PLAINS COMMERCE BANK v. LONG FAMILY LAND & CATTLE CO., INC., et al.

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Syllabus
PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO., INC., et al.
certiorari to the united states court of appeals for
the eighth circuit
No. 07–411. Argued April 14, 2008—Decided June 25, 2008
Petitioner Plains Commerce Bank (Bank), a non-Indian bank, sold land it
owned in fee simple on a tribal reservation to non-Indians. Respond
ents the Longs, an Indian couple who had been leasing the land with an
option to purchase, claim the Bank discriminated against them by selling
the parcel to nonmembers of the Tribe on terms more favorable than
the Bank offered to sell it to them. The couple sued in Tribal Court,
asserting, inter alia, discrimination, breach-of-contract, and bad-faith
claims. Over the Bank’s objection, the Tribal Court concluded that it
had jurisdiction and proceeded to trial, where a jury ruled against the
Bank on three claims, including the discrimination claim. The court
awarded the Longs damages plus interest. In a supplemental judg
ment, the court also gave the Longs an option to purchase that portion
of the fee land they still occupied, nullifying the Bank’s sale of the land
to non-Indians. After the Tribal Court of Appeals affirmed, the Bank
filed suit in Federal District Court, contending that the tribal judgment
was null and void because, as relevant here, the Tribal Court lacked
jurisdiction over the Longs’ discrimination claim. The District Court
granted the Longs summary judgment, finding tribal court jurisdiction
proper because the Bank’s consensual relationship with the Longs and
their company (also a respondent here) brought the Bank within the
first category of tribal civil jurisdiction over nonmembers outlined in
Montana v. United States, 450 U. S. 544. The Eighth Circuit affirmed,
concluding that the Tribe had authority to regulate the business conduct
of persons voluntarily dealing with tribal members, including a non
member’s sale of fee land.
Held:
1. The Bank has Article III standing to pursue this challenge. Both
with respect to damages and the option to purchase, the Bank was “in
jured in fact,” see Lujan v. Defenders of Wildlife, 504 U. S. 555, 560, by
the Tribal Court’s exercise of jurisdiction over the discrimination claim.
This Court is unpersuaded by the Longs’ claim that the damages award
was premised entirely on their breach-of-contract verdict, which the
Bank has not challenged, rather than on their discrimination claim. Be
cause the verdict form allowed the jury to make a damages award after

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finding liability as to any of the individual claims, the jury could have
based its damages award, in whole or in part, on the discrimination
finding. The Bank was also injured by the option to purchase. Only
the Longs’ discrimination claim sought deed to the land as relief. The
fact that the remedial purchase option applied only to a portion of the
total parcel does not eliminate the injury to the Bank, which had no
obligation to sell any of the land to the Longs before the Tribal Court’s
judgment. That judgment effectively nullified a portion of the sale to
a third party. These injuries can be remedied by a ruling that the
Tribal Court lacked jurisdiction and that its judgment on the discrimina
tion claim is null and void. Pp. 324–327.
2. The Tribal Court did not have jurisdiction to adjudicate a discrimi
nation claim concerning the non-Indian Bank’s sale of its fee land.
Pp. 327–342.
(a) The general rule that tribes do not possess authority over non-
Indians who come within their borders, Montana v. United States,
supra, at 565, restricts tribal authority over nonmember activities tak
ing place on the reservation, and is particularly strong when the non
member’s activity occurs on land owned in fee simple by non-Indians,
Strate v. A–1 Contractors, 520 U. S. 438, 446. Once tribal land is con
verted into fee simple, the tribe loses plenary jurisdiction over it. See
County of Yakima v. Confederated Tribes and Bands of Yakima Na
tion, 502 U. S. 251, 267–268. Moreover, when the tribe or its members
convey fee land to third parties, the tribe “loses any former right of
absolute and exclusive use and occupation of the conveyed lands.”
South Dakota v. Bourland, 508 U. S. 679, 689. Thus, “the tribe has
no authority itself . . . to regulate the use of fee land.” Brendale v.
Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 430.
Montana provides two exceptions under which tribes may exercise
“civil jurisdiction over non-Indians on their reservations, even on non-
Indian fee lands,” 450 U. S., at 565: (1) “A tribe may regulate, through
taxation, licensing, or other means, the activities of nonmembers who
enter consensual relationships with the tribe or its members, through
commercial dealing, contracts, leases, or other arrangements,” ibid.; and
(2) a tribe may exercise “civil authority over the conduct of non-Indians
on fee lands within the reservation when that conduct threatens or has
some direct effect on the political integrity, the economic security, or
the health or welfare of the tribe,” id., at 566. Neither exception au
thorizes tribal courts to exercise jurisdiction over the Longs’ discrimina
tion claim. Pp. 327–330.
(b) The Tribal Court lacks jurisdiction to hear that claim because
the Tribe lacks the civil authority to regulate the Bank’s sale of its fee
land, and “a tribe’s adjudicative jurisdiction does not exceed its legisla

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tive jurisdiction,” Strate, supra, at 453. Montana does not permit
tribes to regulate the sale of non-Indian fee land. Rather, it permits
tribal regulation of nonmember conduct inside the reservation that im
plicates the tribe’s sovereign interests. 450 U. S., at 564–565. With
only one exception, see Brendale, supra, this Court has never “upheld
under Montana the extension of tribal civil authority over nonmembers
on non-Indian land,” Nevada v. Hicks, 533 U. S. 353, 360. Nor has the
Court found that Montana authorized a tribe to regulate the sale of
such land. This makes good sense, given the limited nature of tribal
sovereignty and the liberty interests of nonmembers. Tribal sovereign
interests are confined to managing tribal land, see Worcester v. Georgia,
6 Pet. 515, 561, protecting tribal self-government, and controlling inter
nal relations, see Montana, supra, at 564. Regulations approved under
Montana all flow from these limited interests. See, e. g., Duro v.
Reina, 495 U. S. 676, 696. None of these interests justified tribal regu
lation of a nonmember’s sale of fee land. The Tribe cannot justify regu
lation of the sale of non-Indian fee land by reference to its power to
superintend tribal land because non-Indian fee parcels have ceased to
be tribal land. Nor can regulation of fee land sales be justified by the
Tribe’s interest in protecting internal relations and self-government.
Any direct harm sustained because of a fee land sale is sustained at the
point the land passes from Indian to non-Indian hands. Resale, by it
self, causes no additional damage. Regulating fee land sales also runs
the risk of subjecting nonmembers to tribal regulatory authority with
out their consent. Because the Bill of Rights does not apply to tribes
and because nonmembers have no say in the laws and regulations gov
erning tribal territory, tribal laws and regulations may be applied only
to nonmembers who have consented to tribal authority, expressly or by
action. Even then the regulation must stem from the tribe’s in
herent sovereign authority to set conditions on entry, preserve self
government, or control internal relations. There is no reason the Bank
should have anticipated that its general business dealings with the
Longs would permit the Tribe to regulate the Bank’s sale of land it
owned in fee simple. The Longs’ attempt to salvage their position by
arguing that the discrimination claim should be read to challenge the
Bank’s whole course of commercial dealings with them is unavailing.
Their breach-of-contract and bad-faith claims involve the Bank’s general
dealings; the discrimination claim does not. The discrimination claim
is tied specifically to the fee land sale. And only the discrimination
claim is before the Court. Pp. 330–340.
(c) Because the second Montana exception stems from the same
sovereign interests giving rise to the first, it is also inapplicable here.

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The “conduct” covered by that exception must do more than injure a
tribe; it must “imperil the subsistence” of the tribal community. Mon
tana, 450 U. S., at 566. The land at issue has been owned by a non-
Indian party for at least 50 years. Its resale to another non-Indian
hardly “imperil[s] the subsistence or welfare of the tribe.” Ibid.
Pp. 340–341.
(d) Contrary to the Longs’ argument, when the Bank sought the
Tribal Court’s aid in serving process on the Longs for the Bank’s pend
ing state-court eviction action, the Bank did not consent to tribal court
jurisdiction over the discrimination claim. The Bank has consistently
contended that the Tribal Court lacked jurisdiction. Pp. 341–342.
491 F. 3d 878, reversed.
Roberts, C. J., delivered the opinion of the Court, in which Scalia,
Kennedy, Thomas, and Alito, JJ., joined, and in which Stevens, Sou
ter, Ginsburg, and Breyer, JJ., joined as to Part II. Ginsburg, J.,
filed an opinion concurring in part, concurring in the judgment in part,
and dissenting in part, in which Stevens, Souter, and Breyer, JJ.,
joined, post, p. 342.
Paul A. Banker argued the cause for petitioner. With
him on the briefs were Robert V. Atmore and David A.
Von Wald.
David C. Frederick argued the cause for respondents.
With him on the brief were Richard A. Guest, Melody L.
McCoy, James P. Hurley, Michael F. Sturley, and Lynn E.
Blais.
Curtis E. Gannon argued the cause for the United States
as amicus curiae in support of respondents. With him on
the brief were former Solicitor General Clement, Assistant
Attorney General Tenpas, Deputy Solicitor General Kneed
ler, David C. Shilton, William B. Lazarus, and Amber B.
Blaha.*
*Briefs of amici curiae urging reversal were filed for the State of Idaho
et al. by Lawrence G. Wasden, Attorney General of Idaho, and Clay R.
Smith, Deputy Attorney General, and by the Attorneys General for their
respective States as follows: Talis J. Colberg of Alaska, Bill McCollum of
Florida, Wayne Stenehjem of North Dakota, W. A. Drew Edmondson of
Oklahoma, Larry Long of South Dakota, Mark L. Shurtleff of Utah, Rob
ert M. McKenna of Washington, and J. B. Van Hollen of Wisconsin; for

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320 PLAINS COMMERCE BANK v. LONG FAMILY LAND &
CATTLE CO.
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Court.
This case concerns the sale of fee land on a tribal reserva
tion by a non-Indian bank to non-Indian individuals. Fol
lowing the sale, an Indian couple, customers of the bank who
had defaulted on their loans, claimed the bank discriminated
against them by offering the land to non-Indians on terms
more favorable than those the bank offered to them. The
couple sued on that claim in Tribal Court; the bank contested
the court’s jurisdiction. The Tribal Court concluded that it
had jurisdiction and proceeded to hear the case. It ulti
mately ruled against the bank and awarded the Indian couple
damages and the right to purchase a portion of the fee land.
The question presented is whether the Tribal Court had ju
risdiction to adjudicate a discrimination claim concerning the
non-Indian bank’s sale of fee land it owned. We hold that
it did not.
I
The Long Family Land and Cattle Company, Inc. (Long
Company or Company), is a family-run ranching and farming
operation incorporated under the laws of South Dakota. Its
lands are located on the Cheyenne River Sioux Indian Reser
vation. Once a massive, 60-million acre affair, the reserva-
Idaho County, Idaho, et al. by Scott Gregory Knudson, Tom D. Tobin, and
Kimron Torgerson; for the American Bankers Association et al. by Brett
Koenecke and Timothy M. Engel; for the Association of American Rail
roads by Lynn H. Slade, Walter E. Stern III, and Daniel Saphire; and for
the Mountain States Legal Foundation by J. Scott Detamore and William
Perry Pendley.
Briefs of amici curiae urging affirmance were filed for the Cheyenne
River Sioux Tribe by Mark I. Levy, Keith M. Harper, Thomas J. Van
Norman, and Roger K. Heidenreich; for the National American Indian
Court Judges Association et al. by William R. Stein, Roberta Koss, Steven
Paul McSloy, Jill E. Tompkins, and Rob Roy Smith; for the National
Congress of American Indians et al. by Carter G. Phillips, Virginia A.
Seitz, and Riyaz A. Kanji; and for the National Network to End Domestic
Violence et al. by Fernando R. Laguarda and Timothy J. Simeone.

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tion was appreciably diminished by Congress in the 1880’s
and at present consists of roughly 11 million acres located in
Dewey and Ziebach Counties in north-central South Dakota.
The Long Company is a respondent here, along with Ronnie
and Lila Long, husband and wife, who together own at least
51 percent of the Company’s shares. Ronnie and Lila Long
are both enrolled members of the Cheyenne River Sioux In
dian Tribe.
The Longs and their Company have been customers for
many years at Plains Commerce Bank (Bank), located some
25 miles off the reservation as the crow flies in Hoven, South
Dakota. The Bank, like the Long Company, is a South Da
kota corporation, but has no ties to the reservation other
than its business dealings with tribal members. The Bank
made its first commercial loan to the Long Company in 1989,
and a series of agreements followed. As part of those
agreements, Kenneth Long—Ronnie Long’s father and a
non-Indian—mortgaged to the Bank 2,230 acres of fee land
he owned inside the reservation. At the time of Kenneth
Long’s death in the summer of 1995, Kenneth and the Long
Company owed the Bank $750,000.
In the spring of 1996, Ronnie and Lila Long began negoti
ating a new loan contract with the Bank in an effort to shore
up their Company’s flagging financial fortunes and come to
terms with their outstanding debts. After several months
of back-and-forth, the parties finally reached an agreement
in December of that year—two agreements, to be precise.
The Company and the Bank signed a fresh loan contract,
according to which Kenneth Long’s estate deeded over the
previously mortgaged fee acreage to the Bank in lieu of fore
closure. App. 104. In return, the Bank agreed to cancel
some of the Company’s debt and to make additional operat
ing loans. The parties also agreed to a lease arrangement:
The Company received a two-year lease on the 2,230 acres,
deeded over to the Bank, with an option to purchase the land
at the end of the term for $468,000. Id., at 96–103.

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It is at this point, the Longs claim, that the Bank began
treating them badly. The Longs say the Bank initially of
fered more favorable purchase terms in the lease agreement,
allegedly proposing to sell the land back to the Longs with
a 20-year contract for deed. The Bank eventually rescinded
that offer, the Longs claim, citing “ ‘possible jurisdictional
problems’ ” that might have been caused by the Bank financ
ing an “ ‘Indian owned entity on the reservation.’ ” 491 F.
3d 878, 882 (CA8 2007) (case below).
Then came the punishing winter of 1996–1997. The Longs
lost over 500 head of cattle in the blizzards that season, with
the result that the Long Company was unable to exercise its
option to purchase the leased acreage when the lease con
tract expired in 1998. Nevertheless, the Longs refused to
vacate the property, prompting the Bank to initiate eviction
proceedings in state court and to petition the Cheyenne
River Sioux Tribal Court to serve the Longs with a notice
to quit. In the meantime, the Bank sold 320 acres of the fee
land it owned to a non-Indian couple. In June 1999, while
the Longs continued to occupy a 960-acre parcel of the land,
the Bank sold the remaining 1,910 acres to two other
nonmembers.
In July 1999, the Longs and the Long Company filed suit
against the Bank in the Tribal Court, seeking an injunction
to prevent their eviction from the property and to reverse
the sale of the land. They asserted a variety of claims, in
cluding breach of contract, bad faith, violation of tribal-law
self-help remedies, and discrimination. The discrimination
claim alleged that the Bank sold the land to nonmembers on
terms more favorable than those offered the Company. The
Bank asserted in its answer that the court lacked jurisdiction
and also stated a counterclaim. The Tribal Court found that
it had jurisdiction, denied the Bank’s motion for summary
judgment on its counterclaim, and proceeded to trial. Four
causes of action were submitted to the seven-member jury:

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breach of contract, bad faith, violation of self-help remedies,
and discrimination.
The jury found for the Longs on three of the four causes,
including the discrimination claim, and awarded a $750,000
general verdict. After denying the Bank’s post-trial motion
for judgment notwithstanding the verdict by finding again
that it had jurisdiction to adjudicate the Longs’ claims, the
Tribal Court entered judgment awarding the Longs $750,000
plus interest. A later supplemental judgment further
awarded the Longs an option to purchase the 960 acres of the
land they still occupied on the terms offered in the original
purchase option, effectively nullifying the Bank’s previous
sale of that land to non-Indians.
The Bank appealed to the Cheyenne River Sioux Tribal
Court of Appeals, which affirmed the judgment of the trial
court. The Bank then filed the instant action in the United
States District Court for the District of South Dakota, seek
ing a declaration that the tribal judgment was null and void
because, as relevant here, the Tribal Court lacked jurisdic
tion over the Longs’ discrimination claim. The District
Court granted summary judgment to the Longs. The court
found tribal court jurisdiction proper because the Bank had
entered into a consensual relationship with the Longs and
the Long Company. 440 F. Supp. 2d 1070, 1077–1078, 1080–
1081 (2006). According to the District Court, this relation
ship brought the Bank within the first category of tribal civil
jurisdiction over nonmembers outlined in Montana v. United
States, 450 U. S. 544 (1981). See 440 F. Supp. 2d, at 1077–
1078.
The Court of Appeals for the Eighth Circuit affirmed.
491 F. 3d 878. The Longs’ discrimination claim, the court
held, “arose directly from their preexisting commercial rela
tionship with the bank.” Id., at 887. When the Bank chose
to deal with the Longs, it effectively consented to substan
tive regulation by the Tribe: An antidiscrimination tort claim

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was just another way of regulating the commercial transac
tions between the parties. See ibid. In sum, the Tribe had
authority to regulate the business conduct of persons who
“voluntarily deal with tribal members,” including, here, a
nonmember’s sale of fee land. Ibid.
We granted certiorari, 552 U. S. 1087 (2008), and now
reverse.
II
Before considering the Tribal Court’s authority to adjudi
cate the discrimination claim, we must first address the
Longs’ contention that the Bank lacks standing to raise this
jurisdictional challenge in the first place. Though the Longs
raised their standing argument for the first time before this
Court, we bear an independent obligation to assure ourselves
that jurisdiction is proper before proceeding to the merits.
See Steel Co. v. Citizens for Better Environment, 523 U. S.
83, 94–95 (1998).
We begin by noting that whether a tribal court has adjudi
cative authority over nonmembers is a federal question.
See Iowa Mut. Ins. Co. v. LaPlante, 480 U. S. 9, 15 (1987);
National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S.
845, 852–853 (1985). If the tribal court is found to lack such
jurisdiction, any judgment as to the nonmember is necessar
ily null and void. The Longs do not contest this settled
principle but argue instead that the Bank has suffered
no “injury in fact” as required by Article III’s case-or
controversy provision. See Lujan v. Defenders of Wildlife,
504 U. S. 555, 560 (1992).
The Longs appear to recognize their argument is some
what counterintuitive. They concede the jury found the
Bank guilty of discrimination and awarded them $750,000
plus interest. But the Longs contend the jury’s damages
award was in fact premised entirely on their breach-of
contract rather than on their discrimination claim. The
Bank does not presently challenge the breach-of-contract
verdict.

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In support of their argument, the Longs point to their
amended complaint in the Tribal Court. The complaint
comprised nine counts. Several of the counts sought dam
ages; the discrimination count did not. As relief for the dis
crimination claim, the Longs asked to be granted “possession
and title to their land.” App. 173. The Longs contend that
the damages award therefore had nothing to do with the dis
crimination claim. As a result, a decision from this Court
finding no jurisdiction with respect to that claim—the only
claim the Bank appeals—would not change anything.
We are not persuaded. The jury verdict form consisted
of six special interrogatories, covering each claim asserted
against the Bank, with another one covering the amount of
damages to be awarded. Id., at 190–192. The damages in
terrogatory specifically allowed the jury to make an award
after finding liability as to any of the individual claims: “If
you answered yes to Numbers 1, 3, 4, or 5 what amount of
damages should be awarded to the Plaintiffs?” Id., at 192
(emphasis added). The jury found against the Bank on three
of the special interrogatories, including number 4, the dis
crimination claim. The Bank, the jurors found, “intention
ally discriminate[d] against the Plaintiffs Ronnie and Lila
Long.” Id., at 191. The jury then entered an award of
$750,000. Id., at 192. These facts establish that the jury
could have based its damages award, in whole or in part, on
the finding of discrimination.
There is, in addition, the option to purchase. The Longs
argue that requiring the Bank to void the sale to nonmem
bers of a 960-acre parcel and sell that parcel to them instead
does not constitute injury in fact, because the Tribal Court
actually denied the relief the Longs sought for the Bank’s
discrimination. In its supplemental judgment, the Tribal
Court refused to permit the Longs (or the Long Company)
to purchase all the land—as they had requested—instead
granting an option to purchase only the 960 acres the Longs
occupied at the time. See Supplemental Judg ment in

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No. R–120–99, Long Family Land & Cattle Co. v. Maciejew
ski (Feb. 18, 2003), App. to Pet. for Cert. A–69 to A–70.
Even this partial relief, the Longs insist, was crafted as an
equitable remedy for their breach-of-contract claim, see
Brief for Respondents 32–34, and in any event the Bank
really suffered no harm, because it would gain as much in
come selling to the Longs as it did selling to the nonmem
bers, see id., at 34–35.
These arguments do not defeat the Bank’s standing. The
Longs requested, as a remedy for the alleged discrimination,
“possession and title” to the subject land. App. 173. They
received an option to acquire a portion of exactly that. See
App. to Pet. for Cert. A–69 to A–70. The Tribal Court’s
silence in its supplemental judgment as to which claim, ex
actly, the option to purchase was meant to remedy is immate
rial. See ibid. Of the four claims presented to the jury,
only the discrimination claim sought deed to the land as re
lief. See Amended Complaint (Jan. 3, 2000), App. 158, 173.
Nor does the fact that the remedial purchase option applied
only to a portion of the total parcel eliminate the Bank’s in
jury. The Bank had no obligation to sell the land to the
Longs before the Tribal Court’s judgment—indeed, the Bank
had already sold the acreage to third parties. The Tribal
Court judgment effectively nullified a portion of that sale.
This judicially imposed burden certainly qualifies as an in
jury for standing purposes. As for the Longs’ speculation
that the Bank would make as much money selling the land
to them as it did selling the parcel to nonmembers, the ar
gument is entirely beside the point. There is more than
adequate injury in being compelled to undo one deed and
enter into another—particularly with individuals who had
previously defaulted on loans.
Both with respect to damages and the option to purchase,
the Bank was injured by the Tribal Court’s exercise of juris
diction over the discrimination claim. Those injuries can be
remedied by a ruling in favor of the Bank that the Tribal

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Court lacked jurisdiction and that its judgment on the dis
crimination claim is null and void. The ultimate collateral
consequence of such a determination, whatever it may be—
vacatur of the general damages award, vacatur of the option
to purchase, a new trial on the other claims—does not alter
the fact that the Bank has shown injury traceable to the
challenged action and likely to be redressed by a favorable
ruling. Allen v. Wright, 468 U. S. 737, 751 (1984). The
Bank has Article III standing to pursue this challenge.
III
A
For nearly two centuries now, we have recognized Indian
tribes as “distinct, independent political communities,”
Worcester v. Georgia, 6 Pet. 515, 559 (1832), qualified to
exercise many of the powers and prerogatives of self
government, see United States v. Wheeler, 435 U. S. 313,
322–323 (1978). We have frequently noted, however, that
the “sovereignty that the Indian tribes retain is of a unique
and limited character.” Id., at 323. It centers on the land
held by the tribe and on tribal members within the reserva
tion. See United States v. Mazurie, 419 U. S. 544, 557 (1975)
(tribes retain authority to govern “both their members and
their territory,” subject ultimately to Congress); see also Ne
vada v. Hicks, 533 U. S. 353, 392 (2001) (O’Connor, J., concur
ring in part and concurring in judgment) (“[T]ribes retain
sovereign interests in activities that occur on land owned and
controlled by the tribe”).
As part of their residual sovereignty, tribes retain power
to legislate and to tax activities on the reservation, including
certain activities by nonmembers, see Kerr-McGee Corp. v.
Navajo Tribe, 471 U. S. 195, 201 (1985), to determine tribal
membership, see Santa Clara Pueblo v. Martinez, 436 U. S.
49, 55 (1978), and to regulate domestic relations among mem
bers, see Fisher v. District Court of Sixteenth Judicial Dist.
of Mont., 424 U. S. 382, 387–389 (1976) (per curiam). They

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may also exclude outsiders from entering tribal land. See
Duro v. Reina, 495 U. S. 676, 696–697 (1990). But tribes do
not, as a general matter, possess authority over non-Indians
who come within their borders: “[T]he inherent sovereign
powers of an Indian tribe do not extend to the activities of
nonmembers of the tribe.” Montana, 450 U. S., at 565. As
we explained in Oliphant v. Suquamish Tribe, 435 U. S. 191
(1978), the tribes have, by virtue of their incorporation into
the American republic, lost “the right of governing . . . per
son[s] within their limits except themselves.” Id., at 209
(emphasis deleted; internal quotation marks omitted).
This general rule restricts tribal authority over nonmem
ber activities taking place on the reservation, and is particu
larly strong when the nonmember’s activity occurs on land
owned in fee simple by non-Indians—what we have called
“non-Indian fee land.” Strate v. A–1 Contractors, 520 U. S.
438, 446 (1997) (internal quotation marks omitted). Thanks
to the Indian General Allotment Act of 1887, 24 Stat. 388, as
amended, 25 U. S. C. § 331 et seq., there are millions of acres
of non-Indian fee land located within the contiguous borders
of Indian tribes. See Atkinson Trading Co. v. Shirley, 532
U. S. 645, 648, 650, n. 1 (2001). The history of the General
Allotment Act and its successor statutes has been well re
hearsed in our precedents. See, e. g., Montana, supra, at
558–563; County of Yakima v. Confederated Tribes and
Bands of Yakima Nation, 502 U. S. 251, 254–255 (1992).
Suffice it to say here that the effect of the Act was to convert
millions of acres of formerly tribal land into fee simple par
cels, “fully alienable,” id., at 264, and “free of all charge or
incumbrance whatsoever,” 25 U. S. C. § 348 (2000 ed., Supp.
V). See F. Cohen, Handbook of Federal Indian Law
§ 16.03[2][b], pp. 1041–1042 (2005 ed.) (hereinafter Cohen).
Our cases have made clear that once tribal land is con
verted into fee simple, the tribe loses plenary jurisdiction
over it. See County of Yakima, supra, at 267–268 (General
Allotment Act permits Yakima County to impose ad valorem

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tax on fee land located within the reservation); Goudy v.
Meath, 203 U. S. 146, 149–150 (1906) (by rendering allotted
lands alienable, General Allotment Act exposed them to state
assessment and forced sale for taxes); In re Heff, 197 U. S.
488, 502–503 (1905) (fee land subject to plenary state juris
diction upon issuance of trust patent (superseded by the
Burke Act, 34 Stat. 182, 25 U. S. C. § 349 (2000 ed.))).
Among the powers lost is the authority to prevent the land’s
sale, see County of Yakima, supra, at 263 (General Allot
ment Act granted fee holders power of voluntary sale)—not
surprisingly, as “free alienability” by the holder is a core
attribute of the fee simple, C. Moynihan, Introduction to Law
of Real Property § 3, p. 32 (2d ed. 1988). Moreover, when
the tribe or tribal members convey a parcel of fee land “to
non-Indians, [the tribe] loses any former right of absolute
and exclusive use and occupation of the conveyed lands.”
South Dakota v. Bourland, 508 U. S. 679, 689 (1993) (empha
sis added). This necessarily entails “the loss of regulatory
jurisdiction over the use of the land by others.” Ibid. As
a general rule, then, “the tribe has no authority itself, by
way of tribal ordinance or actions in the tribal courts, to
regulate the use of fee land.” Brendale v. Confederated
Tribes and Bands of Yakima Nation, 492 U. S. 408, 430
(1989) (opinion of White, J.).
We have recognized two exceptions to this principle, cir
cumstances in which tribes may exercise “civil jurisdiction
over non-Indians on their reservations, even on non-Indian
fee lands.” Montana, 450 U. S., at 565. First, “[a] tribe
may regulate, through taxation, licensing, or other means,
the activities of nonmembers who enter consensual relation
ships with the tribe or its members, through commercial
dealing, contracts, leases, or other arrangements.” Ibid.
Second, a tribe may exercise “civil authority over the con
duct of non-Indians on fee lands within the reservation when
that conduct threatens or has some direct effect on the politi
cal integrity, the economic security, or the health or welfare

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of the tribe.” Id., at 566. These rules have become known
as the Montana exceptions, after the case that elaborated
them. By their terms, the exceptions concern regulation of
“the activities of nonmembers” or “the conduct of non-
Indians on fee land.”
Given Montana’s “ ‘general proposition that the inherent
sovereign powers of an Indian tribe do not extend to the
activities of nonmembers of the tribe,’ ” Atkinson, supra, at
651 (quoting Montana, supra, at 565), efforts by a tribe to
regulate nonmembers, especially on non-Indian fee land, are
“presumptively invalid,” Atkinson, supra, at 659. The bur
den rests on the tribe to establish one of the exceptions to
Montana’s general rule that would allow an extension of
tribal authority to regulate nonmembers on non-Indian fee
land. Atkinson, 532 U. S., at 654. These exceptions are
“limited” ones, id., at 647, and cannot be construed in a man
ner that would “swallow the rule,” id., at 655, or “severely
shrink” it, Strate, 520 U. S., at 458. The Bank contends that
neither exception authorizes tribal courts to exercise juris
diction over the Longs’ discrimination claim at issue in this
case. We agree.
B
According to our precedents, “a tribe’s adjudicative juris
diction does not exceed its legislative jurisdiction.” Id., at
453. We reaffirm that principle today and hold that the
Tribal Court lacks jurisdiction to hear the Longs’ discrimina
tion claim because the Tribe lacks the civil authority to regu
late the Bank’s sale of its fee land.
The Longs’ discrimination claim challenges a non-Indian’s
sale of non-Indian fee land. Despite the Longs’ attempt to
recharacterize their claim as turning on the Bank’s alleged
“failure to pay to respondents loans promised for cattle
raising on tribal trust land,” Brief for Respondents 47, in
fact the Longs brought their discrimination claim “seeking
to have the land sales set aside on the ground that the sale
to nonmembers ‘on terms more favorable’ than the bank had

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extended to the Longs” violated tribal tort law, 491 F. 3d, at
882 (quoting Plaintiffs’ Amended Complaint, App. 173). See
also Brief for United States as Amicus Curiae 7. That dis
crimination claim thus concerned the sale of a 2,230-acre fee
parcel that the Bank had acquired from the estate of a
non-Indian.
The status of the land is relevant “insofar as it bears on
the application of . . . Montana’s exceptions to [this] case.”
Hicks, 533 U. S., at 376 (Souter, J., concurring). The acres
at issue here were alienated from the Cheyenne River
Sioux’s tribal trust and converted into fee simple parcels as
part of the Act of May 27, 1908, 35 Stat. 312, commonly called
the 1908 Allotment Act. See Brief for Respondents 4, n. 2.
While the General Allotment Act provided for the division
of tribal land into fee simple parcels owned by individual
tribal members, that Act also mandated that such allotments
would be held in trust for their owners by the United States
for a period of 25 years—or longer, at the President’s discre
tion—during which time the parcel owners had no authority
to sell or convey the land. See 25 U. S. C. § 348 (2000 ed.,
and Supp. V). The 1908 Act released particular Indian own
ers from these restrictions ahead of schedule, vesting in
them full fee ownership. See § 1, 35 Stat. 312. In 1934,
Congress passed the Indian Reorganization Act, 48 Stat. 984,
25 U. S. C. § 461 et seq., which “pu[t] an end to further allot
ment of reservation land,” but did not “return allotted land
to pre-General Allotment Act status, leaving it fully alien
able by the allottees, their heirs, and assigns.” County of
Yakima, 502 U. S., at 264.
The tribal tort law the Longs are attempting to enforce,
however, operates as a restraint on alienation. It “set[s]
limits on how nonmembers may engage in commercial trans
actions,” 491 F. 3d, at 887—and not just any transactions,
but specifically nonmembers’ sale of fee lands they own. It
regulates the substantive terms on which the Bank is able to
offer its fee land for sale. Respondents and their principal

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amicus, the United States, acknowledge that the tribal tort
at issue here is a form of regulation. See Brief for Respond
ents 52; Brief for United States as Amicus Curiae 25–26;
see also Riegel v. Medtronic, Inc., 552 U. S. 312, 324 (2008).
They argue the regulation is fully authorized by the first
Montana exception. They are mistaken.
Montana does not permit Indian tribes to regulate the
sale of non-Indian fee land. Montana and its progeny per
mit tribal regulation of nonmember conduct inside the reser
vation that implicates the tribe’s sovereign interests. Mon
tana expressly limits its first exception to the “activities
of nonmembers,” 450 U. S., at 565, allowing these to be
regulated to the extent necessary “to protect tribal self
government [and] to control internal relations,” id., at 564.
See Big Horn Cty. Elec. Cooperative, Inc. v. Adams, 219
F. 3d 944, 951 (CA9 2000) (“Montana does not grant a tribe
unlimited regulatory or adjudicative authority over a non
member. Rather, Montana limits tribal jurisdiction under
the first exception to the regulation of the activities of
nonmembers” (internal quotation marks omitted; emphasis
added)).
We cited four cases in explanation of Montana’s first ex
ception. Each involved regulation of non-Indian activities
on the reservation that had a discernible effect on the tribe
or its members. The first concerned a Tribal Court’s juris
diction over a contract dispute arising from the sale of mer
chandise by a non-Indian to an Indian on the reservation.
See Williams v. Lee, 358 U. S. 217 (1959). The other three
involved taxes on economic activity by nonmembers. See
Washington v. Confederated Tribes of Colville Reservation,
447 U. S. 134, 152–153 (1980) (in cases where “the tribe has
a significant interest in the subject matter,” tribes retain
“authority to tax the activities or property of non-Indians
taking place or situated on Indian lands”); Morris v. Hitch
cock, 194 U. S. 384, 393 (1904) (upholding tribal taxes on non
members grazing cattle on Indian-owned fee land within
tribal territory); Buster v. Wright, 135 F. 947, 950 (CA8 1905)

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(Creek Nation possessed power to levy a permit tax on non
members for the privilege of doing business within the
reservation).
Our cases since Montana have followed the same pattern,
permitting regulation of certain forms of nonmember con
duct on tribal land. We have upheld as within the tribe’s
sovereign authority the imposition of a severance tax on nat
ural resources removed by nonmembers from tribal land.
See Merrion v. Jicarilla Apache Tribe, 455 U. S. 130 (1982).
We have approved tribal taxes imposed on leasehold inter
ests held in tribal lands, as well as sales taxes imposed on
nonmember businesses within the reservation. See Kerr-
McGee, 471 U. S., at 196–197. We have similarly approved
licensing requirements for hunting and fishing on tribal land.
See New Mexico v. Mescalero Apache Tribe, 462 U. S. 324,
337 (1983).
Tellingly, with only “one minor exception, we have never
upheld under Montana the extension of tribal civil author
ity over nonmembers on non-Indian land.” Hicks, supra,
at 360 (emphasis added). See Atkinson, 532 U. S., at 659
(Tribe may not tax nonmember activity on non-Indian fee
land); Strate, 520 U. S., at 454, 457 (tribal court lacks jurisdic
tion over tort suit involving an accident on nontribal land);
Montana, supra, at 566 (Tribe has no authority to regulate
nonmember hunting and fishing on non-Indian fee land).
The exception is Brendale v. Confederated Tribes and Bands
of Yakima Nation, 492 U. S. 408, and even it fits the general
rubric noted above: In that case, we permitted a Tribe to
restrain particular uses of non-Indian fee land through zon
ing regulations. While a six-Justice majority held that
Montana did not authorize the Yakima Nation to impose
zoning regulations on non-Indian fee land located in an area
of the reservation where nearly half the acreage was owned
by nonmembers, 492 U. S., at 430–431 (opinion of White, J.);
id., at 444–447 (opinion of Stevens, J.), five Justices con
cluded that Montana did permit the Tribe to impose differ
ent zoning restrictions on nonmember fee land isolated in

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“the heart of [a] closed portion of the reservation,” 492 U. S.,
at 440 (opinion of Stevens, J.), though the Court could not
agree on a rationale, see id., at 443–444 (same); id., at 458–
459 (opinion of Blackmun, J.).
But again, whether or not we have permitted regulation
of nonmember activity on non-Indian fee land in a given case,
in no case have we found that Montana authorized a tribe
to regulate the sale of such land. Rather, our Montana
cases have always concerned nonmember conduct on the
land. See, e. g., Hicks, 533 U. S., at 359 (Montana and Strate
concern “tribal authority to regulate nonmembers’ activities
on [fee] land” (emphasis added)); Atkinson, 532 U. S., at 647
(“conduct of nonmembers on non-Indian fee land”); id., at 660
(Souter, J., concurring) (“the activities of nonmembers”);
Bourland, 508 U. S., at 689 (“use of the land”); Brendale,
supra, at 430 (“use of fee land”); Montana, supra, at 565
(first exception covers “activities of nonmembers”).1
The distinction between sale of the land and conduct on it
is well established in our precedent, as the foregoing cases
demonstrate, and entirely logical given the limited nature of
tribal sovereignty and the liberty interests of nonmembers.
By virtue of their incorporation into the United States, the
tribe’s sovereign interests are now confined to managing
tribal land, see Worcester, 6 Pet., at 561 (persons are allowed
to enter Indian land only “with the assent of the [tribal mem
bers] themselves”), “protect[ing] tribal self-government,”
and “control[ling] internal relations,” see Montana, supra,
at 564. The logic of Montana is that certain activities
on non-Indian fee land (say, a business enterprise employing
1 Justice Ginsburg questions this distinction between sales and activi
ties on the ground that “[s]ales of land—and related conduct—are surely
‘activities’ within the ordinary sense of the word.” Post, at 347 (dissent
ing opinion). We think the distinction is readily understandable. In any
event, the question is not whether a sale is, in some generic sense, an
action. The question is whether land ownership and sale are “activities”
within the meaning of Montana and the other cited precedents.

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tribal members) or certain uses (say, commercial develop
ment) may intrude on the internal relations of the tribe or
threaten tribal self-rule. To the extent they do, such activi
ties or land uses may be regulated. See Hicks, supra, at 361
(“Tribal assertion of regulatory authority over nonmembers
must be connected to that right of the Indians to make their
own laws and be governed by them”). Put another way, cer
tain forms of nonmember behavior, even on non-Indian fee
land, may sufficiently affect the tribe as to justify tribal over
sight. While tribes generally have no interest in regulating
the conduct of nonmembers, then, they may regulate non
member behavior that implicates tribal governance and in
ternal relations.
The regulations we have approved under Montana all flow
directly from these limited sovereign interests. The tribe’s
“traditional and undisputed power to exclude persons” from
tribal land, Duro, 495 U. S., at 696, for example, gives it the
power to set conditions on entry to that land via licens
ing requirements and hunting regulations. See Bourland,
supra, at 691, n. 11 (“Regulatory authority goes hand in hand
with the power to exclude”). Much taxation can be justified
on a similar basis. See Colville, 447 U. S., at 153 (taxing
power “may be exercised over . . . nonmembers, so far as
such nonmembers may accept privileges of trade, residence,
etc., to which taxes may be attached as conditions” (quoting
Powers of Indian Tribes, 55 I. D. 14, 46 (1934); some empha
sis added)). The power to tax certain nonmember activity
can also be justified as “a necessary instrument of self
government and territorial management,” Merrion, 455
U. S., at 137, insofar as taxation “enables a tribal government
to raise revenues for its essential services,” to pay its em
ployees, to provide police protection, and in general to carry
out the functions that keep peace and order, ibid.
Justice Ginsburg wonders why these sorts of regula
tions are permissible under Montana but regulating the sale
of fee land is not. See post, at 347. The reason is that regu

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lation of the sale of non-Indian fee land, unlike the above,
cannot be justified by reference to the tribe’s sovereign in
terests. By definition, fee land owned by nonmembers has
already been removed from the tribe’s immediate control.
See Strate, 520 U. S., at 456 (tribes lack power to “assert
[over non-Indian fee land] a landowner’s right to occupy and
exclude”). It has already been alienated from the tribal
trust. The tribe cannot justify regulation of such land’s sale
by reference to its power to superintend tribal land, then,
because non-Indian fee parcels have ceased to be tribal land.
Nor can regulation of fee land sales be justified by the
tribe’s interests in protecting internal relations and self
government. Any direct harm to its political integrity that
the tribe sustains as a result of fee land sale is sustained at
the point the land passes from Indian to non-Indian hands.
It is at that point the tribe and its members lose the abil
ity to use the land for their purposes. Once the land has
been sold in fee simple to non-Indians and passed beyond
the tribe’s immediate control, the mere resale of that land
works no additional intrusion on tribal relations or self
government. Resale, by itself, causes no additional damage.
This is not to suggest that the sale of the land will have
no impact on the tribe. The uses to which the land is put
may very well change from owner to owner, and those uses
may well affect the tribe and its members. As our cases
bear out, see supra, at 333–335, the tribe may quite legiti
mately seek to protect its members from noxious uses that
threaten tribal welfare or security, or from nonmember con
duct on the land that does the same. But the key point is
that any threat to the tribe’s sovereign interests flows from
changed uses or nonmember activities, rather than from the
mere fact of resale. The tribe is able fully to vindicate its
sovereign interests in protecting its members and preserv
ing tribal self-government by regulating nonmember activ
ity on the land, within the limits set forth in our cases. The

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tribe has no independent interest in restraining alienation of
the land itself, and thus, no authority to do so.
Not only is regulation of fee land sale beyond the tribe’s
sovereign powers, it runs the risk of subjecting nonmembers
to tribal regulatory authority without commensurate con
sent. Tribal sovereignty, it should be remembered, is
“a sovereignty outside the basic structure of the Constitu
tion.” United States v. Lara, 541 U. S. 193, 212 (2004) (Ken
nedy, J., concurring in judgment). The Bill of Rights does
not apply to Indian tribes. See Talton v. Mayes, 163 U. S.
376, 382–385 (1896). Indian courts “differ from traditional
American courts in a number of significant respects.”
Hicks, 533 U. S., at 383 (Souter, J., concurring). And non
members have no part in tribal government—they have no
say in the laws and regulations that govern tribal territory.
Consequently, those laws and regulations may be fairly im
posed on nonmembers only if the nonmember has consented,
either expressly or by his actions. Even then, the regula
tion must stem from the tribe’s inherent sovereign authority
to set conditions on entry, preserve tribal self-government,
or control internal relations. See Montana, 450 U. S.,
at 564.
In commenting on the policy goals Congress adopted with
the General Allotment Act, we noted that “[t]here is simply
no suggestion” in the history of the Act “that Congress in
tended that the non-Indians who would settle upon alienated
allotted lands would be subject to tribal regulatory author
ity.” Id., at 560, n. 9. In fact, we said it “defies common
sense to suppose” that Congress meant to subject non-
Indians to tribal jurisdiction simply by virtue of the non
member’s purchase of land in fee simple. Ibid. If Congress
did not anticipate tribal jurisdiction would run with the land,
we see no reason why a nonmember would think so either.
The Longs point out that the Bank in this case could
hardly have been surprised by the Tribe’s assertion of regu

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latory power over the parties’ business dealings. The Bank,
after all, had “lengthy on-reservation commercial relation
ships with the Long Company.” Brief for Respondents 40.
Justice Ginsburg echoes this point. See post, at 345.
But as we have emphasized repeatedly in this context, when
it comes to tribal regulatory authority, it is not “in for a
penny, in for a Pound.” Atkinson, 532 U. S., at 656 (internal
quotation marks omitted). The Bank may reasonably have
anticipated that its various commercial dealings with the
Longs could trigger tribal authority to regulate those trans
actions—a question we need not and do not decide. But
there is no reason the Bank should have anticipated that its
general business dealings with respondents would permit
the Tribe to regulate the Bank’s sale of land it owned in
fee simple.
Even the courts below recognized that the Longs’ discrim
ination claim was a “novel” one. 491 F. 3d, at 892. It arose
“directly from Lakota tradition as embedded in Cheyenne
River Sioux tradition and custom,” including the Lakota
“sense of justice, fair play and decency to others.” 440
F. Supp. 2d, at 1082 (internal quotation marks omitted).
The upshot was to require the Bank to offer the same terms
of sale to a prospective buyer who had defaulted in several
previous transactions with the Bank as it offered to a differ
ent buyer without such a history of default. This is surely
not a typical regulation. But whatever the Bank antici
pated, whatever “consensual relationship” may have been es
tablished through the Bank’s dealing with the Longs, the
jurisdictional consequences of that relationship cannot ex
tend to the Bank’s subsequent sale of its fee land.
The Longs acknowledge, if obliquely, the critical impor
tance of land status. They emphasize that the Long Com
pany “operated on reservation fee and trust lands,” Brief for
Respondents 40, and n. 24, 41, and note that “the fee land
at issue in the lease-repurchase agreement” had previously

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belonged to a tribal member, id., at 47. These facts, how
ever, do not change the status of the land at the time of the
challenged sale. Regardless of where the Long Company
operated, the fee land whose sale the Longs seek to restrain
was owned by the Bank at the relevant time. And indeed,
before that, it was owned by Kenneth Long, a non-Indian.
See Hicks, supra, at 382, n. 4 (Souter, J., concurring) (“Land
status . . . might well have an impact under one (or perhaps
both) of the Montana exceptions”); Atkinson, supra, at 659
(Souter, J., concurring) (status of territory as “tribal or fee
land may have much to do (as it does here) with the likeli
hood (or not) that facts will exist that are relevant under the
[Montana] exceptions”).
The Longs attempt to salvage their position by arguing
that the discrimination claim is best read to challenge the
Bank’s whole course of commercial dealings with the Longs
stretching back over a decade—not just the sale of the fee
land. Brief for Respondents 44. That argument is unavail
ing. The Longs are the first to point out that their breach
of-contract and bad-faith claims, which do involve the Bank’s
course of dealings, are not before this Court. Ibid. Only
the discrimination claim is before us and that claim is tied
specifically to the sale of the fee land.2 Ibid. Count six of
the Longs’ amended complaint in the Tribal Court alleges
that “[i]n selling the Longs’ land, [Plains Commerce Bank]
unfairly discriminated against the Company and the Longs.”
App. 172–173 (emphasis added). As relief, the Longs
2 Justice Ginsburg contends that if the Tribal Court has jurisdiction
over the Longs’ other claims, it is hard to understand why jurisdiction
would not also extend to the discrimination claim. Post, at 348. First,
we have not said the Tribal Court has jurisdiction over the other claims:
That question is not before us and we decline to speculate as to its answer.
Moreover, the claims on which the Longs prevailed concern breach of a
loan agreement, see App. 190, and bad faith in connection with Bureau of
Indian Affairs loan guarantees, see id., at 192. The present claim involves
substantive regulation of the sale of fee land.

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claimed they “should get possession and title to their land
back.” Id., at 173. The Longs’ discrimination claim, in
short, is an attempt to regulate the terms on which the Bank
may sell the land it owns.3
Such regulation is outside the scope of a tribe’s sovereign
authority. Justice Ginsburg asserts that if “[t]he Federal
Government and every State, county, and municipality can
make nondiscrimination the law governing . . . real property
transactions,” tribes should be able to do so as well. Post,
at 348–349. This argument completely overlooks the very
reason cases like Montana and this one arise: Tribal jurisdic
tion, unlike the jurisdiction of the other governmental enti
ties cited by Justice Ginsburg, generally does not extend
to nonmembers. See Montana, 450 U. S., at 565. The sov
ereign authority of Indian tribes is limited in ways state and
federal authority is not. Contrary to Justice Ginsburg’s
suggestion, that bedrock principle does not vary depending
on the desirability of a particular regulation.
Montana provides that, in certain circumstances, tribes
may exercise authority over the conduct of nonmembers,
even if that conduct takes place on non-Indian fee land. But
conduct taking place on the land and the sale of the land are
two very different things. The Cheyenne River Sioux Tribe
lost the authority to restrain the sale of fee simple parcels
inside their borders when the land was sold as part of the
1908 Allotment Act. Nothing in Montana gives it back.
C
Neither the District Court nor the Court of Appeals relied
for its decision on the second Montana exception. The
3 We point to the relief requested by the Longs—and partially granted
by the Tribal Court—to rebut the Longs’ contention that their claim did
not focus on the sale of the fee land. Contrary to Justice Ginsburg’s
assertion, however, the nature of this remedy does not drive our jurisdic
tional ruling. See post, at 351–352. The remedy is invalid because there
is no jurisdiction, not the other way around.

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Eighth Circuit declined to address the exception’s applicabil
ity, see 491 F. 3d, at 888, n. 7, while the District Court
strongly suggested in passing that the second exception
would not apply here, see 440 F. Supp. 2d, at 1077. The
District Court is correct, for the same reasons we explained
above. The second Montana exception stems from the
same sovereign interests that give rise to the first, interests
that do not reach to regulating the sale of non-Indian fee
land.
The second exception authorizes the tribe to exercise civil
jurisdiction when non-Indians’ “conduct” menaces the “politi
cal integrity, the economic security, or the health or welfare
of the tribe.” Montana, 450 U. S., at 566. The conduct
must do more than injure the tribe, it must “imperil the sub
sistence” of the tribal community. Ibid. One commentator
has noted that “th[e] elevated threshold for application of the
second Montana exception suggests that tribal power must
be necessary to avert catastrophic consequences.” Cohen
§ 4.02[3][c], at 232, n. 220.
The sale of formerly Indian-owned fee land to a third party
is quite possibly disappointing to the Tribe, but cannot fairly
be called “catastrophic” for tribal self-government. See
Strate, 520 U. S., at 459. The land in question here has been
owned by a non-Indian party for at least 50 years, Brief for
Respondents 4, during which time the project of tribal self
government has proceeded without interruption. The land’s
resale to another non-Indian hardly “imperil[s] the subsis
tence or welfare of the Tribe.” Montana, supra, at 566.
Accordingly, we hold the second Montana exception inappli
cable in this case.
D
Finally, we address the Longs’ argument that the Bank
consented to tribal court jurisdiction over the discrimination
claim by seeking the assistance of tribal courts in serving a
notice to quit. Brief for Respondents 44–46. When the
Longs refused to vacate the land, the Bank initiated eviction

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proceedings in South Dakota state court. The Bank then
asked the Tribal Court to appoint a process server able to
reach the Longs. Seeking the Tribal Court’s aid in serving
process on tribal members for a pending state-court action
does not, we think, constitute consent to future litigation in
the Tribal Court. Notably, when the Longs did file their
complaint against the Bank in Tribal Court, the Bank
promptly contended in its answer that the court lacked juris
diction. Brief for United States as Amicus Curiae 7.
Under these circumstances, we find that the Bank did not
consent by its litigation conduct to tribal court jurisdiction
over the Longs’ discrimination claim.
* * *
The judgment of the Court of Appeals for the Eighth Cir
cuit is reversed.
It is so ordered.
Justice Ginsburg, with whom Justice Stevens, Jus
tice Souter, and Justice Breyer join, concurring in part,
concurring in the judgment in part, and dissenting in part.
I agree with the Court that petitioner Plains Commerce
Bank (Bank) has Article III standing to contest the jurisdic
tion of the Cheyenne River Sioux Tribal Court, and there
fore join Part II of the Court’s opinion. Further, I take no
issue with the Court’s jurisdictional ruling insofar as it re
lates to the Tribal Court’s supplemental judgment. In that
judgment, the Tribal Court ordered the Bank to give Ronnie
and Lila Long an option to repurchase fee land the Bank had
already contracted to sell to non-Indian individuals. See
App. to Pet. for Cert. A–69 to A–71.
I dissent from the Court’s decision, however, to the extent
that it overturns the Tribal Court’s principal judgment
awarding the Longs damages in the amount of $750,000 plus
interest. See App. 194–196. That judgment did not dis
turb the Bank’s sale of fee land to non-Indians. It simply

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responded to the claim that the Bank, in its on-reservation
commercial dealings with the Longs, treated them disadvan
tageously because of their tribal affiliation and racial iden
tity. A claim of that genre, I would hold, is one the Tribal
Court is competent to adjudicate. As the Court of Appeals
correctly understood, the Longs’ case, at heart, is not about
“the sale of fee land on a tribal reservation by a non-Indian
bank to non-Indian individuals,” ante, at 320. “Rather, this
case is about the power of the Tribe to hold nonmembers
like the bank to a minimum standard of fairness when they
voluntarily deal with tribal members.” 491 F. 3d 878, 887
(CA8 2007) (case below).
As the basis for their discrimination claim, the Longs es
sentially asserted that the Bank offered them terms and con
ditions on land-financing transactions less favorable than the
terms and conditions offered to non-Indians. Although the
Tribal Court could not reinstate the Longs as owners of
the ranch lands that had been in their family for decades,
that court could hold the Bank answerable in damages, the
law’s traditional remedy for the tortious injury the Longs
experienced.
I
In the pathmarking case, Montana v. United States, 450
U. S. 544, 564–565 (1981), this Court restated that, absent a
treaty or statute, Indian tribes generally lack authority to
regulate the activities of nonmembers. While stating the
general rule, Montana also identified two exceptions:
“A tribe may regulate, through taxation, licensing, or
other means, the activities of nonmembers who enter
consensual relationships with the tribe or its members,
through commercial dealing, contracts, leases, or other
arrangements. A tribe may also retain inherent power
to exercise civil authority over the conduct of non-
Indians on fee lands within its reservation when that
conduct threatens or has some direct effect on the politi

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cal integrity, the economic security, or the health or wel
fare of the tribe.” Id., at 565–566 (citations omitted).
These two exceptions, Montana explained, recognize that
“Indian tribes retain inherent sovereign power to exercise
some forms of civil jurisdiction over non-Indians on their res
ervations, even on non-Indian fee lands.” Id., at 565 (em
phasis added).
Montana specifically addressed the regulatory jurisdiction
of tribes. See id., at 557. This Court has since clarified
that when a tribe has authority to regulate the activity of
nonmembers, tribal courts presumably have adjudicatory au
thority over disputes arising out of that activity. See Strate
v. A–1 Contractors, 520 U. S. 438, 453 (1997) (as to nonmem
bers, a tribe’s adjudicative jurisdiction coincides with its leg
islative jurisdiction). In my view, this is a clear case for
application of Montana’s first or “consensual relationships”
exception. I therefore do not reach the Longs’ alternative
argument that their complaint also fits within Montana’s
second exception.
Ronnie and Lila Long, husband and wife and owners of the
Long Family Land and Cattle Company (Long Company),
are enrolled members of the Cheyenne River Sioux Tribe.
Although the Long Company was incorporated in South Da
kota, the enterprise “was overwhelmingly tribal in charac
ter, as were its interactions with the bank.” 491 F. 3d, at
886. All Long Company property was situated—and all op
erations of the enterprise occurred—within the Cheyenne
River Sioux Indian Reservation. The Long Company’s arti
cles of incorporation required Indian ownership of a majority
of the corporation’s shares. This requirement reflected the
Long Company’s status as an Indian-owned business entity
eligible for Bureau of Indian Affairs (BIA) loan guarantees.
See 25 CFR § 103.25 (2007) (requiring at least 51% Indian
ownership). Loan guarantees are among the incentives the
BIA offers to promote the development of on-reservation In

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dian enterprises. The Long Company “was formed to take
advantage of [the] BIA incentives.” 491 F. 3d, at 886.
The history of the Bank’s commercial dealings with the
Long Company and the Long family is lengthy and complex.
The business relationship dates from 1988, when Ronnie
Long’s parents—one of them a member of the Tribe—mort
gaged some 2,230 acres of land to the Bank to gain working
capital for the ranch. As security for the Bank’s loans over
the years, the Longs mortgaged both their land and their
personal property. The Bank benefited significantly from
the Long Company’s status as an Indian-owned business en
tity, for the BIA loan guarantees “allowed [it] to greatly re
duce its lending risk.” Ibid. Eventually, the Bank col
lected from the BIA almost $400,000, more than 80% of the
net losses resulting from its loans to the Longs. See 440
F. Supp. 2d 1070, 1078 (SD 2006) (case below); App. 135–138.
The discrimination claim here at issue rests on the alleg
edly unfair conditions the Bank exacted from the Longs
when they sought loans to sustain the operation of their
ranch. Following the death of Ronnie’s father, the Bank and
the Longs entered into an agreement under which the mort
gaged land would be deeded over to the Bank in exchange
for the Bank’s canceling some debt and making additional
loans to keep the ranch in business. The Longs were given
a two-year lease on the property with an option to buy the
land back when the lease term expired. Negotiating ses
sions for these arrangements were held at the Tribe’s on
reservation offices and were facilitated by tribal officers and
BIA employees. 491 F. 3d, at 881.
Viewing the deal they were given in comparative light, the
Longs charged that the Bank offered to resell ranch land to
them on terms less advantageous than those the Bank of
fered in similar dealings with non-Indians. Their claim, all
courts prior to this one found, fit within the Montana excep
tion for “activities of nonmembers who enter [into] . . . com
mercial dealing, contracts, leases, or other arrangements”

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with tribal members. 450 U. S., at 565. Cf. Strate, 520
U. S., at 457 (Montana’s consensual-relationships exception
justifies tribal-court adjudication of claims “arising out of
on-reservation sales transaction between nonmember plain
tiff and member defendants” (citing Williams v. Lee, 358
U. S. 217, 223 (1959))). I am convinced that the courts below
got it right.
This case, it bears emphasis, involves no unwitting out
sider forced to litigate under unfamiliar rules and procedures
in tribal court. Cf. Nevada v. Hicks, 533 U. S. 353, 382–385
(2001) (Souter, J., concurring). Hardly a stranger to the
tribal court system, the Bank regularly filed suit in that
forum. See Brief for Cheyenne River Sioux Tribe as Ami
cus Curiae 29–31. The Bank enlisted tribal-court aid to
serve notice to quit on the Longs in connection with state
court eviction proceedings. The Bank later filed a counter
claim for eviction and motion for summary judgment in the
case the Longs commenced in the Tribal Court. In its sum
mary judgment motion, the Bank stated, without qualifica
tion, that the Tribal Court “ha[d] jurisdiction over the sub
ject matter of this action.” App. 187–188. Had the Bank
wanted to avoid responding in tribal court or the application
of tribal law, the means were readily at hand: The Bank could
have included forum selection, choice-of-law, or arbitration
clauses in its agreements with the Longs, which the Bank
drafted. See Brief for Respondents 42.
II
Resolving this case on a ground neither argued nor ad
dressed below, the Court holds that a tribe may not impose
any regulation—not even a nondiscrimination requirement—
on a bank’s dealings with tribal members regarding on
reservation fee lands. See ante, at 320, 340. I do not read
Montana or any other case so to instruct, and find the
Court’s position perplexing.

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First, I question the Court’s separation of land sales tied
to lending activities from other “activities of nonmembers
who enter consensual relationships with the tribe or its
members,” Montana, 450 U. S., at 565. Sales of land—and
related conduct—are surely “activities” within the ordinary
sense of the word. See, e. g., County of Yakima v. Confeder
ated Tribes and Bands of Yakima Nation, 502 U. S. 251, 269
(1992) (“The excise tax remains a tax upon the Indian’s activ
ity of selling the land . . . .” (emphasis added)). Cf. 14 Ox
ford English Dictionary 388 (2d ed. 1989) (defining “sale” as
“[t]he action or an act of selling” (def. 1(a))).
Second, the Court notes the absence of any case “f[i]nd
[ing] that Montana authorized a tribe to regulate the sale of
[non-Indian fee] land.” Ante, at 334. But neither have we
held that Montana prohibits all such regulation. If the
Court in Montana, or later cases, had intended to remove
land sales resulting from loan transactions entirely from
tribal governance, it could have spoken plainly to that effect.
Instead, Montana listed as examples of consensual relation
ships that tribes might have authority to regulate “commer
cial dealing, contracts, [and] leases.” 450 U. S., at 565.
Presumably, the reference to “leases” includes leases of fee
land. But why should a nonmember’s lease of fee land to a
member be differentiated, for Montana exception purposes,
from a sale of the same land? And why would the enforce
ment of an antidiscrimination command be less important
to tribal self-rule and dignity, cf. ante, at 334–337, when
the command relates to land sales than when it relates to
other commercial relationships between nonmembers and
members?
III
As earlier observed, see supra, at 342, I agree that the
Tribal Court had no authority to grant the Longs an option
to purchase the 960-acre parcel the Bank had contracted to
sell to individuals unaffiliated with the Tribe. The third

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parties’ contracts with the Bank cannot be disturbed based
on Montana’s exception for “the activities of nonmembers
who enter consensual relationships with the tribe or its
members.” 450 U. S., at 565. Although the Tribal Court
overstepped in its supplemental judgment ordering the Bank
to give the Longs an option to purchase land third parties
had contracted to buy, see App. to Pet. for Cert. A–69 to
A–71, it scarcely follows that the Tribal Court lacked juris
diction to adjudicate the Longs’ discrimination claim, and to
order in its principal judgment, see App. 194–196, monetary
relief.1
The Court recognizes that “[t]he Bank may reasonably
have anticipated that its various commercial dealings with
the Longs could trigger tribal authority to regulate those
transactions.” Ante, at 338. Today’s decision, further
more, purports to leave the Longs’ breach-of-contract and
bad-faith claims untouched. Ante, at 339, n. 2. Noting that
the Bank “does not presently challenge the breach-of
contract verdict,” ante, at 324, the Court emphasizes that
“[o]nly the discrimination claim is before us and that claim is
tied specifically to the sale of the fee land,” ante, at 339.
But if the Tribal Court is a proper forum for the Longs’ claim
that the Bank has broken its promise or acted deceptively in
the land-financing transactions at issue, one is hard put to
understand why the Tribe could not likewise enforce in its
courts a law that commands: Thou shall not discriminate
against tribal members in the terms and conditions you offer
them in those same transactions. The Federal Government
1 The Longs joined their discrimination claim with claims of breach of
contract and bad-faith dealings. The jury found in favor of the Longs on
all three claims. App. 190–192. The latter claims alleged that the Bank
“never provided the . . . operating loans” promised during the parties’
negotiations. 491 F. 3d 878, 882 (CA8 2007). “[A]s a result,” the Longs
asserted, “the company was not able [to] sustain its ranching operation
through the particularly harsh winter of 1996–97.” Ibid. Nothing in the
Court’s opinion precludes decision of those claims by the Tribal Court.
See ante, at 325, 326–327, 339, n. 2.

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and every State, county, and municipality can make nondis
crimination the law governing contracts generally, and real
property transactions in particular. See, e. g., 42 U. S. C.
§§ 1981, 1982. Why should the Tribe lack comparable au
thority to shield its members against discrimination by those
engaging in on-reservation commercial relationships—in
cluding land-secured lending—with them?
A
The “fighting issue” in the tribal trial court, the Eighth
Circuit underscored, “was whether the bank denied the
Longs favorable terms on a deal solely on the basis of their
race or tribal affiliation.” 491 F. 3d, at 891. The Longs
maintained that the Bank initially offered them more favor
able terms, proposing to sell the mortgaged land back to
them with a 20-year contract for deed. Thereafter, the
Bank sent a letter to Ronnie Long withdrawing its initial
offer, “citing ‘possible jurisdictional problems’ posed by the
Long Company’s status as an ‘Indian owned entity on the
reservation.’ ” Id., at 882 (quoting Letter from Charles
Simon, Vice President, Bank of Hoven, to Ronnie Long (Apr.
26, 1996), App. 91). In the final agreement, the Bank prom
ised no long-term financing; instead, it gave the Longs only
a two-year lease with an option to purchase that required a
large balloon payment within 60 days of the lease’s expira
tion. When the Longs were unable to make the required
payment within the specified deadline, the Bank sold the
land to nonmembers on more favorable terms.
In their complaint, the Longs alleged that the Bank al
lowed the non-Indians “ten years to pay for the land, but the
bank would not permit [the] Longs even 60 days to pay for
their land,” and that “[s]uch unfair discrimination by the
bank prevented the Longs and the [Long] Company from
buying back their land from the bank.” App. 173. Al
though the allegations about the Bank’s contracts to sell to
nonmembers were central to the Longs’ lawsuit, those trans

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actions with third parties were not the wrong about which
the Longs complained. Rather, as the tribal trial court
observed, the contracts with nonmembers simply supplied
“evidence that the Bank denied the Longs the privilege of
contracting for a deed because of their status as tribal
members.” App. to Pet. for Cert. A–78 to A–79 (emphasis
added).
The Tribal Court instructed the jury to hold the Bank lia
ble on the discrimination claim only if the less favorable
terms given to the Longs rested “solely” upon the Longs’
“race or tribal identity.” 491 F. 3d, at 883 (internal quota
tion marks omitted). In response to a special interrogatory,
the jury found that “the Defendant Bank intentionally dis
criminate[d] against the Plaintiffs Ronnie and Lila Long [in
the lease with option to purchase] based solely upon their
status as Indians or tribal members.” App. 191. Neither
the instruction nor the special finding necessitated regula
tion of, or interference with, the Bank’s fee-land sales to
non-Indian individuals. See ante, at 320.2
Tellingly, the Bank’s principal jurisdictional argument
below bore no relationship to the position the Court em
braces. The Bank recognized that the Longs were indeed
complaining about discriminatory conduct of a familiar sort.
Cf. Jones v. Alfred H. Mayer Co., 392 U. S. 409, 413 (1968)
2 The Court criticizes the Tribal Court for “requir[ing] the Bank to offer
the same terms of sale to a prospective buyer who had defaulted in several
previous transactions with the Bank as it offered to a different buyer
without such a history of default.” Ante, at 338. That criticism is unfair.
First, the record does not confirm that the Longs were riskier buyers than
the nonmembers to whom the Bank eventually sold the land. Overlooked
by the Court, the Bank’s loans to the Longs were sheltered by BIA loan
guarantees. See supra, at 344–345. Further, a determination that the
Longs had encountered intentional discrimination based solely on their
status as tribal members in no way inhibited the Bank from differentiating
evenhandedly among borrowers based on their creditworthiness. The
proscription of discrimination simply required the Bank to offer the Longs
the same terms it would have offered similarly situated non-Indians.

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(42 U. S. C. § 1982 “bars all racial discrimination . . . in the
sale or rental of property”). In Hicks, 533 U. S. 353, this
Court held that tribal courts could not exercise jurisdiction
over a claim arising under federal law, in that case, 42
U. S. C. § 1983. Relying on Hicks, the Bank insisted that the
Longs’ discrimination claim could not be heard in tribal court
because it arose under well-known federal antidiscrimination
law, specifically, 42 U. S. C. § 1981 or § 2000d. 491 F. 3d, at
882–883. The Tribal Court of Appeals, however, held that
the claim arose under Lakota common law, which resembled
federal and state antidiscrimination measures. See App. to
Pet. for Cert. A–54 to A–55, and n. 5.3
B
The Longs requested a remedy the Tribal Court did not
have authority to grant—namely, an option to repurchase
land the Bank had already contracted to sell to nonmember
third parties. See supra, at 347–348. That limitation, how
ever, does not affect the court’s jurisdiction to hear the
Longs’ discrimination claim and to award damages on that
claim. “The nature of the relief available after jurisdiction
attaches is, of course, different from the question whether
3 The Court types the Longs’ discrimination claim as “ ‘novel,’ ” ante, at
338 (quoting 491 F. 3d, at 892), because the Tribal Court of Appeals derived
the applicable law “ ‘directly from Lakota tradition,’ ” ante, at 338 (quoting
440 F. Supp. 2d 1070, 1082 (SD 2006) (case below)). Concerning the con
tent of the Tribe’s law, however, the appeals court drew not only from
“Tribal tradition and custom,” it also looked to federal and state law. See
App. to Pet. for Cert. A–55. Just as state courts may draw upon federal
law when appropriate, see, e. g., Dawson v. Birenbaum, 968 S. W. 2d 663,
666–667 (Ky. 1998), and federal courts may look to state law to fill gaps,
see, e. g., United States v. Kimbell Foods, Inc., 440 U. S. 715, 728–730
(1979), so too may tribal courts “borrow from the law of . . . the federal
government,” see F. Cohen, Handbook of Federal Indian Law § 4.05[1],
p. 275 (2005 ed.). With regard to checks against discrimination, as the
Tribal Court of Appeals observed, “there is a direct and laudable conver
gence of federal, state, and tribal concern.” App. to Pet. for Cert. A–55
to A–56.

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there is jurisdiction to adjudicate the controversy.” Avco
Corp. v. Machinists, 390 U. S. 557, 561 (1968). See also
Davis v. Passman, 442 U. S. 228, 239–240, n. 18 (1979) (“[J]u
risdiction is a question of whether a federal court has the
power . . . to hear a case”; “relief is a question of the various
remedies a federal court may make available.”).
Under the procedural rules applicable in Cheyenne River
Sioux Tribal Courts, as under the Federal Rules, demand for
one form of relief does not confine a trial court’s remedial
authority. See Law and Order Code of Cheyenne River
Sioux Tribe, Rule Civ. Proc. 25(c)(1) (“[E]very final judgment
shall grant the relief to which the party in whose favor it is
rendered is entitled, even if such relief is not demanded in
the pleadings.”); Fed. Rule Civ. Proc. 54(c) (materially identi
cal). A court does not lose jurisdiction over a claim merely
because it lacks authority to provide the form of relief a
party primarily demands. See Avco, 390 U. S., at 560–561;
10 C. Wright, A. Miller, & M. Kane, Federal Practice and
Procedure § 2664, pp. 181–182 (3d ed. 1998) (“[I]t is not . . .
the type of relief requested in the demand that determines
whether the court has jurisdiction.”).4 In such a case, au
thority to provide another remedy suffices to permit the
court to adjudicate the merits of the claim. See Avco, 390
U. S., at 560–561.
* * *
For the reasons stated, I would leave undisturbed the
Tribal Court’s initial judgment, see App. 194–196, awarding
the Longs damages, prejudgment interest, and costs as re
dress for the Bank’s breach of contract, bad faith, and dis
crimination. Accordingly, I would affirm in large part the
judgment of the Court of Appeals.
4 As in this case, see App. 177–179, the complaint in Avco sought injunc
tive relief, but also included a residual clause asking for other relief, see
Avco Corp. v. Aero Lodge No. 735, Int’l Assn. of Mach. and Aerospace
Workers, 376 F. 2d 337, 339 (CA6 1967).