No. 99-1994 

In the Supreme Court of the United States 

STATE OF NEVADA, ET AL., PETITIONERS 

v. 

FLOYD HICKS, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES AS 
AMICUS CURIAE SUPPORTING AFFIRMANCE 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 
LOIS J. SCHIFFER 

Assistant Attorney General 
EDWIN S. KNEEDLER 

Deputy Solicitor General 
BARBARA MCDOWELL 

Assistant to the Solicitor 

General 
DAVID C. SHILTON 
WILLIAM B. LAZARUS 
LISA E. JONES 

Attorneys 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTIONS PRESENTED 

1. Whether a tribal court may exercise adjudicatory 
jurisdiction over a suit brought by a tribal member against 
state officials in their personal capacities, where the suit 
arises out of the state officials’ conduct on trust lands within 
the Tribe’s reservation in the execution of a search warrant 
authorized by a tribal court. 

2. Whether, when state officials sued in their personal 
capacities in tribal court invoke an immunity defense arising 
under federal law, the state officials ordinarily must litigate 
the defense in tribal court before proceeding to federal court. 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States ...................................................... 
1 

Statement ........................................................................................ 1 

Summary of argument .................................................................. 

6 

Argument: 

I. The tribal court has jurisdiction over claims 
against the petitioner state officers in their 

personal capacities based on their execution 
of search warrants on reservation trust land .......... 

7 
II. State officers sued in tribal court are entitled 

to federal immunity defenses, which ordinarily 
should be adjudicated initially in trial court ............ 

17 
III. Defendants in tribal court, like those sued in 

state court, should be given the opportunity to 
have federal claims against them adjudicated in 
federal court ................................................................... 

24 

Conclusion ....................................................................................... 30 

TABLE OF AUTHORITIES 

Cases: 

Arizona v. Turtle, 413 F.2d 683 (9th Cir. 1969), 
cert. denied, 396 U.S. 1003 (1970) ....................................... 
13 

Bad Frog Brewery, Inc. v. New York State 

Liquor Auth., 134 F.3d 87 (2d Cir. 1998) .......................... 

16 

Barrett v. Barrett, 878 P.2d 1051 (Okla. 1994) .................. 
3 

Becenti v. Vigil, 902 F.2d 777 (10th Cir. 1990) ................. 
25 

Behrens v. Pelletier, 516 U.S. 299 (1996) ........................... 
23 

Benally v. Marcum, 553 P.2d 1270 (N.M. 1976) ............... 
13 

Boisclair v. Superior Court, 41 Cal. 3d 1140 
(1990) ........................................................................................ 21 

Boyle v. United Tech. Corp., 487 U.S. 500 
(1988) ........................................................................................ 18 

(III) 

IV 

Cases—Continued: Page 

Brendale v. Confederated Tribes, 492 U.S. 408 
(1989) ........................................................................................ 11 

Cabazon Band of Mission Indians v. Smith, 
34 F. Supp. 2d 1201 (C.D. Cal. 1998), appeal 
pending, No. 99-55229 (9th Cir.) ......................................... 

20 

County of Oneida v. Oneida Indian Nation, 
470 U.S. 226 (1985) ................................................................ 
18 

Crawford-El v. Britton, 523 U.S. 574 (1998) .................... 
16 

Custody of Sengstock, In re, 477 N.W.2d 310 
(Wis. Ct. App. 1991) .............................................................. 
3 

Davis v. Littell, 398 F.2d 83 (9th Cir. 1968), cert. 
denied, 393 U.S. 1018 (1969) ............................................ 
21, 22 

Davis v. Michigan Dep’t of the Treasury, 489 U.S. 
803 (1989) ................................................................................. 
22 

Davis v. Muellar, 643 F.2d 521 (8th Cir.), cert. 
denied, 454 U.S. 892 (1981) ................................................ 
14-15 

Duro v. Reina, 495 U.S. 676 (1990) ..................................... 
19 

El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 
473 (1999) ......................................... 

7, 9, 16, 22, 26, 27, 28, 30 

Ford Motor Co. v. Department of Treasury, 
323 U.S. 459 (1945) ................................................................ 

16 
Fredericks v. Eide-Kirschmann Ford, Inc., 
462 N.W.2d 164 (N.D. 1990) ................................................. 
3 

Gesinger v. Gesinger, 531 N.W.2d 17 (S.D. 1995) ............ 
3 

Gutierrez de Martinez v. Lamagno, 515 U.S. 417 
(1995) ........................................................................................ 21 

Hafer v. Melo, 502 U.S. 21 (1991) .................................... 

15, 16 

Hegner v. Dietze, 524 N.W.2d 731 (Minn. Ct. App. 
1994) ......................................................................................... 21 

Howlett v. Rose, 496 U.S. 356 (1990) .................................. 

17 

Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 
(1987) ............................................................... 
3, 8, 9, 15, 25, 27 

Johnson v. Fankell, 520 U.S. 911 (1997) ............................ 
23 

Jones v. Meehan, 175 U.S. 1 (1899) .................................... 3 

V 

Cases—Continued: Page 

Kennerly v. District Court, 400 U.S. 423 (1971) .............. 
8 

Kiowa Tribe v. Manufacturing Tech., Inc., 
523 U.S. 751 (1998) ................................................................ 
17 

Larson v. Domestic & Foreign Commerce Corp., 
337 U.S. 682 (1949) ............................................................ 
15, 16 

Marriage of Red Fox, In re, 542 P.2d 918 (Or. Ct. 

App. 1975) ............................................................................... 

3 

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 
(1982) ....................................................................... 
10, 11, 12, 14 

Mesa v. California, 489 U.S. 121 (1989) ............................ 
29 

Miccosukee Tribe v. United States, No. 00-3453-CIV 
(S.D. Fla. Dec. 15, 2000) ........................................................ 
13 

Montana v. United States, 450 U.S. 544 (1981) ................ 
5, 6, 

9, 10, 11, 12, 13, 14 
National Farmers Union Ins. Cos. v. Crow Tribe, 
471 U.S. 845 (1985) ................................ 

1, 5, 7, 8-9, 10, 22, 25 

Neagle, In re, 135 U.S. 1 (1890) ......................................... 
20, 21 

New Mexico v. Mescalero Apache Tribe, 462 U.S. 
324 (1983) ................................................................ 

7, 8, 9, 10, 12 

Santa Clara Pueblo v. Martinez, 436 U.S. 49 
(1978) .............................................................................. 
2, 3, 8, 28 

South Dakota v. Bourland, 508 U.S. 679 
(1993) ........................................................................................ 11 

State v. Mathews, 986 P.2d 323 (Idaho 1999), 
cert. denied, 120 S. Ct. 1190 (2000) ..................................... 

13 

Stock W. Corp. v. Taylor, 964 F.2d 912 (9th Cir. 
1992) ......................................................................................... 25 

Strate v. A-1 Contractors, 520 U.S. 438 (1997) ................. 

6, 8, 

9, 10, 12, 19 
Tennessee v. Davis, 100 U.S. 257 (1880) ............................. 

27 

Turner v. Martire, 82 Cal. App. 4th 1042 (2000) .............. 
21 

United States v. McBratney, 104 U.S. 621 (1881) ........ 
12, 18 

United States v. Wheeler, 435 U.S. 313 (1978) ................... 7 

VI 

Cases—Continued: Page 

United States v. Yakima Tribal Court, 806 F.2d 
853 (9th Cir. 1986), cert. denied, 481 U.S. 1069 
(1987) ...................................................................................... 16-17 

United Steelworkers v. Bouligny, 382 U.S. 145 
(1965) ........................................................................................ 27 

Westfall v. Erwin, 484 U.S. 292 (1988) ................... 

18, 20, 21 

White Mountain Apache Indian Tribe v. Shelley, 
480 P.2d 654 (Ariz. 1971) ...................................................... 
21 

Williams v. Lee, 358 U.S. 217 (1959) ................................ 
8, 14 

Wilson v. Layne, 526 U.S. 603 (1999) ................................. 
17 

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) ............. 
7 

Constitution and statutes: 

U.S. Const. Art. VI, Cl. 2 (Supremacy Clause) ................... 

20 

Act of Aug. 15, 1953, Pub. L. No. 83-280, 67 Stat. 588: 
18 U.S.C. 1162 ........................................................................ 
19 

25 U.S.C. 1321 et seq. ............................................................. 
19 

28 U.S.C. 1360 ........................................................................ 
19 

American Indian Agricultural Resource Management 

Act, 25 U.S.C. 3713(c) ........................................................... 

3 

Federal Employees Liability Reform and Tort Com- 
pensation Act of 1988, Pub. L. No. 100-694, 102 
Stat. 4563 ................................................................................. 
21 

Federal Tort Claims Act: 
28 U.S.C. 2679(b) ................................................................... 
29 

28 U.S.C. 2679(d) ................................................................... 
21 

28 U.S.C. 2679(d)(2) ............................................................... 
29 

Indian Child Welfare Act of 1978, 25 U.S.C. 1901 et seq.: 
25 U.S.C. 1911(a) .................................................................... 
3 

25 U.S.C. 1911(d) ................................................................... 
3 

Indian Civil Rights Act of 1968, 25 U.S.C. 1301 et seq. ...... 
2 

25 U.S.C. 1302(2) .................................................................... 
14 

Indian Reorganization Act, 25 U.S.C. 476 et seq. ................ 2 

VII 

Statutes—Continued: Page 

Indian Self-Determination and Education Assistance 

Act, 25 U.S.C. 450 et seq.: 
25 U.S.C. 450 ...................................................................... 
2 

25 U.S.C. 450(a) ................................................................. 
2 

Indian Tribal Justice Act, Pub. L. No. 103-176, 
107 Stat. 2004 (25 U.S.C. 3601 et seq.) ................................ 
2, 8 

25 U.S.C. 3601(4)-(6) ......................................................... 
2 

25 U.S.C. 3601(5) ............................................................... 
1 

Indian Tribal Justice Technical and Legal Assistance 

Act of 2000, Pub. L. No. 106-559, 114 Stat. 2778 .............. 

3 

§ 2 ......................................................................................... 
3 

§ 101 ..................................................................................... 
3 

§ 106 ..................................................................................... 
3 

§ 201 ..................................................................................... 
3 

§ 202 ..................................................................................... 
3 

National Indian Forest Resources Management Act, 
25 U.S.C. 3106(c) .................................................................... 
3 

5 U.S.C. 702 ................................................................................ 
17 

12 U.S.C. 1715z-13(g)(5) .......................................................... 
3 

18 U.S.C. 1152 ........................................................................... 
18 

18 U.S.C. 1153 ........................................................................... 
18 

18 U.S.C. 2265 ........................................................................... 
3 

25 U.S.C. 2804 ........................................................................... 
19 

25 U.S.C. 2804(f ) ...................................................................... 
19 

28 U.S.C. 1367(c) ...................................................................... 
27 

28 U.S.C. 1441 ............................................................ 
7, 25, 26, 28 

28 U.S.C. 1441(a) ...................................................................... 
29 

28 U.S.C. 1441(b) ...................................................................... 
27 

28 U.S.C. 1441(c) ...................................................................... 
27 

28 U.S.C. 1442 (1994 & Supp. IV 1998) ................................ 
29 

28 U.S.C. 1446(b) ...................................................................... 
27 

42 U.S.C. 1983 ................................................... 
7, 15, 16, 17, 25, 27 

42 U.S.C. 2210(n)(2) ................................................................. 26 

VIII 

Miscellaneous—Continued: Page 

Department of Justice Policy and Indian Sovereignty 
and Government-to-Government Relations, 61 Fed. 
Reg. 29,424 (1996) .................................................................. 
2 

Fallon Paiute-Shoshone Tribe Law & Order Code 
(1986): 
§ 1-10-040(a) ....................................................................... 
22 

§ 1-30-040 ............................................................................ 
22 

40 Fed. Reg. 27,501 (1975) ....................................................... 
19 

53 Fed. Reg. 5837 (1988) .......................................................... 
19 

H.R. Conf. Rep. No. 383, 103d Cong., 1st Sess. 
(1993) ........................................................................................ 3 

5 F.V. Harper et al., The Law of Torts (2d ed. 
1986) ......................................................................................... 15 

Hon. Sandra Day O’Connor, Lessons from the Third 

Sovereign: Indian Tribal Courts, 33 Tulsa L.J. 1 
(1997) ........................................................................................ 2 

S. Rep. No. 88, 103d Cong., 1st Sess. (1993) ......................... 

3 

R. Strickland et al., Felix S. Cohen’s Handbook 
of Federal Indian Law (1982) ............................................. 
2 

Tribal Justice Act: Hearing Before the Senate 

Comm. on Indian Affairs, 104th Cong., 1st 
Sess. (1995) .............................................................................. 

2 
U.S. Comm’n on Civil Rights, The Indian Civil 

Rights Act (1991) ................................................................... 2 

In the Supreme Court of the United States 

No. 99-1994 

STATE OF NEVADA, ET AL., PETITIONERS 

v. 
FLOYD HICKS, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES AS 
AMICUS CURIAE SUPPORTING AFFIRMANCE 

INTEREST OF THE UNITED STATES 

The United States has long been “committed to a policy of 
supporting tribal self-government and self-determination.” 
National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 
845, 856 & n.20 (1985). Central to tribal sovereignty is 
proper respect for tribal courts and other tribal institutions. 
The United States also has a strong interest in the orderly 
operation of a system of government in which States and 
Tribes, as coordinate sovereigns, occupy overlapping 
spheres of authority on reservations. That interest is ad- 
vanced by recognizing that state officials are entitled, as a 
matter of federal law, to assert immunity defenses for con- 
duct on a reservation within the scope of their authority and 
to obtain a federal forum to adjudicate federal claims initially 
brought against them in tribal court. 

STATEMENT 

1. “[T]ribal justice systems are an essential part of tribal 
governments,” 25 U.S.C. 3601(5), and many Tribes have for- 
mal court systems to adjudicate disputes arising on their 

(1) 

2 

reservations. See U.S. Comm’n on Civil Rights, The Indian 
Civil Rights Act 29-31 (1991); R. Strickland et al., Felix S. 
Cohen’s Handbook of Federal Indian Law 332-335 (1982). 
The United States has provided comprehensive assistance to 
ensure the availability and quality of tribal courts.1 Over the 
past two decades, the number of tribal courts, as well as the 
number of cases on their dockets, has increased sharply, and 
there have been significant advances in the professional 
qualifications of tribal judges and lawyers.2 

Congress recognized in the Indian Tribal Justice Act, 25 
U.S.C. 3601 et seq., that Tribes possess “inherent authority 
to establish their own form of government, including tribal 
justice systems,” which are “important forums for ensuring 
public health and safety and the political integrity of tribal 
governments” and are “the appropriate forums for the ad- 
judication of disputes affecting personal and property 
rights.” 25 U.S.C. 3601(4)-(6). The Senate Report accom- 
panying that Act explained that “tribal courts are per- 

1 See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65 & n.21 (1978); 
see, e.g., 25 U.S.C. 450, 450a (Indian Self-Determination and Education 
Assistance Act, providing funding and assistance for tribal government 
institutions, including courts); 25 U.S.C. 476 et seq. (Indian Reorganization 
Act, providing for reorganization of tribal governments); 25 U.S.C. 1301 et 
seq. (Indian Civil Rights Act of 1968, recognizing powers of tribal self- 
government, establishing bill of rights, and providing for development of 
model code of Indian offenses for tribal courts); 25 U.S.C. 3601 et seq. (In- 
dian Tribal Justice Act, establishing Office of Tribal Justice Support 
within Bureau of Indian Affairs and authorizing appropriations to assist 
tribal courts). The Department of Justice has played an important role in 
fostering the development of tribal courts. See Department of Justice 
Policy on Indian Sovereignty and Government-to-Government Relations, 
61 Fed. Reg. 29,424 (1996). 

2 See Hon. William Canby, Chair of Ninth Circuit Task Force on 
Tribal Courts, Tribal Justice Act: Hearing Before the Senate Comm. on 
Indian Affairs, 104th Cong., 1st Sess. 58 (1995) (“Tribal Courts today are 
infinitely more competent and better staffed than they were thirty or even 
fifteen years ago.”); Hon. Sandra Day O’Connor, Lessons from the Third 
Sovereign: Indian Tribal Courts, 33 Tulsa L.J. 1, 2 (1997) (“The tribal 
courts, while relatively young, are developing in leaps and bounds.”). 

3 

manent institutions charged with resolving the rights and 
interests of both Indian and non-Indian individuals.” S. Rep. 
No. 88, 103d Cong., 1st Sess. 8 (1993). And the Conference 
Report stated that “civil jurisdiction on an Indian reser- 
vation ‘presumptively lies in tribal court, unless affirma- 
tively limited by a specific treaty provision or federal 
statute.’ ” H.R. Conf. Rep. No. 383, 103d Cong., 1st Sess. 13 
(1993) (quoting Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 
18 (1987)). See also Indian Tribal Justice Technical and 
Legal Assistance Act of 2000, §§ 2, 101, 106, 201, 202, Pub. L. 
No. 106-559, 114 Stat. 2778 (making similar findings and 
authorizing appropriations for tribal justice systems). 

Congress has recognized tribal courts’ jurisdiction to adju- 
dicate important questions of federal law. For example, 
Congress has affirmed the exclusive jurisdiction of tribal 
courts to resolve many disputes under the Indian Child Wel- 
fare Act of 1978, see 25 U.S.C. 1911(a), and to enforce the 
Indian Civil Rights Act of 1968, see Santa Clara Pueblo v. 
Martinez, 436 U.S. 49 (1978). See also 12 U.S.C. 1715z- 
13(g)(5) (authorizing federal government to bring mortgage 
foreclosure actions against reservation homeowners in tribal 
or federal court). And, although no federal statute generally 
requires full faith and credit for tribal court judgments,3 
state courts routinely enforce such judgments.4 

2. a. This case concerns a challenge to the jurisdiction of 
the Fallon Paiute-Shoshone Tribal Court over two suits 
brought by respondent Hicks, a tribal member, against 

3 Congress has, however, imposed full-faith-and-credit requirements 
for specific categories of adjudications. See, e.g., 18 U.S.C. 2265 (domestic 
violence orders); 25 U.S.C. 1911(d) (child custody orders); 25 U.S.C. 
3106(c) (National Indian Forest Resources Management Act); 25 U.S.C. 
3713(c) (American Indian Agricultural Resource Management Act). 

4 See Fredericks v. Eide-Kirschmann Ford, Inc., 462 N.W.2d 164 
(N.D. 1990); Barrett v. Barrett, 878 P.2d 1051 (Okla. 1994); Gesinger v. 
Gesinger, 531 N.W.2d 17 (S.D. 1995); In re Custody of Sengstock, 477 
N.W.2d 310 (Wis. Ct. App. 1991); In re Marriage of Red Fox, 542 P.2d 918 
(Or. Ct. App. 1975); cf. Jones v. Meehan, 175 U.S. 1, 31-32 (1899). 

4 

officials of the State of Nevada. The suits arise out of state 
game wardens’ execution of two warrants issued by a state 
court to search Hicks’s premises for evidence of a state 
misdemeanor offense, the killing of a big horn sheep. The 
wardens sought and received the tribal court’s permission to 
execute the warrants. During each search, the wardens 
seized a mounted sheep head trophy; the wardens later 
returned the trophies, concluding that they were not 
evidence of an offense. Pet. App. A3-A4, B2-B3, E1-G1. 

Hicks sued in tribal court to recover money damages al- 
legedly sustained as a result of the execution of the war- 
rants. He named as defendants the State of Nevada and 
various state and tribal officials in their official and personal 
capacities. He alleged federal civil rights violations, common 
law torts, and civil rights violations under tribal law. Pet. 
App. A4; id. at I1-I5 (amended complaint). 

The state defendants (petitioners here) specially appeared 
in tribal court and moved to quash service of process, argu- 
ing that service was deficient and that the tribal court lacked 
personal jurisdiction over them. Pet. App. J1-J7. The tribal 
court granted the motion. Id. at L2. The Inter-Tribal Court 
of Appeals reversed. It held that service of process was 
valid and that personal jurisdiction existed over petitioners 
based upon their voluntary entry onto the Reservation and 
voluntary submission to the tribal court’s jurisdiction in 
seeking the warrants. Id. at C1-C8. 

b. Petitioners then filed this action in federal district 
court. They sought an injunction against the tribal court 
proceedings and a declaratory judgment that “the Fallon 
Tribal Court may not exercise jurisdiction over the State of 
Nevada and its officers and employees.” The complaint 
named as defendants Hicks, the tribal court judge, and the 
tribal court itself (respondents here). Pet. App. B3-B4. 

Hicks moved in tribal court to dismiss all claims against 
the State and its officers in their official capacities. The 
tribal court, which had stayed its proceedings during the 

5 

pendency of the federal court proceedings, lifted the stay to 
grant the motion. As a consequence, the district court held 
that questions regarding the tribal court’s jurisdiction over 
the State and its officers in their official capacities were 
moot. Pet. App. B4, B18 n.3. 

The district court subsequently granted summary judg- 
ment for respondents. Pet. App. B1-B24. The court held 
that petitioners had exhausted their tribal court remedies 
with respect to the jurisdictional question, as required by 
National Farmers Union Insurance Cos. v. Crow Tribe, 471 
U.S. 845 (1985). Pet. App. B7-B8. The court then held that 
the tribal court’s exercise of jurisdiction over Hicks’s suits 
comported with Montana v. United States, 450 U.S. 544 
(1981), because providing a forum for the adjudication of 
tribal members’ tort claims against nonmembers involving 
events on tribal or trust land on a reservation is important to 
a Tribe’s political integrity. Pet. App. B13. The court 
further concluded that the tribal court was not deprived of 
jurisdiction because petitioners are state officials. The court 
explained that the potential availability of an immunity 
defense is not a jurisdictional bar to suit and that petitioners 
had not exhausted their tribal court remedies with respect to 
the merits of such a defense. Id. at B15-B17. 

c. A divided panel of the Ninth Circuit affirmed. Pet. 
App. A1-A23. The panel held that “[t]he Tribe’s unfettered 
power to exclude state officers from its lands implies its 
authority to regulate the behavior of non-members on that 
land.” Id. at A11. The panel reasoned that tribal sover- 
eignty over trust lands on the Reservation was not dimin- 
ished by the tribal court’s approval of the search warrants, 
which the panel characterized as allowing state officers to 
come onto those lands only “for a limited, clearly delineated 
purpose.” Ibid. Accordingly, the panel held that, because 
the Tribe had authority to regulate the conduct of the 
officers on trust lands, the tribal court has civil adjudicatory 
jurisdiction over the officers’ conduct. Id. at A12. The panel 

6 

declined to consider the merits of petitioners’ immunity 
defenses because petitioners had not yet presented those 
defenses to the tribal court. Id. at A14-A15. 

Judge Rymer dissented. In her view, because the tribal 
court had authorized the searches of Hicks’s residence, the 
Tribe had ceded its right to exclude petitioners from the 
Reservation and therefore could not, under Montana, exer- 
cise jurisdiction over them. Pet. App. A16-A19. 

SUMMARY OF ARGUMENT 

A. The tribal court has jurisdiction over the claims 
against petitioners in their personal capacities for federal 
constitutional violations and tribal-law torts. Those claims 
arise out of petitioners’ execution of search warrants within 
the Reservation on land held in trust for a tribal member. 
This Court has recognized that “tribes retain considerable 
control”—both regulatory and adjudicatory—“over non- 
member conduct on tribal land” within a reservation. Strate 

v. A-1 Contractors, 520 U.S. 438, 454 (1997). 
The Court has also recognized that Tribes possess 
authority over the conduct of nonmembers elsewhere within 
a reservation where that conduct involves “consensual rela- 
tionships with the tribe or its members” or affects “the po- 
litical integrity, the economic security, or the health or 
welfare of the tribe.” Strate, 520 U.S. at 446 (quoting 
Montana v. United States, 450 U.S. 544, 565-566 (1981)). 
Here, petitioners entered into a consensual relationship with 
the Tribe because, in order to execute the warrants, they 
were required to, and did, obtain authorization from the 
tribal court. Moreover, a Tribe’s political integrity and 
welfare are threatened when state officials, invoking the 
Tribe’s own authority, are alleged to have violated the rights 
of its members on its reservation. 

B. The tribal court should be afforded the initial opportu- 
nity to consider petitioners’ federal immunity defenses— 
which include not only qualified immunity under 42 U.S.C. 

7 

1983, but also an immunity from tribal-law claims for acts 
within the scope of their official duties. As the Court 
recognized in National Farmers Union Insurance Cos. v. 
Crow Tribe, 471 U.S. 845 (1985), exhaustion of tribal court 
procedures promotes tribal self-government, enables the 
tribal court to consider the limitations on its own authority, 
and avoids simultaneous litigation in tribal and federal court. 
We have no reason to believe that petitioners’ federal 
immunity defenses could not be adjudicated in tribal court— 
and then, if necessary, in federal court—before petitioners 
would be subject to full discovery and trial in tribal court. 

C. Although the tribal court has jurisdiction over the 
claims against petitioners, they, like defendants in state 
court, should have an opportunity to obtain a federal forum 
for the adjudication of claims arising under federal law. 
Under 28 U.S.C. 1441, a state court defendant has a right to 
remove federal claims (and pendent state claims) to federal 
court. Here, a comparable result may be obtained by a 
federal court injunction against tribal court adjudication of 
the federal claims. See El Paso Natural Gas Co. v. 
Neztsosie, 526 U.S. 473, 485 (1999). 

ARGUMENT 

I. THE TRIBAL COURT HAS JURISDICTION OVER 
CLAIMS AGAINST THE PETITIONER STATE 
OFFICERS IN THEIR PERSONAL CAPACITIES 

BASED ON THEIR EXECUTION OF SEARCH 
WARRANTS ON RESERVATION TRUST LAND 

A. Indian Tribes are unique political entities that possess 
inherent sovereignty “over both their members and their 
territory.” New Mexico v. Mescalero Apache Tribe, 462 U.S. 
324, 332 (1983); see also United States v. Wheeler, 435 U.S. 
313, 322 (1978); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 
547-549 (1832). “[T]ribal authority over the activities of non- 
Indians on reservation lands is an important part of tribal 

8 

sovereignty.” Strate v. A-1 Contractors, 520 U.S. 438, 451 
(1997) (quoting Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 
18 (1987)). For that reason, this Court has recognized that 
tribal courts are an “appropriate forum[]”—sometimes the 
exclusive forum—for the adjudication of “disputes affecting 
important personal and property interests of both Indians 
and non-Indians.” 
Santa Clara Pueblo v. Martinez, 436 

U.S. 49, 65 (1978) (emphasis added). The Court has rejected 
attacks on the institutional competency of tribal courts as 
“contrary to * * * congressional policy,” Iowa Mut., 480 
U.S. at 19, and to its own precedents, Santa Clara Pueblo, 
436 U.S. at 65-66. See also 25 U.S.C. 3601 et seq. 

The Court has upheld tribal courts’ exercise of civil 
adjudicatory jurisdiction in various contexts affecting non- 
Indians. See, e.g., Williams v. Lee, 358 U.S. 217, 223 (1959) 
(tribal court has exclusive jurisdiction to adjudicate on- 
reservation contract dispute brought by non-Indian against 
Indian; “[i]t is immaterial that respondent is not an Indian,” 
because “[h]e was on the Reservation and the transaction 
with an Indian took place there”); Santa Clara Pueblo, 436 
U.S. at 65-66 (tribal courts have exclusive jurisdiction to 
enforce federal guarantees to Indians and non-Indians under 
Indian Civil Rights Act); Kennerly v. District Court, 400 
U.S. 423 (1971) (per curiam). See generally New Mexico, 462 
U.S. at 335-336 (“[T]ribes have the power to manage the use 
of their territory and resources by both members and non- 
members, to undertake and regulate economic activity with- 
in the reservation, and to defray the cost of governmental 
services by levying taxes.”). 

Moreover, the Court has articulated a prudential rule that 
federal courts should, in deference to “tribal self-government 
and self-determination,” refrain from considering challenges 
to a tribal court’s exercise of jurisdiction over a case until the 
challenge has been considered by the tribal court itself. See 
Iowa Mut., 480 U.S. at 15; National Farmers Union Ins. 
Cos. v. Crow Tribe, 471 U.S. 845 (1985). Both of those cases 

9 

arose out of suits in tribal court against non-Indian 
defendants—and, in the latter case, “a political subdivision of 
the State,” 471 U.S. at 847—based on their conduct within a 
reservation. Indeed, the Court recognized in Iowa Mutual 
that such suits “presumptively” are within a tribal court’s 
jurisdiction, “unless affirmatively limited by a specific treaty 
provision or federal statute.” 480 U.S. at 18. 

The Court recently held that a Tribe does not possess ad- 
judicatory authority over a suit between non-Indians involv- 
ing events on reservation lands over which the Tribe has 
relinquished regulatory authority. See Strate, 520 U.S. at 
455 (involving right-of-way for state highway). At the same 
time, however, the Court “readily agree[d]” that “tribes 
retain considerable control over nonmember conduct on 
tribal land.” Id. at 454; cf. El Paso Natural Gas Co. v. 
Neztsosie, 526 U.S. 473, 482 n.4 (1999) (distinguishing Strate 
as “deal[ing] with claims against nonmembers arising on 
state highways,” whereas “the events in question here oc- 
curred on tribal lands”). It thus remains the case that a 
Tribe retains expansive authority—including civil adjudica- 
tory authority—over nonmember conduct on “land belonging 
to the Tribe or held by the United States in trust for the 
Tribe.” New Mexico, 462 U.S. at 331. Even on non-Indian 
fee lands within a reservation, a tribal court may exercise 
jurisdiction over nonmembers to the extent that they have 
“enter[ed] consensual relationships with the tribe or its 
members” or engaged in “conduct that threatens or directly 
affects the political integrity, the economic security, or the 
health or welfare of the tribe.” Strate, 520 U.S. at 446 
(quoting Montana v. United States, 450 U.S. 544, 565-566 
(1981)). 

Petitioners assert (Br. 40-41) that this Court’s precedents, 
including Montana, do not “establish[] a distinction” with re- 
spect to tribal jurisdiction over nonmembers on a reser- 
vation based on “land status.” To the contrary, the Court 
has repeatedly recognized that a Tribe may exercise signifi- 

10 

cantly greater authority over the conduct of nonmembers on 
tribal or trust lands within its reservation. See, e.g., Merrion 

v. Jicarilla Apache Tribe, 455 U.S. 130, 147 (1982) (“the 
nonmember’s presence and conduct on Indian lands are 
conditioned by the limitations the tribe may choose to 
impose”). In Montana itself, the Court “agree[d]” with the 
court of appeals’ holding that “the Tribe may prohibit non- 
members from hunting or fishing on land belonging to the 
Tribe or held by the United States in trust for the Tribe,” or 
may enforce lesser restrictions on nonmembers’ hunting and 
fishing there. 450 U.S. at 557. The Court then considered 
whether the Tribe could also regulate nonmembers’ hunting 
and fishing on “reservation land owned in fee by non- 
members of the Tribe.” Ibid. It was in that context that the 
Court held that the Tribe could not regulate nonmember 
hunting and fishing, because those activities did not impli- 
cate “consensual relationships” with the Tribe or “threaten 
the Tribe’s political or economic security.” Id. at 566. Mon- 
tana thus drew the very jurisdictional distinction based on 
“land status” that petitioners seek to avoid. See New 
Mexico, 462 U.S. at 330-331 (describing distinction drawn in 
Montana based on land status).5 
In subsequent cases, the Court has continued to focus on 
the status of the land on which the nonmember’s activities 
occurred. Only where a Tribe relinquished its interests in 
reservation land has the Court confined the Tribe’s juris- 
diction over nonmembers to the circumstances enumerated 
in Montana. See, e.g., Strate, 520 U.S. at 442, 454-456 (fed- 
eral grant of right-of-way to the State precluded Tribe’s ex- 
ercise of proprietary rights and rendered highway equiva- 
lent of non-Indian fee land); South Dakota v. Bourland, 508 

5 Petitioners also invoke (Br. 40-41) cases involving Tribes’ criminal 
jurisdiction over nonmembers. But this Court has declined to equate 
Tribes’ civil jurisdiction with their criminal jurisdiction. See, e.g., Na- 
tional Farmers, 471 U.S. at 854-855 & nn.16, 17. 

11 

U.S. 679, 683, 694-695 (1993) (Tribe retained no inherent 
authority to regulate nonmember hunting and fishing on 
reservation lands held by United States for a flood-control 
project, where Tribe conveyed “all tribal * * * interests” in 
those lands to United States and “Congress clearly abro- 
gated the Tribe’s pre-existing regulatory control over non- 
Indian hunting and fishing”); Brendale v. Confederated 
Tribes, 492 U.S. 408, 433-448 (1989) (opinion of Stevens and 
O’Connor, JJ.) (distinguishing between fee lands in area 
where Tribe retained power to control access to, and charac- 
ter of, reservation land and fee lands in area where Tribe did 
not retain such power). 

An approach that distinguishes between a Tribe’s author- 
ity over tribal and trust lands, as opposed to non-Indian 
lands, within a reservation is consistent with reasonable 
expectations. As the Court observed in Montana, Congress 
would not have expected a Tribe to continue to exercise 
extensive jurisdiction over the activities of non-Indians on 
reservation lands that were alienated to a non-Indian. See 
450 U.S. at 560 n.9. Nor would the non-Indian landowner 
expect the Tribe to exercise such jurisdiction. But the con- 
trary expectation would exist with respect to reservation 
lands that are owned by a Tribe outright or that are held in 
trust for the Tribe or its members. A Tribe would rea- 
sonably expect that it retained its inherent sovereignty over 
such lands and that, because it could deny non-Indians access 
to those lands, it could regulate the activities there of anyone 
who was granted access. See Merrion, 455 U.S. at 136-148. 
Correspondingly, a non-Indian would reasonably expect 
that, in entering such reservation lands, he subjects himself 
to regulation by the Tribe.6 

6 Contrary to petitioners’ contention (Br. 43), an approach that based a 
Tribe’s civil jurisdiction over the activities of nonmembers on a reser- 
vation solely on the Montana exceptions—and not in the first instance on 
whether those activities occurred on tribal or trust land—would likely be 

12 

B. The court of appeals correctly held that the tribal 
court possessed jurisdiction over Hicks’s claims against peti- 
tioners in their personal capacities for federal constitutional 
violations and tribal-law torts allegedly committed while 
executing search warrants on the Reservation. 

1. It appears to be undisputed that the conduct giving 
rise to those claims—the search of a tribal member’s pre- 
mises and seizure of his property—took place on reservation 
land held in trust for an individual Indian. See Pet. App. A3, 
B2, F1, G1, I2-I3. The tribal court’s jurisdiction thus was 
invoked with respect to “nonmember conduct on tribal land” 
—conduct over which, as the Court recognized in Strate, 
“tribes retain considerable control.” 520 U.S. at 454; see also 
New Mexico, 462 U.S. at 332; Montana, 450 U.S. at 557. The 
Tribe’s authority over that land was not “alienated,” as 
petitioners suggest (Br. 44), when they obtained the tribal 
court’s permission to enter the land for the limited purpose 
of executing the warrants. Indeed, even in circumstances 
where a Tribe more extensively relinquished its authority to 
exclude certain non-Indians from tribal lands by entering 
into a long-term lease with them, the Court held that the 
Tribe did not thereby relinquish its authority to tax (or, 
presumably, otherwise to regulate) their activities on the 
lands. Merrion, 455 U.S. at 137-144. Here, moreover, in 
recognizing that a warrant to search Hicks’s premises would 
be effective only if approved by the tribal court, the state 
court confirmed the Tribe’s jurisdiction over that land. See 
Pet. App. G1 (“This Court has no jurisdiction on the Fallon 
Paiute-Shoshone Indian Reservation and, before any search 
is conducted in furtherance hereof, an approval authorizing 
same must be obtained from the Fallon Tribal Court.”).7 The 

less, rather than more, “reliable” or “workable” in practice than the cur- 
rent approach. 

7 As a general matter, although state officials have jurisdiction to 
investigate and prosecute crimes on a reservation that exclusively involve 
non-Indians, see United States v. McBratney, 104 U.S. 621 (1881), they do 

13 

tribal court exercised that jurisdiction not only by approving 
the warrants, but also by imposing conditions on their execu- 
tion. See ibid. (limiting first search “to exterior premises 
only and to vehicles thereon”). 

2. The tribal court was entitled to exercise jurisdiction 
here even if one accepts, arguendo, petitioners’ (erroneous) 
view that, unless one of Montana’s exceptions applies, a 
tribal court cannot exercise jurisdiction over nonmembers’ 
conduct even on tribal or trust land within a reservation. 
Under Montana’s first exception, which recognizes that a 
Tribe’s “inherent sovereign power” extends to “the activities 
of nonmembers who enter consensual relationships with the 
tribe or its members,” 450 U.S. at 565, petitioners entered 
into a consensual relationship with the Tribe when they 
sought and received the tribal court’s permission to exercise 
their state authority within the Reservation for a limited 
purpose. They would have understood, as the state court 
advised them (see Pet. App. G1), that they could execute the 
warrants only with the tribal court’s permission. They 
would also have understood that the tribal court could, and 

not have jurisdiction with respect to crimes involving Indian perpetrators 
or Indian victims. In addition, on those reservations (unlike this one) 
where Public Law 280 is applicable, state officials have jurisdiction to 
investigate and prosecute crimes involving Indians as well. See p. 19 & 
note 11, infra. But, as the state court recognized when it issued the 
warrants in this case, its jurisdiction did not extend to Indian lands on the 
Reservation, and, for similar reasons, state officials had no inherent 
authority to enter onto tribal or trust lands within the Reservation in the 
circumstances of this case. Cf. Benally v. Marcum, 553 P.2d 1270 (N.M. 
1976) (state officers cannot arrest Indian on reservation for off-reservation 
crime, but must instead follow tribal procedures); Arizona v. Turtle, 413 
F.2d 683 (9th Cir. 1969) (same for extradition to another State), cert. 
denied, 396 U.S. 1003 (1970); but cf. State v. Mathews, 986 P.2d 323 (Idaho 
1999) (state officers may execute search warrant in absence of tribal 
procedures), cert. denied, 120 S. Ct. 1190 (2000). See also Miccosukee 
Tribe v. United States, No. 00-3453-CIV (S.D. Fla. Dec. 15, 2000) (enjoin- 
ing service of subpoena issued by state court to Indians on reservation to 
appear as witnesses in state criminal case). 

14 

indeed did (see ibid.), impose conditions on their execution of 
the warrants. Surely, if petitioners had violated any express 
condition that the tribal court imposed (e.g., if they had 
executed the first warrant inside Hicks’s residence), the 
tribal court would not have been powerless to call them to 
account. Cf. Merrion, 455 U.S. at 144 (recognizing that Tribe 
may “oust” non-Indian granted permission to enter its reser- 
vation if he does not comply “with the initial conditions of 
entry”). Accordingly, much like a non-Indian merchant who 
chooses to engage in business on a reservation with mem- 
bers of a Tribe, see Williams, 358 U.S. at 220, petitioners 
chose to enter into a consensual relationship with the Tribe 
and its members.8 

Under Montana’s second exception, which recognizes a 
Tribe’s authority over 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 566, a tribal court may exercise jurisdiction over 
nonmembers who are alleged to have invoked the Tribe’s 
own authority to violate the legal rights of its members on 
its reservation. At least in the circumstances here, where 
state officers executed a warrant approved by a tribal court 
and were accompanied by a tribal officer in doing so, the 
Tribe’s “political integrity” and “welfare” are significantly 
implicated. Indeed, the Indian Civil Rights Act obligates the 
Tribe, in “exercising powers of self-government,” to respect 
“the right of the people to be secure in their persons, houses, 
papers, and effects against unreasonable search and sei- 
zures.” 25 U.S.C. 1302(2). Cf. Davis v. Muellar, 643 F.2d 

8 Contrary to petitioners’ assertions (Br. 37), the state game wardens’ 
conduct here does not “parallel[]” the non-Indian truck driver’s conduct in 
Strate. It is disingenuous for petitioners to contend (ibid.) that “Hicks was 
not a party to the relationship between the state officials and the Tribe.” 
Hicks and his property were the subject of the state officials’ dealings 
with the Tribe; indeed, Hicks was an intended beneficiary of the tribal 
court’s limiting of the first search to the exterior of his residence. 

15 

521, 525 n.8 (8th Cir.) (“refusal of state police officers to 
recognize legitimate tribal judicial authority while on the 
reservation is at least to some extent state interference with 
tribal sovereignty”), cert. denied, 454 U.S. 892 (1981). 

C. Petitioners argue (Br. 7), however, that Tribes have 
been divested of any “judicial power over state officials,” 
regardless of the capacity in which they are sued. Peti- 
tioners cannot point to any Treaty or Act of Congress divest- 
ing Tribes generally, or the Fallon Paiute-Shoshone Tribe 
specifically, of all power to adjudicate claims against state 
officers in their personal capacities. Cf. Iowa Mut., 480 U.S. 
at 18. But petitioners assert (Br. 9-29), based on principles 
of sovereign and qualified immunity, that state officials may 
never be sued in tribal court. Petitioners are mistaken. 

It is indisputable that the underlying suits in tribal court 
are against state officers sued solely in their personal 
capacities. Pet. App. A5, A13, A23 n.13; see pp. 4-5, supra. 
See Hafer v. Melo, 502 U.S. 21, 25 (1991) (explaining distinc- 
tion between personal- and official-capacity suits). The sov- 
ereign immunity of a State does not pose any jurisdictional 
bar to a suit against a state officer in his personal capacity. 
That is not a rule of recent invention, or one limited to 
Section 1983 actions. As a leading torts treatise has 
observed, “[t]he Anglo-American tradition did not include a 
general theory of immunity from suit or from liability on the 
part of public officers.” 5 F.V. Harper et al., The Law of 
Torts § 29.8, at 653-654 (2d ed. 1986). That principle has been 
repeatedly recognized by this Court in cases involving 
common-law tort and contract claims as well as claims for 
federal constitutional violations. In Larson v. Domestic & 
Foreign Commerce Corp., 337 U.S. 682 (1949), for example, 
the Court explained that, if the “wrongful actions” of “[g]ov- 
ernment officers” are “such as to create a personal liability, 
whether sounding in tort or in contract, the fact that the 
officer is an instrumentality of the sovereign does not, of 
course, forbid a court from taking jurisdiction over a suit 

16 

against him.” Id. at 686. Thus, “[i]n a suit against the officer 
to recover damages for the agent’s personal actions” in the 
performance of his duties, the “question is easily answered” 
that the suit is not against the government and thus is not 
barred by sovereign immunity. Id. at 687; accord, e.g., Hafer, 
502 U.S. at 30 (sovereign immunity does not bar Section 1983 
suits against state officials in their personal capacities); Ford 
Motor Co. v. Department of Treasury, 323 U.S. 459, 462 
(1945) (“Where relief is sought under general law from 
wrongful acts of state officials, the sovereign’s immunity 
under the Eleventh Amendment does not extend to wrong- 
ful individual action, and the citizen is allowed a remedy 
against the wrongdoer personally.”); Bad Frog Brewery, Inc. 

v. New York State Liquor Auth., 134 F.3d 87, 102 (2d Cir. 
1998) (sovereign immunity does not bar federal courts from 
entertaining suits against state officers in their personal 
capacities for violations of state law). 

Although immunity defenses are available in tribal court 
to state officers sued in their personal capacities (see Part II, 
infra), the availability of such defenses does not divest the 
tribal court of jurisdiction. See Larson, 337 U.S. at 687 n.7 
(contrasting “limitations on the court’s jurisdiction to hear a 
suit directed against the sovereign” with immunity defenses 
of the sovereign’s officers); Crawford-El v. Britton, 523 U.S. 
574, 587 (1998) (explaining that qualified immunity is an 
affirmative defense and the burden of pleading it rests with 
the defendant). A tribal court thus has jurisdiction to decide, 
in the first instance, whether any immunity defenses protect 
petitioners from suit in this case. See El Paso, 526 U.S. at 
485 n.7 (recognizing general competence of tribal courts to 
adjudicate federal defenses).9 

9 There is no occasion in this case for the Court to decide whether 
sovereign immunity would bar all unconsented suits in tribal court against 
a State or against state officials in their official capacities. Cf. United 
States v. Yakima Tribal Court, 806 F.2d 853 (9th Cir. 1986) (enjoining 
tribal court injunctive action against federal officers in their official 

17 

II. STATE OFFICERS SUED IN TRIBAL COURT ARE 

ENTITLED TO FEDERAL IMMUNITY DE- 
FENSES, WHICH ORDINARILY SHOULD BE AD- 
JUDICATED INITIALLY IN TRIBAL COURT 

In our view, although Nevada’s sovereign immunity does 
not extend to state officials sued in tribal court in their 
personal capacities, federal law does afford state officers 
immunity from such suits for conduct within the scope of 
their official duties. Thus, as we explain below, state officers 
sued in tribal court, whether under federal or tribal law, may 
assert federal immunity defenses, although the basis and 
scope of the defense may differ in the two settings. We 
agree with the courts below that the prudential tribal court 
exhaustion rule of National Farmers and Iowa Mutual ordi- 
narily should apply to those federal immunity defenses as 
they do to federal jurisdictional defenses. 

1. State officials who are sued under 42 U.S.C. 1983 for 
violations of federal statutory or constitutional rights are en- 
titled to “qualified immunity”—i.e., they are “shielded from 
liability for civil damages insofar as their conduct does not 
violate clearly established statutory or constitutional rights 
of which a reasonable person would have known.” Wilson v. 
Layne, 526 U.S. 603, 609 (1999). The same qualified immu- 
nity defense applies, as a matter of federal law, whether the 
Section 1983 action is brought in federal or state court. See 
Howlett v. Rose, 496 U.S. 356, 375 (1990) (“The elements of, 
and the defenses to, a federal cause of action are defined by 
federal law.”). The defense therefore necessarily applies in 

capacities), cert. denied, 481 U.S. 1069 (1987); 5 U.S.C. 702 (waiving 
sovereign immunity to such suits only in federal court). We assume for 
present purposes, however, that a tribal court could not entertain an 
unconsented suit against the State itself, or a suit for damages against 
state officers in their official capacities. Cf. Kiowa Tribe v. Manufactur- 
ing Tech., Inc., 523 U.S. 751 (1998) (sovereign immunity bars unconsented 
suit for damages against Tribe in state court). 

18 

tribal court as well. We do not understand respondents to 
contend otherwise. See Br. in Opp. 24-25. 

2. As to tort claims arising under tribal law that are 
asserted against state officers, an immunity defense also 
should be available, as a matter of federal law, to the extent 
that those officers acted within the scope of any state duties 
that federal law authorized them to perform on a reser- 
vation. 

10 An analogous defense should be available to tribal 
officials sued in state court on state common-law tort claims 
to the extent that they acted within the scope of their 
federally protected tribal authority. 

Such an immunity defense, based on our constitutional 
structure relating to Indian affairs, would serve an impor- 
tant federal interest: the orderly operation of a system of 
government in which the States and the Tribes, as coor- 
dinate sovereigns, occupy overlapping spheres of authority. 
Inevitably, the agents of one sovereign, in the conduct of 
their official duties, come within the adjudicatory jurisdic- 
tion of the other sovereign. It is sometimes essential that 
they do so. And they ordinarily should be able to act with 
the assurance that, if they do not exceed the scope of the 
authority granted them by their own sovereign (and any 
authority confirmed to them by the other sovereign), they 
are immune from suit in the other sovereign’s courts. 

The overlapping spheres of authority of the States and the 
Tribes are particularly evident with regard to criminal law 
enforcement on a reservation. Ordinarily, while the United 
States and the Tribe have jurisdiction over crimes involving 
Indian perpetrators or victims, the State has jurisdiction 
over crimes involving non-Indians. See, e.g., 18 U.S.C. 1152, 
1153; United States v. McBratney, 104 U.S. 621 (1881); see 

10 The Court has recognized federal common-law defenses to state 
causes of action in a variety of contexts in which important federal inter- 
ests are implicated. See, e.g., Boyle v. United Tech. Corp., 487 U.S. 500 
(1988); Westfall v. Erwin, 484 U.S. 292 (1988); see also County of Oneida 

v. Oneida Indian Nation, 470 U.S. 226, 233-236 (1985). 

19 

also Duro v. Reina, 495 U.S. 676, 680-681 n.1 (1990) (describ- 
ing the “complex patchwork of federal, state, and tribal law” 
allocating criminal jurisdiction in Indian country). On reser- 
vations covered by Public Law 280, 

11 however, the State 
exercises jurisdiction over crimes involving Indians as well 
as non-Indians (while the Tribe retains concurrent jurisdic- 
tion over crimes committed by Indians). And, pursuant to 
agreements between the United States and a State, see 
25 U.S.C. 2804, state officers may be authorized to enforce 
federal or tribal law on a reservation. Similar agreements 
may give tribal officers authority to enforce state law on a 
reservation. See also Strate, 520 U.S. at 456 n.11. 

The federal statutory scheme thus contemplates—and 
sometimes effectively requires—that state officers act with- 
in a reservation. It is a necessary incident of that scheme 
that they be entitled, as a matter of federal law, to immunity 
from suit under tribal law for acts within the scope of their 
authority. Tribal law cannot make it unlawful for state 
officers to carry out functions they have been authorized by 
federal law to perform. Indeed, Congress has specifically 
provided a degree of protection from liability for state (or 
tribal) officers performing federal law-enforcement respon- 
sibilities on a reservation pursuant to an agreement. See 
25 U.S.C. 2804(f ) (treating such state or tribal officers as fed- 
eral employees for purposes of the Federal Tort Claims Act); 
see p. 21 note 14, infra (discussing suits against federal 
employees). If the rule were otherwise, state officers could 
be deterred from entering the reservation—and thus from 
fully carrying out law-enforcement responsibilities assigned 

11 Public Law 280, 67 Stat. 588 (codified as amended at 18 U.S.C. 1162, 
25 U.S.C. 1321 et seq., and 28 U.S.C. 1360) granted certain States the 
authority to exercise criminal jurisdiction in Indian country and made 
18 U.S.C. 1152 and 1153 inapplicable in those areas. Nevada, which ini- 
tially assumed Public Law 280 jurisdiction over reservations in the State, 
has since retroceded all such jurisdiction. See 40 Fed. Reg. 27,501 (1975); 
53 Fed. Reg. 5837 (1988). 

20 

to them under federal (and state) law for the protection of 
the reservation community—for fear of being held 
personally liable in tribal court under tribal law. Similarly, 
tribal officers could be deterred from going outside the 
reservation in the course of their official duties—and thus 
from carrying out law-enforcement responsibilities they are 
authorized by federal (and tribal) law to perform—for fear of 
being held personally liable in state court under state law. 

12 

A structural immunity defense that is available, as a 
matter of federal law, to state officers sued under tribal law 
and tribal officers sued under state law serves essentially 
the same purposes as the immunity defenses that have long 
been available, under the Supremacy Clause and federal 
common law, to federal officers sought to be held criminally 
or civilly liable under state law. See, e.g., Westfall v. Erwin, 
484 U.S. 292, 296-300 (1988) (federal officers are entitled to 
absolute immunity from state-law tort suits arising out of 
discretionary acts within the scope of their official duties); In 
re Neagle, 135 U.S. 1, 75 (1890) (a federal officer “cannot be 
guilty of a crime” under state law for “an act which he was 
authorized to do by the law of the United States,” “if in doing 
that act he did no more than what was necessary and proper 
for him to do”). Such immunity defenses serve to “promot[e] 
effective government” by freeing government officials from 
the threat of liability or prosecution that could cause them to 
be “unduly timid in carrying out their official duties.” 
Westfall, 484 U.S. at 295-296. They also assure that one 
government does not enforce its own laws “in such a manner 

12 For example, in order to travel from one part of a reservation to 
another in pursuit of a fleeing suspect, a tribal police officer may need to 
drive outside the reservation. If a State were to prosecute the officer for 
exceeding the posted speed limit, or using an emergency light and siren, 
significant federal interests would be implicated. Cf. Cabazon Band of 
Mission Indians v. Smith, 34 F. Supp. 2d 1201 (C.D. Cal. 1998) (similar 
question), appeal pending, No. 99-55229 (9th Cir.). 

21 

as to paralyze the operations of the [other] government” 
within the sphere of its authority. Neagle, 135 U.S. at 62. 

13 

It is unnecessary for the Court now to “define the precise 
boundaries of official immunity” in this context. Westfall, 
484 U.S. at 299 (declining to do so in similar circumstances). 
The scope of federal immunity available to state and tribal 
officers may appropriately be informed by the scope of the 
immunity available to federal officers in similar circum- 
stances under the Constitution, federal common law, and 
federal statutes. 

14 Here, as we read the bare allegations of 
the tribal court complaints (see Pet. App. I1-I5), Hicks is 
seeking to hold petitioners liable in tort simply for executing, 
in accordance with their terms, facially valid search warrants 
that were issued by the state court and approved by the 
tribal court. We submit that, while the matter is not yet ripe 
for review in this Court, such conduct would fall well within 
the scope of the applicable immunity, whatever its precise 
boundaries. 

3. Ordinarily, with respect to federal immunity defenses, 
as with respect to federal jurisdictional defenses, tribal 

13 A number of courts have recognized that tribal officers are entitled 
to such immunity defenses. See, e.g., Boisclair v. Superior Court, 41 
Cal. 3d 1140, 1157-1158 (1990); White Mountain Apache Indian Tribe v. 
Shelley, 480 P.2d 654, 657-658 (Ariz. 1971); Turner v. Martire, 82 Cal. App. 
4th 1042 (2000); Hegner v. Dietze, 524 N.W.2d 731, 735 (Minn. Ct. App. 
1994); see also Davis v. Littell, 398 F.2d 83 (9th Cir. 1968), cert. denied, 393 
U.S. 1018 (1969). 

14 After this Court’s decision in Westfall, Congress enacted the Federal 
Employees Liability Reform and Tort Compensation Act of 1988, Pub. L. 
No. 100-694, 102 Stat. 4563, commonly known as the Westfall Act, which 
effectively confers immunity on federal employees for all common-law 
torts committed within the scope of their employment. If the Attorney 
General certifies that the employee was “acting within the scope of his 
office or employment at the time of the incident out of which the claim 
arose,” the case is removed to federal court if originally filed in state court, 
the United States is substituted as the defendant, and the case is gov- 
erned by the Federal Tort Claims Act. 28 U.S.C. 2679(d); see Gutierrez de 

Martinez v. Lamagno, 515 U.S. 417, 419-420, 430-432 (1995). 

22 

courts should be given “the first opportunity to evaluate the 
factual and legal bases for the challenge.” National Farm- 
ers, 471 U.S. at 856; see also El Paso, 526 U.S. at 485 n.7 
(noting that “the existence of a federal preemption defenses 
in the more usual sense would [not] affect the logic of tribal 
exhaustion” because, “[u]nder normal circumstances, tribal 
courts, like state courts, can and do decide questions of 
federal law”). Applying the exhaustion requirement to im- 
munity defenses would serve several of the salutary pur- 
poses identified in National Farmers, such as promoting 
“tribal self-government and self determination,” enabling the 
tribal court to consider the limits on its own authority, 
avoiding the inefficiency associated with the pendency of a 
single dispute in two judicial forums, and allowing a full 
record on relevant factual and legal issues to be developed in 
the tribal court. See 471 U.S. at 856-857. Moreover, because 
immunity defenses may also be available by reference to 
tribal law, 

15 the tribal court can consider all such defenses 
together. 

As the Court recognized in National Farmers, however, 
tribal court exhaustion is a prudential rule that may be 
dispensed with in appropriate circumstances, such as where 
it “would be futile because of the lack of an adequate 
opportunity” to raise the challenge. 471 U.S. at 856 n.21. A 
question could arise as to whether full exhaustion of tribal 
court remedies should be required if a defendant’s federal 
immunity defenses cannot be fully adjudicated in advance of 

15 For example, officials of the Fallon Paiute-Shoshone Tribe are en- 
titled to immunity “for any act performed in the course of duty or in the 
reasonable belief that such actions were within the scope of official duties, 
unless it is established that such action was taken with malicious intent or 
in bad faith.” Law & Order Code 1-10-040(a). A tribal court might con- 
clude that a comparable immunity should apply to state officials in tribal 
court, whether based on comity (cf. Littell, 398 F.2d at 86), choice of law 
(see Law & Order Code 1-30-040 (incorporating Nevada civil law)), federal 
principles of non-discrimination (cf. Davis v. Michigan Dep’t of the Trea- 
sury, 489 U.S. 803 (1989)), or other grounds. 

23 

trial. An immunity defense is “meant to give government 
officials a right, not merely to avoid standing trial, but also to 
avoid the burdens of such pretrial matters as discovery,” 
upon the favorable resolution of threshold legal issues (e.g., 
whether their alleged conduct violated clearly established 
rights). Behrens v. Pelletier, 516 U.S. 299, 308 (1996) (inter- 
nal quotation marks omitted). Arguably, at least, that pur- 
pose would be defeated if, for example, a defendant had to 
wait until after trial to obtain review, in the tribal court 
system and then in the federal court system, of the tribal 
trial court’s rejection of a federal immunity defense. In those 
circumstances, a defendant perhaps should be allowed to 
take his federal immunity defenses immediately to federal 
court, so as to preserve in a meaningful way any “entitle- 
ment not to stand trial or face the other burdens of litiga- 
tion.” Id. at 306; but see Johnson v. Fankell, 520 U.S. 911, 
916-923 (1997) (States need not provide for interlocutory 
review of qualified immunity rulings under Section 1983). 

There is, however, no need to resolve that issue here. The 
present record offers no basis to conclude that petitioners’ 
federal immunity defenses could not be adjudicated in ad- 
vance of any trial in this case. As the courts below recog- 
nized (see Pet. App. A12-A14, B16), petitioners have not yet 
asked the tribal court to decide whether they have valid 
immunity defenses to any of Hicks’s claims. Although peti- 
tioners invoked the doctrines of “sovereign immunity” and 
“qualified immunity” in the tribal court, they did so only in 
support of their contention that the tribal court lacked per- 
sonal jurisdiction over them. Id. at A13. Accordingly, we 
read the tribal courts’ rulings—such as the tribal trial court’s 
statement that “it is not prevented by * * * qualified 
immunity from lawfully exerting personal jurisdiction over” 
petitioners, id. at A12-A13—as addressing only a jurisdic- 
tional challenge. We note that the tribal trial court, in the 
severed portion of the case against the tribal defendants, did 

24 

entertain pretrial motions to dismiss on immunity grounds. 

16 

Thus, given the absence of any showing that petitioners 
could not obtain a definitive resolution of their federal 
immunity defenses in advance of any trial, petitioners should 
be required to present those defenses to the tribal court in 
the first instance. 

III. DEFENDANTS SUED IN TRIBAL COURT, LIKE 
THOSE SUED IN STATE COURT, SHOULD BE 

GIVEN THE OPPORTUNITY TO HAVE FED- 
ERAL CLAIMS AGAINST THEM ADJUDI- 
CATED IN FEDERAL COURT 

The fact that the tribal court has jurisdiction as an original 
matter over respondent Hicks’s claims against petitioners 
under federal and tribal law does not necessarily dictate that 
all of those claims must remain in tribal court. Petitioners do 
not suggest the possibility of a mechanism, parallel to 
removal, that would enable a defendant sued in tribal court 
on a federal cause of action to have the case heard in federal 
court. But we believe that such a mechanism, if requested, 
would be appropriate in the circumstances of this case. 

As noted above (at 8-9), in Iowa Mutual and National 
Farmers, the Court articulated a rule of comity that gives a 
preference to tribal courts for the adjudication in the first 
instance of claims that are brought there by Indians, involve 

16 Two of petitioners’ co-defendants—the tribal judge who approved 
the warrants and a tribal officer who participated in their execution— 
filed pretrial motions to dismiss raising immunity defenses. The tribal 
court ruled before trial that the judge was not entitled to absolute 
immunity under tribal law, but was potentially entitled to qualified immu- 
nity. Hicks v. Harold, Nos. CV-FT-91-034 and CV-FT-92-031 (Fallon 
Tribal Ct. May 18, 1992). Although the court reserved ruling on qualified 
immunity, apparently to assess whether the evidence demonstrated that 
the defendants acted with the “malicious intent” or “bad faith” that would 
defeat immunity under tribal law (see p. 22 note 15, supra), it ultimately 
granted a directed verdict on six counts on, inter alia, qualified immunity 
grounds. Decision and Order Denying All Relief As to Plaintiff ’s Second 
Amended Complaint at 4-5, Hicks v. Harold, supra (Sept. 2, 1993). 

25 

on-reservation conduct, and arise under tribal (or perhaps 
state) law. Only after tribal court procedures are exhausted 
may the federal courts review federal issues that arose in 
the case, such as whether the tribal court properly exercised 
jurisdiction over a suit against persons who were not 
members of the Tribe. See Iowa Mut., 480 U.S. at 16-19; 
National Farmers, 471 U.S. at 855-857. 

17 

A different rule would be appropriate, however, where a 
suit brought in tribal court arises directly under federal law, 
such as a suit under 42 U.S.C. 1983 alleging violations of 
federal constitutional or statutory rights. Ordinarily, when a 
defendant is sued in state court on a claim arising under 
federal law, the defendant is entitled to remove the case to 
federal court. See 28 U.S.C. 1441. As a consequence, both 
the plaintiff and the defendant have the right to insist upon 
a federal forum, rather than a state forum, for the adjudica- 
tion of a federal cause of action. 

18 

Section 1441 refers to removal only from “a State court”; 
it does not provide for removal from a tribal court. See 
Becenti v. Vigil, 902 F.2d 777, 779-780 (10th Cir. 1990) (hold- 
ing that no right exists under the federal officer removal 
statute to remove a case from tribal court). It is doubtful, 
however, that Congress intended to deny tribal court 

17 The underlying causes of action in tribal court in Iowa Mutual and 
National Farmers did not arise under federal law. The only federal 
question in those cases in federal court was whether the tribal courts had 
jurisdiction over the non-federal claims. In our view, however, other 
federal questions arising in cases brought in tribal court should also be 
subject to review in federal court. See Stock W. Corp. v. Taylor, 964 F.2d 
912, 920 (9th Cir. 1992) (en banc) (abstaining to permit tribal court to make 
choice-of-law determination in the “first instance”). 

18 A defendant, like a plaintiff, may perceive various advantages from 
the choice of a federal forum for the adjudication of federal claims. Such 
perceived advantages might include rules of procedure providing (inter 
alia) for liberal discovery, the greater availability of summary judgment, 
the right to a jury trial, geographic proximity, the greater expertise of 
federal courts in dealing with questions of federal law, and the insulation 
of life-tenured federal judges from popular pressure. 

26 

defendants the right given state court defendants to elect a 
federal forum for the adjudication of causes of action under 
federal law. It is more likely that Congress simply did not 
consider the matter. 

The Court faced an analogous situation in El Paso. The 
Price-Anderson Act converts all claims of “public liability” 
arising out of nuclear incidents into claims under federal law 
and provides for the removal of all cases raising such claims 
from state court to federal court. See 42 U.S.C. 2210(n)(2). 
But Congress was silent on the treatment of similar claims 
filed in tribal court. The Court concluded that “inadvertence 
seems the most likely” explanation for “Congress’s failure to 
provide for tribal-court removal.” 526 U.S. at 487. Accord- 
ingly, the Court held that the federal courts are entitled to 
decide, without awaiting tribal court exhaustion, whether 
claims filed in tribal court are encompassed by the Price- 
Anderson Act and, to the extent they are, to enjoin their 
prosecution. Id. at 487-488. The Court noted that Congress 
“expressed an unmistakable preference for a federal forum, 
at the behest of the defending party, both for litigating a 
Price-Anderson claim on the merits and for determining 
whether a claim falls under Price-Anderson when removal is 
contested.” Id. at 484-485. It then reasoned that an “[i]n- 
junction against further litigation in tribal courts would in 
practical terms give the same result as a removal”—i.e., “if 
[the tribal court plaintiffs] then should wish to proceed they 
would be forced to refile their claims in federal court.” Id. at 
485. 

Similarly, here, the general removal statute, 28 U.S.C. 
1441, reflects an “unmistakable preference for a federal 
forum, at the behest of the defending party,” El Paso, 526 
U.S. at 484, for adjudicating claims arising under federal law. 
Thus, in the absence of any affirmative indication that 
Congress intended to deny tribal court defendants the same 
right as state court defendants to have federal claims heard 
in federal court, tribal court defendants should be afforded 

27 

an opportunity to obtain, if necessary, an “[i]njunction 
against further litigation in tribal courts [that] would in 
practical terms give the same result as a removal.” Id. at 
485. 

19 Since removal typically operates with respect to the 
entire case—both the federal claims and any pendent state- 
law claims—such an injunction in this case could operate 
with respect to the entire case as well. In certain circum- 
stances, however, the federal court should decline to enjoin 
tribal court litigation of non-federal claims, such as where 
federal law vests exclusive jurisdiction over those claims in 
the tribal court or where the governing tribal law cannot 
readily be ascertained. Cf. 28 U.S.C. 1367(c) (identifying cir- 
cumstances in which district courts may decline to exercise 
supplemental jurisdiction); 28 U.S.C. 1441(c) (providing that 
a district court, “in its discretion, may remand all matters in 
which State law predominates”). Moreover, since a defen- 
dant’s right to remove a case from state court is lost if not 
timely asserted, see 28 U.S.C. 1446(b), the federal court may 
appropriately deny an injunction against tribal court pro- 
ceedings if it is not sought early in the case. 

20 

19 There is no occasion here to consider whether causes of action under 
federal laws that distinctly concern Indians (as distinguished from gener- 
ally applicable causes of action such as that under 42 U.S.C. 1983) should 
be allowed to remain in tribal court. 

20 In our view, a defendant’s opportunity to elect a federal forum in lieu 
of a tribal forum should not extend to cases in which federal jurisdiction 
would be based solely upon diversity of state citizenship. Cf. Iowa Mut., 
480 U.S. at 17-19. The rationale for jurisdiction in federal rather than 
state court where an in-state party may have an advantage over an out-of- 
state party in that court does not support removal from tribal court 
simply because the parties (Indian or non-Indian) happen to be from 
different States. Moreover, this Court has not suggested that the inter- 
ests served by diversity removal are as significant as the interests served 
by removal based on a federal cause of action or the defendant’s status as 
a federal officer. See Tennessee v. Davis, 100 U.S. 257, 266-267 (1880) 
(addressing importance of the two latter types of removal); see also 
28 U.S.C. 1441(b), 1446(b); United Steelworkers v. Bouligny, Inc., 382 U.S. 
145, 148 & n.6 (1965) (limits on removal in diversity cases). 

28 

The procedure that we propose would reflect no dis- 
respect of tribal courts. It would, rather, place tribal courts 
on an equal footing with state courts with respect to the 
adjudication of causes of action under federal law that are 
within the scope of their original jurisdiction but also within 
the concurrent original jurisdiction of the federal courts. See 
El Paso, 526 U.S. at 485 (observing that Price-Anderson 
Act’s provisions for preemption and removal from state 
courts demonstrate that “[a]ny generalized sense of comity 
toward nonfederal courts is obviously displaced”). As this 
Court has recognized, tribal courts, like state courts, are 
competent to adjudicate questions of federal law. See, e.g., 
id. at 485 n.7; Santa Clara Pueblo, 436 U.S. at 65. But tribal 
courts, like state courts, ordinarily have no special expertise 
with respect to those questions. Furthermore, given that a 
tribal court’s rulings on federal jurisdictional issues (and 
potentially other federal issues) are subject to subsequent 
review in federal court (see p. 25 note 17, supra), a threshold 
injunction against tribal court proceedings may be 
significantly more efficient and not significantly more 
intrusive than remitting the defendant to full tribal-court 
adjudication in the first instance would be. See El Paso, 526 
U.S. at 486 (noting “inefficiencies” that would be produced 
by “duplicative determinations” in tribal court and federal 
court regarding preemption under Price-Anderson Act). 

21 

Of course, a tribal court plaintiff remains the master of his 
complaint. Thus, a tribal court plaintiff, like a state court 
plaintiff, may amend the complaint to eliminate federal 

21 To be sure, as we explained in our brief amicus curiae in El Paso (at 
25 n.13), the justification for displacing tribal courts upon the defendant’s 
election in cases encompassed by the Price-Anderson Act is stronger than 
the justification for displacing tribal courts upon the defendant’s election 
in federal question cases generally. Nevertheless, we believe that the 
clear policy, codified in 28 U.S.C. 1441, of affording the defendant in a case 
arising under federal law the opportunity to have the case heard in federal 
court supports the same approach in this setting. 

29 

claims, and thereby avoid adjudication of the entire case 
(including any pendent claims under tribal law) in federal 
court. 

22 

It is uncertain how the parties to this case would respond 
to the availability of a mechanism, parallel to removal under 
28 U.S.C. 1441(a), that would enable the case, as currently 
pleaded, to be tried in federal court rather than tribal court. 
If this Court recognizes such a mechanism, and if petitioners 
elect to invoke it, they should first be required to notify the 
tribal court of their intention to do so. Such an approach 
would exhibit an appropriate deference to the tribal court, 
which could elect to stay its own hand pending the plaintiff ’s 
refiling of the case in federal court. It would also afford the 
plaintiff an opportunity to amend the complaint to eliminate 
any federal causes of action before the commencement of a 
federal injunctive action, thereby sparing all parties the 

22 If a suit were to be brought in tribal court against federal officials in 
their personal capacities, several other statutory provisions would be rele- 
vant. First, the exclusive remedy for common-law torts committed by fed- 
eral officers or employees within the scope of their office or employment is 
a Federal Tort Claims Act suit against the United States in federal dis- 
trict court. 28 U.S.C. 2679(b). Such cases may be removed from state to 
federal court upon certification by the Attorney General. See 28 U.S.C. 
2679(d)(2); p. 21 note 14, supra (discussing Westfall Act). A tribal court, 
like a state court, is thus precluded, as a matter of controlling federal law, 
from providing any alternative remedy. Second, in addition to the right of 
all defendants to remove a case from state court to federal court based on 
the existence of a federal cause of action, a federal officer also has a right 
to remove a case (even one not arising under federal law) based on his 
status as such, as long as the officer asserts a colorable immunity or other 
federal defense. 28 U.S.C. 1442 (1994 & Supp. IV 1998); Mesa v. Califor- 
nia, 489 U.S. 121 (1989). A federal officer therefore should be entitled to 
obtain an injunction against tribal court proceedings based on the asser- 
tion of such a defense. Finally, because of the status of the Tribes as de- 
pendent sovereigns within the federal system, additional considerations 
may apply to the exercise of tribal court jurisdiction over federal officers 
even when sued in their personal capacities. We thus do not foresee any 
circumstances in which a plaintiff could plead a cause of action in tribal 
court against a federal officer for acts within the scope of his office that 
could not be enjoined by a federal court. 

30 

unnecessary costs of filing and responding to an action in 
federal court. 

23 Accordingly, while the mechanism that we 
propose could ultimately provide petitioners with a sub- 
stantial measure of the relief that they sought in the district 
court if they choose to invoke it, we do not believe that 
approval of that mechanism by the Court here would require 
an alteration of the judgment below, which simply defers to 
the tribal court’s initial exercise of jurisdiction in the current 
posture of the case. 

CONCLUSION 

The judgment of the court of appeals should be affirmed, 
without prejudice to petitioners’ timely invocation of the 
procedure discussed in Part III of this brief. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 
LOIS J. SCHIFFER 

Assistant Attorney General 
EDWIN S. KNEEDLER 

Deputy Solicitor General 
BARBARA MCDOWELL 

Assistant to the Solicitor 

General 
DAVID C. SHILTON 
WILLIAM B. LAZARUS 
LISA E. JONES 

Attorneys 

JANUARY 2001 

23 No similar justification existed in El Paso for allowing the tribal 
court plaintiffs an opportunity to replead their claims. Claims asserting 
liability for a “nuclear incident,” even if pleaded under state law, are 
deemed to be federal claims under the Price-Anderson Act. See 562 U.S. 
at 477, 484.