H.R. 3773 and S. 1967 enhance the power of tribal reservation courts at the expense of Montana citizens, while violating the U.S. Constitution’s protections under the 4th Amendment.

Representative Tracy Sharp, Montana House District 12

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The Federal government and Montana’s representation in Washington, DC appear to have nothing but disdain for the sovereignty of their own US citizens living within the boundaries of reservations. The PROTECT Act treats American citizenship and the non-tribal American citizen’s sovereignty like a zero-sum game. To appease both the desires, wants, and the endless appeals to victimhood of the tribes, the Federal government apparently believes it must denigrate and degrade the sovereignty of its non-tribal citizens in order to grant Indian tribes even greater control over their own affairs.

However, the tribes do not merely seek greater sovereignty over their own affairs as was granted by the IRA of 1934, but control over all the affairs of non-tribal people as well. This stems from a willful misreading of history to obtain a specific outcome. It appears the outcome sought by the tribes today is ‘nation-state status.’

There are numerous ways in which this makes non-tribal American citizens lesser to the tribes and our Federal and State governments. This is an approach our government rejected when applied to foreign courts such as the International Criminal Court (ICC), but those well-founded objections are apparently cast aside when it comes to Indian tribes. While resistant to throwing our citizens to a court untouchable by the ballot of American citizens—the ICC—our Federal government seems happy to do so to entities seeking to become their own nation within our already existing nation.

Previous Court Rulings

The Supreme Court of the United States (SCOTUS) has already ruled that tribes have no authority over non-tribal people (Montana v. United States – 1981). Yet the tribes have sought to use the courts to chip away at these rulings.

The errant Violence Against Women Act (VAWA), originally enacted in 2013, puts the US government (USG) in league with the search for vengeance, not justice. Perhaps the USG does so out of a lack of funding or laziness, but we are abandoning a US citizen to a system that lacks the centuries of experience upon which our judiciary is founded. If a tribal system wants to pursue another tribal member, fine. Allowing the prosecution of a non-tribal member by a tribal system is not.

In 2022, the VAWA was expanded. The message is clear: you may have served this nation faithfully and consider yourself an American Patriot, but if you find yourself as a defendant in this case, we will throw you overboard in a heart beat. Your country is abandoning you. So much for previous SCOTUS decisions.

The PROTECT Act is written with wide enough loopholes that anything can be driven through them. The Tribes say they must release drug runners they catch because they lack jurisdiction, but the Heurto-Castro decision made it clear that this is not the case. The State was declared to have jurisdiction throughout ‘Indian Country’ if necessary to protect the citizenry of the State as a whole. Even the McGirt decision supported this ‘necessary to protect the citizenry’ verdict. That is, the non-tribal member apprehended in the McGirt decision was detained because the tribal officer believed the defendant was a threat to the tribal community, and this was upheld. Thus, the reverse is true as well; a county Sheriff can hold a non-tribal member on tribal lands because of the risk the apprehended may pose to the general public for which the Sheriff is responsible.

It is not the apprehension that is in question; it is the adjudication of the offense. If the tribe wishes to adjudicate on Indian-on-Indian criminal activity, it may do so. Now they seek to expand their system to cover non-tribal people, as has been done with VAWA, but this is done with no regard whatsoever to the fact the governance of these courts lies with the Tribal Councils and non-tribal members cannot vote for tribal council members—organizations that continuously (and erroneously) state that they are a “sovereign nation.” (Actually, they are ‘domestic dependent sovereigns’. It is known they don’t like that designation, which is why they are seeking instead to become a ‘nation-state’ with all the authorities that go along with that status. However, that would also be a violation of the Constitution since that would establish a nation within our nation, and since all tribal members are citizens, it would constitute secession. Also, Article IV, Section 3 makes it clear that no new “State shall be formed or erected within the Jurisdiction of any other State;.”)

The Federal government boasts about giving more sovereignty to the tribes, but to what end? And why does it have to come out of the hide of the rest of the non-tribal American citizenry? To those of who deal with these issues regularly, it seems Montana’s elected leadership in the State and in Washington DC has abandoned the non-tribal people and cares not one whit about these compromises of citizenship. It appears to be all about favor the DC leadership can curry with Indian Tribes—and the rest be damned.

What the Indian Reorganization Act Did and Did Not Do

The Indian Reorganization Act (IRA) of 1934 ended the Allotments Act and the assimilation policy put in place by the General Allotment Act of 1887, known as Dawes Severalty Act. The Allotment acts of the time were instituted to liberate Indians from antiquated, backward tribalism.

The sentiment of assimilation had its counter opinion that the effort was a facade erected to justify taking treaty lands from Indians. That position is not without some merit, but cannot fairly be considered to be the entire story.

Be that as it may, in 1934 the IRA was passed which ended further allotments and, in its own words, was “authorized to restore to tribal ownership the remaining surplus lands….” [Emphasis is mine.] Also, Section 3 of the Wheeler-Howard Act known as the IRA states, “That valid rights or claims of any persons to any lands so withdrawn existing on the date of the withdrawal shall not be affected by this Act:” [My emphasis again.]

The facts here are often ignored, and they are:

● The Allotments Act removed tribal ownership of the lands in question; otherwise there would be no need to initiate a Congressional action to restore tribal ownership of remaining and yet unclaimed surplus lands;
● The lands either homesteaded or purchased at the invitation of the Federal government by non-tribal members and still held were not restored to tribal ownership by the IRA; they remain in statute and reality lands removed from tribal ownership. That is the law.

The IRA was intended to foster self-determination of the tribes and to protect non-indian citizens who had settled the area—again, at the invitation of the United States Government (USG). Important safeguards for homesteaders and settlers that legally settled within the boundaries of the reservation on their own lands—lands for which they hold the federal patent of ownership—are embodied in both Sections 3 and 5 of the IRA. This is only fair given that the people who risked it all to come out to Montana to homestead were certainly not instructed that once they had fulfilled their homestead obligation they would not own or have authority over their acquired land regardless! No, these homesteaders and settlers own and hold lands removed from tribal control.

Politically there has long been an effort to ignore, hide, and obscure the reality of the above facts. Non-tribal owners of their lands have had to endure withering assaults from a nation unaware of the realities of what occurred here. Far too many people from elsewhere in the United States and in particular in Washington DC are mired in the Zeitgeist of victimology trending today. The politics of ‘oppressor vs the oppressed’ propaganda works against the truth and is poisoning relations between the tribes and American citizens who live, not “on” the reservation, but on their own land that happens to be within the boundaries of the original reservation.

With the Water Confiscation Act (Montana Water Rights Protection Act, or MWRPA), the people of Northwest Montana saw their legitimate concerns ignored and brushed aside in favor of the desires, wishes, impulses, and wants of the Confederated Salish and Kootenai Tribes (CSKT) and the Federal government. Now they see our Federal government seeking to place American citizens under a court working for a tribal government new to the entire system of common law and justice developed by western civilization over hundreds of years. This, like the WCA, is just another encroachment; another effort by tribes to become ‘nation-states’ with power over those helpless to affect governance through the ballot. It is hard to imagine anything more un-American. Only totalitarian dictatorships are comparable.

We must be alert to the propaganda of the tribes where the answer to every question even before they hear it is that they must have greater sovereignty. In fact, these problems would be better addressed if they had less sovereignty. They could pay more into the local taxation systems, thus pay for better policing, and have greater participation in the local community. That, however, would stand in the way of their drive to become independent ‘nation-states’ within the borders of the United States. It would block their drive towards secession.

We arrive where we are today because of our Federal government and the actions of people and politicians long gone. The buffalo are gone; the short-lived nomadic days of wandering tribes made possible by the introduction of European horses are gone—as are the endless inter-tribal wars, the abuses of the Indian agencies, and so forth. We need a 21st Century relationship with today’s tribes—not a 19th Century one. There is no going back.

The bottom line is that the non-tribal people living here on their own land are not illegal invaders or squatters in a foreign land; this is our home and we own it, and we will not be the subjects of a would-be foreign power claiming ‘sovereign nation’ status within the borders of our own country. The further encroachment embodied by the PROTECT Act will not be accepted and, if passed in its current form, will likely engender a response of some kind—the least of which being reflected at the ballot box in 2026.

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Editor’s Note: In fact, the Protect Act will enable all reservations in all states to put non-tribal citizens in Tribal Courts.  All US citizens. Anywhere someone travels that crosses or enters a Tribal Reservation (where the rules may be different one to the next) would put them under tribal jurisdiction.