Nevada v. Hicks (2001)

See, e.g., Attorney’s Process & Investigation Servs., Inc. v. Sac & Fox Tribe of Miss. in Iowa, 609 F.3d 927, 935 (8th Cir.2010); Philip Morris USA, Inc. v. King Mountain Tobacco Co., 569 F.3d 932, 938 (9th Cir.2009); MacArthur v. San Juan Cnty., 309 F.3d 1216 , 1222 (10th Cir.2002); see also Nevada v. Hicks, 533 U.S. 353, 360, 367 , 121 S.Ct. 2304 , 150 L.Ed.2d 398 (2001) (holding that tribal courts are not courts of general jurisdiction because their inherent adjudicative …

But see id. at 360 , 121 S.Ct. 2304 (cautioning that “[t]he ownership status of land ... is only one factor to consider in determining whether regulation of the activities of nonmembers is ‘necessary to protect tribal self-government or to control internal relations,’ though ‘[i]t may sometimes be a disposi-tive factor’ ” (quoting Montana, 450 U.S. at 564 , 101 S.Ct. 1245 )).

But see id. at 360 (cautioning that "[t]he ownership status of land . . . is only one factor to consider in determining whether regulation of the activities of nonmembers is 'necessary to protect tribal self- government or to control internal relations,' though "[i]t may sometimes be a dispositive factor" (quoting Montana, 450 U.S. at 564 )).

Mem. at 11 (absence of tribal ownership has been "[']virtually conclusive of the absence of tribal civil jurisdiction.[’]” (quoting Hicks, 533 U.S. at 360 , 121 S.Ct. 2304 (emphasis supplied by County defendants)); but cf. Hicks, 533 U.S. at 382 & n. 4, 121 S.Ct. 2304 (Souter, Kennedy & Thomas, JJ. concurring) ("It is the membership status of the unconsenting party, not the status of real property, that counts as the primary jurisdictional fact,” but "[l]and status, for inst…

But see State v. Cummings, 679 N.W.2d 484, 488 (S.D.2004) (holding that the “State has no jurisdiction to act on the reservations in South Dakota”). {24} The general consensus among our sister states regarding a state officer’s authority to investigate off-reservation crimes in Indian country also is supported by Hicks, which held that “[s]tate sovereignty does not end at a reservation’s border,” because “an Indian reservation is considered part of the territory of the State…

Apache Tribe v. Bracker, 448 U.S. 136, 142 , 100 S. Ct. 2578, 2583 (1980); Worcester v. Georgia, 31 U.S. 515, 561 (1832); but see Nevada v. Hicks, 533 U.S. 353 , 361-62 n. 4, 121 S. Ct. 2304 , 2311 n. 4 (2001) (suggesting, in dicta, limitation on holding from Worcester). ¶17 This Court has acknowledged this general limitation, that “[t]he exercise of state jurisdiction over activities occurring entirely on Indian lands is an infringement on inherent tribal authority and is c…

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 Nevada v. Hicks, 533 U. S. 353, 392 (2001) (“[T]ribes retain sovereign interests in activities that occur on land owned and controlled by the tribe”) Cite as: 554 U. S. ____ (2008) 9 Opinion of the Court (O’Connor, J., concurring in part and concurring in judgment).

Judicial opinions must not be confused with statutes, and general expressions must be read in light of the subject under consideration.” United States v. Skoien, 614 F. 3d 638, 640 (CA7 2010) (en banc); see also Reiter v. Sonotone Corp., 442 U. S. 330 , 341 (1979) (stressing that an opinion is not “a statute,” and its language should not “be parsed” as if it were); Nevada v. Hicks, 533 U. S. 353, 372 (2001) (same).

Judicial opinions must not be confused with statutes, and general expressions must be read in light of the subject under consideration.” United States v. Skoien, 614 F. 3d 638, 640 (CA7 2010) (en banc); see also Reiter v. Sonotone Corp., 442 U. S. 330, 341 (1979) (stress- ing that an opinion is not “a statute,” and its language should not “be parsed” as if it were); Nevada v. Hicks, 533 U. S. 353, 372 (2001) (same).

See Nevada v. Hicks, 533 U.S. 353, 358 , 121 S.Ct. 2304 , 150 L.Ed.2d 398 (2001) (“Indian tribes’ regulatory authority over nonmembers is governed by principles set forth in [Montana ] which we have called the ‘path-marking case’ on the subject... .”). 3 Montana sets the framework of a general rule and two exceptions: [A]bsent a different congressional direction, Indian tribes lack civil authority over the conduct of non-members on non-Indian land within a reservation, subje…

See Hicks, 533 U.S. at 360 (“The ownership status of land . . . is only one factor to consider . . . .”).

SMITH “frequently unwritten, [and] based instead ‘on the values, mores, and norms of a tribe and expressed in its customs, traditions, and practices.’” Hicks, 533 U.S. at 384 (Souter, J., concurring) (quoting Melton, Indigenous Justice Systems and Tribal Society, 79 Judicature 126, 131 (1995)).

Id. at 367 (“[The] historical and constitutional assumption of concurrent state-court jurisdiction over federal-law cases is completely missing with respect to tribal courts. . . .

Id. at 367 (“[The] historical and constitutional assumption of concurrent state-court jurisdiction over federal-law cases is completely missing with respect to tribal courts . . . .

See Nevada v. Hicks, 533 U.S. 353, 373 (2001) (“There is no authority whatsoever for the proposition that absolute- and qualified-immunity defenses pertain to the court’s jurisdiction . . . .”).

Nevada v. Hicks, - U.S.-,-, 121 S.Ct. 2304, 2315 , 150 L.Ed.2d 398 (2001) (“Since it is clear ... that tribal courts lack jurisdiction ..., adherence to the tribal exhaustion requirement in such cases ‘would serve no purpose other than delay,’ and is therefore unnecessary.”); Burlington Northern, 196 F.3d at 1065-66 (“exhaustion is not required when ‘tribal court jurisdiction does not exist under Montana and Strate,’ and remand would only delay a final judgment”).

Nevada v. Hicks, 533 U.S. 353, 373 (2001) 7 Case: 25-40170 Document: 100-1 Page: 8 Date Filed: 05/27/2026 No. 25-40170 (“There is no authority what[so]ever for the proposition that absolute- and qualified-immunity defenses pertain to the court’s jurisdiction[.]”); see also St.

See Nevada v. Hicks, USCA11 Case: 24-12787 Document: 41-1 Date Filed: 03/13/2026 Page: 11 of 47 24-12787 Opinion of the Court 11 533 U.S. 353, 373 (2001).

Id. at 333 (“Tellingly, with only ‘one minor exception [involving conduct on reservation land], we have never upheld under Montana the extension of tribal civil authority over nonmembers on non-Indian land.’” (quoting Nevada v. Hicks, 533 U.S. 353, 360 (2001)); id. at 332 (“Montana and its progeny permit tribal regulation of nonmember conduct inside the reservation that implicates the tribe’s sovereign interests.”) (emphasis added).

Instead, we have an “independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). 6 USCA4 Appeal: 24-1380 Doc: 72 Filed: 06/18/2025 Pg: 7 of 19 v. United States, 219 U.S. 346, 361 (1911), before reaching any judicial immunity questions, see Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 , 93–102 (1998) (holding that federal courts must decide jurisdic…

Nevada v. Hicks, 533 U.S. 353, 373 (2001).

Nevada v. Hicks, 533 U.S. 353, 362 (2001).

See Nevada v. Hicks, 533 U.S. 353, 373 (2001) (“There is no authority whatsoever for the proposition that absolute- and qualified- immunity defenses pertain to the court’s jurisdiction . . . .”).

See, e.g., Nevada v. Hicks , 533 U.S. 353 , 357-58, 121 S.Ct. 2304 , 150 L.Ed.2d 398 (2001) ("A tribal court's adjudicative authority is, at *554 most, only as broad as the tribe's regulatory authority."); Strate v. A-1 Contractors , 520 U.S. 438 , 453, 117 S.Ct. 1404 , 137 L.Ed.2d 661 (1997) ("As to nonmembers ... a tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction ....").

See also Hicks, 533 U.S. at 365 (“The States’ inherent jurisdiction on reservations can of course be stripped by Congress.”). ¶127 There is a difference between federal policy and federal law.

See Hicks, 533 U.S. at 371 (“Self-government and internal relations are not directly at issue here, since the issue is whether the Tribes’ law will apply, not to their own members, but to a narrow category of outsiders.”).

See Hicks, 533 U.S. at 371 (“Self-government and internal relations are not directly at issue here, since the issue is whether the Tribes’ law will apply, not to their own members, but to a narrow category of outsiders.”).

See, e.g., Nevada v. Hicks, 533 U.S. 353, 373 , 121 S. Ct. 2304 , 150 L.

Ed. 2d 573 (1962); see also Nevada v. Hicks, 533 U.S. 353, 362 , 121 S. Ct. 2304 , 150 L.

See also Nevada v. Hicks, 533 U.S. 353, 365 , 121 S.Ct. 2304 , 150 L.Ed.2d 398 (2001)(“Sections 1152 and 1153 of Title 18, which give United States and tribal criminal law generally exclusive application, apply only to crimes committed in Indian country ... ,”)(emphasis in original).

See Nevada v. Hicks, 533 U.S. 353, 362 , 121 S.Ct. 2304 , 150 L.Ed.2d 398 (2001) ("It is ... well established in our precedent that States have criminal jurisdiction over reservation [tribal members] for crimes committed off the reservation.").

See Nevada v. Hicks, 533 U.S. 353, 362 , 121 S. Ct. 2304 , 150 L.

See also Nevada v. Hicks, 533 US 353, 362 , 121 S Ct 2304 , 150 L Ed 2d 398 (2001) (“It is also well established in our precedent that States have criminal jurisdiction over reservation Indians for crimes committed * * * off the reservation.”); Mescalero Apache Tribe v. Jones, 411 US 145, 148-49 , 93 S Ct 1267 , 36 L Ed 2d 114 (1973) (“Absent express federal *636 law to the contrary, Indians going beyond reservation boundaries have generally been held subject to non-discrimi…

See Nevada v. Hicks, 533 U.S. 353, 362 , 121 S.Ct. 2304, 2312 , 150 L.Ed.2d 398 (2001) (“[s]tates have criminal jurisdiction over reservation Indians for crimes committed ... off the reservation”) (citing Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-149 , 93 S.Ct. 1267, 1270-71 , 36 L.Ed.2d 114 (1973)). [¶ 44.] 6.

Nevada v. Hicks, 533 U.S. 353, 361 (2001).

Examples of "tribal power" include the "authority '[to punish tribal offenders,] to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members.'" Nevada v. Hicks, 533 U.S. 353, 361 (2001) (alteration in original) (quoting Strate v. A-1 Contractors, 520 U.S. 438 , 459 (1997)) (internal citations omitted).

See, e.g., White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 141 (1980) (“Long ago the Court departed from [the] view that the laws of [a State] can have no force within reservation boundaries.” (internal quotation marks omitted)); Nevada v. Hicks, 533 U.S. 353, 361 (2001) (“Our cases make clear that the Indians’ right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation.”).

The Court does not, by citing this expansive definition of absolute judicial immunity, suggest Judge Lynch Bernard committed any error during Mr. Jackson’s family court case. 1 Judicial immunity, as a form of absolute immunity, is not a jurisdictional defense. , 533 U.S. 353, 373 (2001) (determining that “[t]here is no authority whatever for the proposition that absolute- and qualified-immunity defenses pertain to the court's jurisdiction”). 2 The First Circuit has permitted…

Miller, Federal Practice and Procedure § 1350 (3d ed.))); Nevada v. Hicks, 533 U.S. 353, 373 (2001) (“There is no authority whatever for the proposition that absolute- and qualified-immunity defenses pertain to the court's jurisdiction[.]”).

See Carroll v. Trump, 88 F.4th 418, 425 (2d Cir. 2023) (“The Supreme Court recognized in Nevada v. Hicks that ‘[t]here is no authority whatever for the proposition that absolute- and qualified-immunity defenses pertain to the court’s jurisdiction.’” (quoting Nevada v. Hicks, 533 U.S. 353, 373 (2001))); cf. Bartolini v. Mongelli, No. 17-CV- 6276, 2018 WL 6333827 , at *10 (E.D.N.Y.

When a nonmember plaintiff sues a tribal member defendant, the suit in effect seeks to regulate the tribal member, implicating the ‘right of the Indians to make their own laws and be governed by them.’” Id. (quotation cleaned up) (quoting Nevada v. Hicks, 533 U.S. 353, 361 (2001)); see also Fine Consulting, Inc. v. Rivera, 915 F. Supp. 2d 1212, 1224 (D.N.M. 2013) (“[T]he Supreme Court has repeatedly demonstrated its concern that tribal courts not require defendants who are n…

Code Ann. §§ 2—1-301 to —307, and off it, Nevada v. Hicks, 533 U.S. 353, 362 (2001); Hagen v. Utah, 510 U.S. 399, 421-22 (1994); Little Light v. Crist, 649 F.2d 682, 685 (9th Cir. 1981).

Moreover, the Supreme Court has spoken clearly on the interaction between a defense of absolute immunity and a federal court’s subject matter jurisdiction: “There is no authority whatever for the proposition that absolute- and qualified-immunity defenses pertain to the court’s jurisdiction.” Nevada v. Hicks, 533 U.S. 353, 373 (2001); see also Sakon v. Johnson, 2024 WL 1175370 , at *3 (D.

The Supreme Court has long acknowledged that “a State ‘can act only through its officers and agents.’” Nevada v. Hicks, 533 U.S. 353, 365 (2001) (quoting Tennessee v. Davis, 100 U.S. (10 Otto) 257, 263 (1879)); see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 , 114 n.25 (1984) (“Unlike the English sovereign perhaps, an American State can act only through its officials.”); Briscoe v. President of the Bank of Ky., 36 U.S. (11 Pet.) 257, 318 (1837) (“A state can …

Nevada v. Hicks, 533 U.S. 353, 369 (2001). 6 Analysis 7 1.

As Justice Scalia has put it, “[t]here is no authority whatever for the proposition that absolute- and qualified-immunity defenses pertain to the court’s jurisdiction.” Nevada v. Hicks, 533 U.S. 353, 373 (2001).

Nevada v. Hicks, 533 U.S. 353, 355 (2001). 27 Accordingly, this court has subject matter jurisdiction over this action and may properly transfer this case. 28 1 | occurred in Lyon County, Nevada, which lies within the District of Nevada, the court orders that 2 | this action be transferred to the U.S. District Court for the District of Nevada pursuant to 28 3 || U.S.C. § 1406(a).

See Tucker v. Faith Bible Chapel Int’l, 53 F.4th 620, 626 (10th Cir. 2022) (Bacharach, J., dissenting from the denial of en banc consideration); Nevada v. Hicks, 533 U.S. 353, 373 (2001) (“There is no authority whatever for the proposition that absolute- and qualified- immunity defenses pertain to the court’s jurisdiction.”).

See Nevada v. Hicks, 533 U.S. 353, 373 (2001) (“There is no authority whatever for the proposition that absolute- and qualified-immunity defenses pertain to the court’s jurisdiction . . . .”); Bogle v. McClure, 332 F.3d 1347 , 1355 n.5 (11th Cir. 2003) (“Qualified immunity is an affirmative defense that may be waived.”) (citations omitted).

Id. at 783, citing Plains Commerce Bank, 554 U.S. at 337 (even if nonmember consents to jurisdiction any tribal regulation must derive from its “inherent sovereign authority to set conditions on entiy, preserve tribal self-government, or control internal relations”), and Nevada v. Hicks, 533 U.S. 353, 367 (2001) (“where nonmembers are concerned, the exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsi…