Background & Facts
After the passage of the Indian Civil Rights Act of 1968, which amended P.L. 280 to require tribal consent before any state could assume jurisdiction over Indian Country, the question arose: what form must that consent take?
The Tribal Council of the Confederated Salish and Kootenai Tribes of the Flathead Reservation passed a resolution purporting to consent to Montana state court jurisdiction. However, the 1968 Act specified that consent must come through "a majority vote of the enrolled Indians within the affected area voting in a special election held for that purpose."
No such referendum was held. The Tribal Council attempted to give consent unilaterally, without putting the question to the enrolled membership. The question before the Supreme Court was whether the Tribal Council's resolution was sufficient to vest Montana with jurisdiction.
The Court's Holding
The Supreme Court held, per curiam, that the Tribal Council's unilateral action was insufficient to vest jurisdiction in Montana state courts. The 1968 Act's consent requirement was mandatory and could only be satisfied by a majority vote of enrolled tribal members in a special election.
Key Holding:
Tribal consent to state jurisdiction under P.L. 280 must be "manifested by a majority vote of the enrolled Indians within the affected area voting in a special election held for that purpose." A tribal council resolution alone is insufficient. The consent requirement is strict and non-waivable.
Key Language
"Title IV of the Civil Rights Act of 1968 provides that the consent of the Indian tribe is required before a State may assume civil or criminal jurisdiction over a reservation. Such consent must be manifested by a majority vote of the enrolled Indians within the affected area voting in a special election held for that purpose."
The Court treated the consent requirement as absolute — no shortcuts, no substitutes, no workarounds. The enrolled members themselves must vote. Even the tribe's own elected government cannot waive this right on behalf of the people.
How This Proves P.L. 280 Requires Consent
The devastating implication: If the Supreme Court treats tribal consent as so sacred that even a duly elected tribal council cannot waive it — if only a direct vote of the enrolled members is sufficient — then jurisdiction imposed in 1953 with zero consent of any kind is fundamentally, irredeemably deficient.
Kennerly establishes a constitutional floor: consent must come from the people, not just their representatives, and certainly not from silence or non-participation. P.L. 280's original imposition failed to meet even the lowest possible standard — it obtained no consent from anyone.
The logical chain is unbreakable:
- 1. After 1968, consent requires a majority vote of enrolled members (Kennerly).
- 2. Even a tribal council cannot give consent on behalf of the people (Kennerly).
- 3. Before 1968, P.L. 280 obtained no consent from anyone — not the council, not the members, not a referendum, nothing.
- 4. If a council resolution is insufficient, then total silence is certainly insufficient.
- 5. Therefore, P.L. 280's 1953 imposition on California tribes is jurisdictionally deficient under the standard the Supreme Court itself established.
Related Cases
- Three Affiliated Tribes v. Wold Engineering (1984/1986) — SCOTUS confirmed twice: no consent = no jurisdiction
- Washington v. Yakima Indian Nation (1979) — Consent framework central to P.L. 280 disputes
- Indian Civil Rights Act of 1968 — The statute that created the consent requirement Kennerly enforced