U.S.C. § 621-34; EEOC v. Karuk Tribe Housing Authority, 260 F.3d 1071 (9th Cir. 2001); but see EEOC v. Cherokee Nation, 871 F.2d 937 (10th Cir. 1989) ("ADEA is not applicable because its enforcement would directly interfere with the Cherokee Nation’s treaty-protected right of self-government"); EEOC v. Fond du Lac Heavy Equip. & Constr. Co., Inc., 986 F.2d 246 (8th Cir. 1993).

32 See Corrigan v. Bargala, 1999 U.S. App. Lexis 33671, 1999 WL 1217935 (9th Cir. 1999); Dry v. City of Durant, 242 F.3d 388 (10th Cir. 2000).

33 See, e.g., A.R.S. § 41-1464 (exempts Arizona’s tribes from state employment discrimination laws); see also New Mexico v. Mescalero Apache Tribe, 463 U.S. 324 (1983) ("State jurisdiction is preempted by the operation of federal law if it interferes with or is incompatible with federal and tribal interests reflected in the federal law, unless the state interests at stake are sufficient to justify the assertion of state authority."); FELIX S. COHEN, COHEN’S HANDBOOK OF FEDERAL INDIAN LAW (Strickland 1982), at 259 (state civil laws are "generally not applicable to Indian affairs within the territory of an Indian tribe, absent the consent of Congress").

34 See Hagen v. Sisseton-Wahpeton Community College, 205 F.3d 1040 (8th Cir. 2000).

35 See Hardin, supra note 18. 

36 See James, supra note 20.

37 See Klamath, supra note 22.

38 29 U.S.C. § 651 et seq. 

39 29 U.S.C. § 1001 et seq.

40 Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985) (right of self-government is too broad to defeat applicability of OSHA); DOL v. OSHA Review Comm’n, 935 F.2d 182 (9th Cir. 1991) (applying OSHA); Labor Industry Pension Fund v. Warm Springs Forest Products Industries, 939 F.2d 683 (9th Cir. 1991) (applying ERISA).

41 Smart v. State Farm Ins., 868 F.2d 929 (7th Cir. 1989) (the "argument that ERISA will interfere with the tribe's right of self-government is overbroad"); Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2d. Cir. 1996) (following Ninth and 7th Circuits to apply OSHA).

42 29 U.S.C. § 201 et seq. 

43 Reich v. Great Lakes Indian Fish and Wildlife Commission, 4 F.3d 490 (7th Cir. 1993).

44 29 U.S.C. § 158(a)(3) et seq. 

45 Donovan v. Navajo Forest Products, Indus., 692 F.2d 709 (10th Cir. 1982) (OSHA held inapplicable to tribe in part because enforcement "would dilute the principles of tribal sovereignty and self-government recognized in the treaty:); see also EEOC v. v. Fond du Lac, supra note 34.

46 See Begay v. Kerr McGee Corp, 682 F.2d 1311 (9th Cir. 1982); Tibbets v. Leech Lake Reservation Business Comm., 397 N.W.2d 883 (Minn. 1986) (held Minnesota worker’ compensation law inapplicable to tribal employer); see generally Mescalero Apache, COHEN, supra note 36.

47 To make the issue of jurisdiction even more complicated, courts consider whether the party is a tribal "member" and "nonmember." In short, "nonmembers" are non-Indian persons or entities, or Indian persons who are not enrolled as a member of the tribe which is asserting jurisdiction. See U.S. v. Wheeler, 435 U.S. 313 (1978); Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980); Duro v. Reina, 495 U.S. 676 (1990); Strate v. A-1 Contractors, 520 U.S. 438 (1997); Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997). In order to keep this analysis more simp le, the terms "Indian" and "non-Indian" will be used.

48 See, e.g., Montana v. U.S., 450 U.S. 544 (1981); Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U.S. 408 (1989) South Dakota v. Bourland, 508 U.S. 679 (1993); Strate, supra note 54. 

49 Williams v. Lee, 358 U.S. 217 (1958).

50 See Strate, supra note 47.

51 Id. 

52 Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997).

53 Montana, supra note 48.

54 Id; FMC v. Shoshone-Bancock Tribes, 905 F.2d 1311 (9th Cir. 1990). 

55 Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, 467 U.S. 138 (1984).

56 28 U.S.C. §§ 1331, 1343.

57 28 U.SC. § 1332. 

58 See Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987); National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985).

59 Id; Stock West Corp. v. Taylor, 964 F.2d 912 (9th Cir. 1992). 

60 LaPlante, supra note 58.

61 Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978).

62 Hardin v. White Mountain Apache Tribe, 779 F.2d 476 (9th Cir. 1985). 

63 State v. Schmuck, 121 Wn.2d 373 (Wash. 1993).

64 New York ex rel Ray v. Martin, 326 U.S. 496 (1946); Solem v. Bartlett, 465 U.S. 463 (1984).

65 18 U.S.C. § 1152. 

66 Williams v. U.S., 327 U.S. 711 (1946).

67 In Oliphant, supra note 64, the U.S. Supreme Court held that the Suquamish tribal court – which occupies land on the Kitsap Peninsula in Western Washington – did not have jurisdiction to prosecute a non-Indian who assaulted a tribal police officer and resisted arrest.

68 See, e.g., the Major Crimes Act, 18 U.S.C.A. §§ 1153, 3242.

69 Ex parte Crow Dog, 109 U.S. 556 (1883). 

70 18 U.S.C. § 1162(a); RCW 37.12.010; McCrea v. Denison, 76 Wn. App. 395, 398 n. 3 (1994).

71 495 U.S. 676 (1990).

72 25 U.S.C. § 1301(2). 

73 See U.S. v. Enas, 255 F.3d 662 (9th Cir. 2001).

74 See, e.g., the Major Crimes Act, 18 U.S.C.A. §§ 1153, 3242. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions