FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY JANE WILSON,
Plaintiff-Appellee, Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â No. 96-35145
v. Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â D.C. No.
                           CV-92-00127-PGH
THOMAS DAVID MARCHINGTON;
INLAND EMPIRE SHOWS, INC., Â Â Â Â Â Â Â Â Â Â Â Â Â Â OPINION
Defendants-Appellants.
Appeal from the United States District Court
for the District of Montana
Paul G. Hatfield, District Judge, Presiding
Argued and Submitted
July 22, 1997–Seattle, Washington
Filed September 23, 1997
Before: Eugene A. Wright, Stephen Reinhardt, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Thomas
_________________________________________________________________
SUMMARY
The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 1994 by Barclays Law Publishers.
_________________________________________________________________
Torts/Litigation and Procedure
The court of appeals reversed a judgment of the district
court. The court held that principles of full faith and credit do
not govern a federal court’s recognition and enforcement of
an Indian tribal court judgment.
                12443
While driving on U.S. Highway 2 within the boundaries of
the Blackfeet Indian Reservation in Montana, appellee Mary
Jane Wilson was involved in a traffic accident with appellant
Thomas Marchington. Wilson, an enrolled member of the
Blackfeet Indian Tribe, sued Marchington and his employer,
appellant Inland Empire Shows, Inc., in Tribal Court. There
she won a judgment that was upheld by the Blackfeet
Supreme Court.
Alleging that her judgment was entitled to full faith and
credit or comity, Wilson sued in federal court to enforce it.
The district court granted summary judgment in her favor.
Marchington and Inland Empire appealed, contending that
the judgment was not entitled to full faith and credit because
Indian tribes are not “territories or possessions ” of the United
States. They also asserted that principles of comity were inap-
plicable because the Tribal Court lacked subject-matter juris-
diction due to the location of the accident on a Montana right-
of-way.
[1] No legal judgment has effect beyond the limits of the
sovereignty from which its authority is derived. Because
states and Indian tribes coexist as sovereign governments,
they have no direct power to enforce their judgments in each
other’s jurisdictions. The Constitution and its implementing
legislation, 28 U.S.C. S 1738, require that full faith and credit
be given to judgments of sister states, territories, and posses-
sions of the United States. The extent to which the United
States, or any state, honors the judicial decrees of foreign
nations is a matter of choice, governed by comity.
[2] By its terms, the Full Faith and Credit Clause applies
only to the states. Thus, the Constitution does not afford full
faith and credit to Indian tribal judgments. [3] The Supreme
Court has not ruled on the issue of whether tribes are
“territories or possessions” of the United States. [4] The deci-
sive factor in determining Congress’s intent was the enact-
                12444
ment of statutes that expressly extended full faith and credit
to certain tribal proceedings: the Indian Land Consolidation
Act (certain actions involving trust, restricted or controlled
lands), the Maine Indian Claims Settlement Act (requiring
Passamaquoddy Tribe, Penobscot nation, and State of Maine
to give full faith and credit to judicial proceedings of each
other), and the Indian Child Welfare Act (extending full faith
and credit to tribal custody proceedings).
[5] A later legislative act can be regarded as an interpreta-
tion of an earlier act and is entitled to great weight in resolv-
ing ambiguities and doubts. If full faith and credit had already
been extended to Indian tribes, enactment of the Indian Land
Consolidation Act, the Maine Indian Claims Settlement Act,
and the Indian Child Welfare Act would not have been neces-
sary. The separate listing of territories, possessions, and
Indian tribes in the Indian Child Welfare Act provides an indi-
cation that Congress did not view these terms as synonymous.
Congress did not extend full faith and credit to the tribes
under S 1738.
[6] In the absence of a congressional extension of full faith
and credit, recognition and enforcement of tribal judgments in
federal courts must rest on principles of comity. [7] Federal
courts must neither recognize nor enforce tribal judgments if
the tribal court did not have both personal and subject-matter
jurisdiction, or the defendant was not afforded due process of
law. In addition, a federal court may in its discretion decline
to recognize and enforce a tribal judgment on equitable
grounds, including: (1) the judgment was obtained by fraud;
(2) the judgment conflicts with another final judgment that is
entitled to recognition; (3) the judgment is inconsistent with
the parties’ contractual choice of forum; or (4) recognition of
the judgment or the cause of action on which it is based is
against the public policy of the United States or the forum
state in which recognition is sought.
[8] Lack of personal jurisdiction mandates rejection of a
tribal judgment, and the existence of subject-matter jurisdic-
                12445
tion is a threshold inquiry in virtually every federal examina-
tion of a tribal judgment. Additionally, the existence of
subject-matter jurisdiction is mandatory under the Uniform
Foreign Money-Judgments Recognition Act, which has been
adopted by Montana. Accordingly, the existence of both per-
sonal and subject-matter jurisdiction is a necessary predicate
for federal court recognition and enforcement of a tribal judg-
ment. [9] A federal court must also reject a tribal judgment if
the defendant was not afforded due process of law.
[10] Comity does not require that a tribe utilize judicial
procedures identical to those used in the United States Courts.
Extending comity to tribal judgments is not an invitation for
federal courts to exercise unnecessary judicial paternalism in
derogation of tribal self-governance.
[11] The question of whether a reciprocity requirement
ought to be imposed on an Indian tribe before its judgments
may be recognized is essentially a public policy question best
left to the executive and legislative branches. [12] Neither the
State of Montana nor Congress has spoken on this question,
and controlling caselaw concerning recognition of foreign
judgments does not require a district court to reject a tribal
judgment for lack of reciprocity.
[13] Lack of tribal jurisdiction and absence of due process
are the only mandatory reasons for a district court to reject a
tribal judgment. The court may in its discretion choose not to
honor a tribal judgment for one of the other enumerated rea-
sons.
[14] The court of appeals applies federal common law
when a federal rule of decision is necessary to protect
uniquely federal interests. Indian law is uniquely federal in
nature, having been drawn from the Constitution, treaties, leg-
islation, and judicially made Indian law. State law, especially
compacts between a state and a tribe, may be of substantial
significance in a particular case.
                12446
[15] The tribal judgment was not entitled to recognition or
enforcement because the tribal court lacked subject-matter
jurisdiction. [16] Tribal courts may not entertain claims
against nonmembers arising out of accidents on state high-
ways, absent a statute or treaty authorizing the tribe to govern
the conduct of nonmembers on the highway in question. [17]
U.S. Highway 2 is a state highway constructed on a right-of-
way granted to the State of Montana pursuant to a federal stat-
ute. [18] The tribe consented to the grant, [19] and the public
has unrestricted access to it.
[20] The question of whether the accident occurred on or
off Highway 2 was disputed by the parties. However, the dis-
trict court found that the accident occurred on Highway 2.
There were facts in the record that supported the court’s con-
clusion. Given these facts, there was no clear error in the
court’s determination.
[21] Even when the accident occurs on alienated land, a tort
action may be brought in tribal court if necessary for either
(1) regulation of consensual relationships, or (2) regulation of
conduct that threatens or has some direct effect on the politi-
cal integrity, economic security, or health or welfare of the
tribe. A car accident on a public highway does not meet either
exception.
[22] Because the tribal court did not have subject-matter
jurisdiction, Wilson’s judgment could not be recognized or
enforced in the United States courts.
_________________________________________________________________
COUNSEL
William O. Bronson, James, Gray, Bronson & Swanberg,
Great Falls, Montana, for the defendants-appellants.
Channing J. Hartelius and Cameron Ferguson, Hartelius, Fer-
guson, Baker & Kazda, Great Falls, Montana, for the
plaintiff-appellee.
                12447
Jeanne S. Whiteing, Whiteing & Smith, Boulder, Colorado
and Donald G. Kittson, Browning, Montana, for Amicus
Curiae, Blackfeet Tribe.
George C. Dalthorp and Michael E. Webster, Crowley,
Haughey, Hanson, Toole & Dietrich, Billings, Montana, for
Amicus Curiae, National Association of Independent Insurers.
Paul R. Haffeman, Davis, Hatley, Haffeman & Tighe, Great
Falls, Montana, for Amicus Curiae, Glacier Electric Coopera-
tive, Inc.
Harley R. Harris, Office of Attorney General, Helena, Mon-
tana, for Amicus Curiae, State of Montana.
K. Jerome Gottschalk, Native American Rights Fund, Boul-
der, Colorado, for Amicus Curiae, The Three Affiliated Tribes
of the Fort Berthold Reservation, and the Chippewa Cree
Tribe of the Rocky Boy’s Reservation.
Charles G. Cole, Steptoe & Johnson, Washington, D.C., for
Amicus Curiae, Burlington Northern Railroad Company.
Steven J. Lechner, Denver, Colorado, for Amicus Curiae,
Mountain States Legal Foundation.
Lana E. Marcussen, Albuquerque, New Mexico, for Amicus
Curiae, The Bighorn Livestock Association.
_________________________________________________________________
OPINION
THOMAS, Circuit Judge:
This appeal presents the question of whether, and under
what circumstances, a tribal court tort judgment is entitled to
recognition in the United States Courts. We conclude that the
                12448
principles of comity, not full faith and credit, govern whether
a district court should recognize and enforce a tribal court
judgment. In this instance, because the tribal court lacked
jurisdiction, its judgment is not entitled to recognition in the
United States courts.
I
The traffic accident which precipitated this action involved
Mary Jane Wilson, who is an enrolled member of the Black-
feet Indian Tribe, and Thomas Marchington, who is not. On
July 17, 1989, Marchington was driving on U.S. Highway 2
within the boundaries of the Blackfeet Indian Reservation in
Montana on assignment for his employer Inland Empire
Shows, an Idaho carnival company. Wilson, driving ahead of
Marchington on the two-lane road, signalled a left turn. Mar-
chington, in ignorance or in disregard of Wilson’s intent,
attempted to pass her on the left, careening into her car as she
exited Highway 2.
Wilson sued Marchington and Inland Empire in the Black-
feet Tribal Court. The tribal jury found in favor of Wilson and
awarded her $246,100. The Blackfeet Court of Appeals
reversed for a hearing on whether punitive damages had been
improperly awarded, but the Blackfeet Supreme Court
reversed the Blackfeet Court of Appeals and reinstated the
original judgment in favor of Wilson.
Claiming her judgment was entitled to full faith and credit
or comity, Wilson brought suit in the United States District
Court for the District of Montana to register the tribal court
judgment in the federal court system. The district court
granted summary judgment in favor of Wilson.
II
[1] No legal judgment has any effect, of its own force,
beyond the limits of the sovereignty from which its authority
                12449
is derived. Because states and Indian tribes coexist as sover-
eign governments, they have no direct power to enforce their
judgments in each other’s jurisdictions. By contrast, the
United States Constitution and implementing legislation
require full faith and credit be given to judgments of sister
states, territories, and possessions of the United States. U.S.
Const. art. IV, S 1, cl. 1; 28 U.S.C. S 1738. The extent to
which the United States, or any state, honors the judicial
decrees of foreign nations is a matter of choice, governed by
“the comity of nations.” Hilton v. Guyot, 159 U.S. 113, 163
(1895).
Determining comity to be a proper basis for recognizing a
tribal court judgment is not a remarkable notion; indeed, both
parties agree that it is appropriate. However, Wilson asserts
comity only as an alternative analysis, contending that a tribal
judgment must be recognized by the United States under 28
U.S.C. S 1738, the implementing legislation of the United
States Constitution’s Full Faith and Credit Clause.
The Constitution’s Full Faith and Credit Clause provides:
   Full Faith and Credit shall be given in each State to
   the public Acts, Records, and judicial Proceedings of
   every other State. And the Congress may by general
   Laws prescribe the Manner in which such Acts,
   Records and Proceedings shall be proved, and the
   Effect thereof.
U.S. Const. art. IV, S 1.
[2] By its terms, the Full Faith and Credit Clause applies
only to the states. Nothing in debates of the Constitutional
Convention concerning the clause indicates the framers
thought the clause would apply to Indian tribes. The Constitu-
tion is silent about recognition of tribal judgments, though it
specifically addresses other tribal concerns. See U.S. Const.
art. I, S 2, cl. 3 (excluding non-taxed Indians from the calcula-
                12450
tion of representative apportionment); art. I, S 8, cl. 3 (provid-
ing Congress the power to regulate commerce with the Indian
tribes); amend. XIV, S 2 (excluding non-taxed Indians from
the calculation of representative apportionment). 1 Thus, the
Constitution itself does not afford full faith and credit to
Indian tribal judgments.
Initial legislation implementing the full faith and credit
clause was passed in 1790. The statute was modified in 1804
to include the extension of full faith and credit to United
States territories and possessions. Subsequent technical
amendments were made and the current full faith and credit
statute reads in relevant part:
   Such Acts, records, and judicial proceedings or cop-
   ies thereof, so authenticated, shall have the same full
   faith and credit in every court within the United
   States and its Territories and Possessions as they
   have by law or usage in the courts of such State, Ter-
   ritory or Possession from which they are taken.
28 U.S.C. S 1738.
[3] Because Indian nations are not referenced in the statute,
the question is whether tribes are “territories or possessions”
of the United States under the statute. The United States
Supreme Court has not ruled on the precise issue and its pro-
nouncements on collateral matters are inconclusive. For
example, in United States ex rel. Mackey v. Coxe, 59 U.S. (18
How.) 100, 103-04 (1855), the Court held the Cherokee
nation was a territory as that term was used in a federal letters
of administration statute. By contrast, in New York ex rel.
_________________________________________________________________
1 Additionally, as a matter of constitutional philosophy, it may not make
sense to extend the constitutional mandate of full faith and credit “to a
legal system largely outside the purview of the Constitution.” Note,
Recognition of Tribal Decisions in State Courts, 37 Stan. L. Rev. 1397,
1414 (1985).
                12451
Kopel v. Bingham, 211 U.S. 468, 474-75 (1909), the Court
cited with approval Ex Parte Morgan, 20 F. 298, 305 (W.D.
Ark. 1883) in which the district court held that the Cherokee
nation was not a “territory” under the federal extradition stat-
ute. State courts have reached varied results, citing either
Mackey or Morgan as authority, depending on the outcome.2
[4] In our view, the decisive factor in determining Con-
gress’s intent was the enactment of subsequent statutes which
expressly extended full faith and credit to certain tribal pro-
ceedings: the Indian Land Consolidation Act, 25 U.S.C.
SS 2201-2211 (1983) (extending full faith and credit for cer-
tain actions involving trust, restricted or controlled lands), the
Maine Indian Claims Settlement Act, 25 U.S.C. S 1725(g)
(1980) (requiring the Passamaquoddy Tribe, the Penobscot
Nation and the State of Maine to “give full faith and credit to
the judicial proceedings of each other”), and the Indian Child
Welfare Act of 1978, 25 U.S.C. SS 1901 et seq. (extending
full faith and credit to tribal custody proceedings). The Indian
Child Welfare Act provides in relevant part:
   The United States, every State, every territory or
   possession of the United States, and every Indian
   tribe shall give full faith and credit to the public acts,
   records, and judicial proceedings of any Indian tribe
   applicable to Indian child custody proceedings to the
   same extent that such entities give full faith and
   credit to the public acts, records, and judicial pro-
   ceedings of any other entity.
Id. S 1911(d).
_________________________________________________________________
2 Compare Jim v. CIT Fin. Servs., 533 P.2d 751 (N.M. 1975) (citing
Mackey and holding that tribes are entitled to full faith and credit) and In
re Beuhl, 555 P.2d 1334 (Wash. 1976) (citing CIT and concluding that
tribes are entitled to full faith and credit) with Brown v. Babbitt Ford, Inc.,
571 P.2d 689 (Ariz. Ct. App. 1977) (citing Morgan and holding that an
Indian reservation is not a territory for purposes of full faith and credit).
                12452
[5] A later legislative act can be regarded as a legislative
interpretation of an earlier act and “is therefore entitled to
great weight in resolving any ambiguities and doubts.”
Erlenbaugh v. United States, 409 U.S. 239, 243-44 (1972)
(quoting United States v. Stewart, 311 U.S. 60, 64-65 (1940)).
If full faith and credit had already been extended to Indian
tribes, enactment of the Indian Land Consolidation Act, the
Maine Indian Claims Settlement Act, and the Indian Child
Welfare Act would not have been necessary. Further, the sep-
arate listing of territories, possessions and Indian tribes in the
Indian Child Welfare Act provides an indication that Con-
gress did not view these terms as synonymous. Thus, we con-
clude that Congress did not extend full faith and credit to the
tribes under 28 U.S.C. S 1738.
Further, if Congress had specifically intended to include
Indian tribes under the umbrella of 28 U.S.C. S 1738, it could
have easily done so either by specifically referencing them in
the 1804 amendments, or by further amending the statute once
ambiguous judicial constructions appeared. It chose not to,
but rather elected to create a special exception in cases of
Indian child custody determinations and land trusts.
Given this history, it would be imprudent of us to now con-
strue the phrase “territories and possessions ” in the 1804 stat-
ute to assume the meaning of the language Congress used in
the Indian Child Welfare Act (“every territory or possession
of the United States, and every Indian tribe”) (emphasis
added) and Indian Land Consolidation Act.
Certainly, there are policy reasons which could support an
extension of full faith and credit to Indian tribes. Those deci-
sions, however, are within the province of Congress or the
states,3 not this Court. Full faith and credit is not extended to
_________________________________________________________________
3 See, e.g., Okla. Stat. tit. 12, S 728 (permitting the Supreme Court of the
State of Oklahoma to extend full faith and credit to tribal court judg-
ments); Wis. Stat. S 806.245 (granting full faith and credit to judgments
                12453
tribal judgments by the Constitution or Congressional act, and
we decline to extend it judicially.
III
[6] In absence of a Congressional extension of full faith and
credit, the recognition and enforcement of tribal judgments in
federal court must inevitably rest on the principles of comity.
Comity “is neither a matter of absolute obligation, on the one
hand, nor of mere courtesy and good will, upon the other.”
Hilton v. Guyot, 159 U.S. 113, 163-64 (1895). As a general
policy, “[c]omity should be withheld only when its accep-
tance would be contrary or prejudicial to the interest of the
nation called upon to give it effect.” Somportex Ltd. v. Phila-
delphia Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir.
1971). At its core, comity involves a balancing of interests.
“[I]t is the recognition which one nation allows within its ter-
ritory to the legislative, executive, or judicial acts of another
nation, having due regard both to international duty and con-
venience, and to the rights of its own citizens, or of other per-
sons who are under the protection of its laws.” Hilton, 159
U.S. at 164. Although the status of Indian tribes as
“dependent domestic nations” presents some unique circum-
stances, comity still affords the best general analytical frame-
work for recognizing tribal judgments.
[7] As we recognized in Her Majesty the Queen v. Gilbert-
son, 597 F.2d 1161, 1163 n.4 (9th Cir. 1979), Hilton provides
the guiding principles of comity.4 More recently, the Restate-
_________________________________________________________________
of Wisconsin Indian tribal courts); Wyo. Stat. Ann.S 5-1-111 (granting
full faith and credit to judicial decisions of the Eastern Shoshone and
Northern Arapaho Tribes of the Wind River Reservation). Montana has
judicially refused to extend full faith and credit to tribal orders, judgments
and decrees. In re Day, 900 P.2d 296, 301 (Mont. 1995).
4 [W]here there has been opportunity for a full and fair trial abroad
   before a court of competent jurisdiction, conducting the trial upon
                12454
ment (Third) of Foreign Relations Law of the United States
(1986) [hereinafter Restatement (Third)] suggested two man-
datory and six discretionary grounds for non-recognition of
foreign judgments.5 While Hilton and the Restatement (Third)
_________________________________________________________________
   regular proceedings, after due citation or voluntary appearance of
   the defendant, and under a system of jurisprudence likely to
   secure an impartial administration of justice between the citizens
   of its own country and those of other countries, and there is noth-
   ing to show either prejudice in the court, or in the system of laws
   under which it was sitting, or fraud in procuring the judgment, or
   any other special reason why the comity of this nation should not
   allow it full effect, the merits of the case should not, in an action
   brought in this country upon the judgment, be tried afresh, as on
   a new trial or an appeal, upon the mere assertion of the party that
   the judgment was erroneous in law or in fact.
Hilton, 159 U.S. at 202-03.
5 The Restatement (Third) S 482 provides:
   (1) A court in the United States may not recognize a judgment
   of the court of a foreign state if:
   (a) the judgment was rendered under a judicial system that
   does not provide impartial tribunals or procedures com-
   patible with due process of law; or
   (b) the court that rendered the judgment did not have juris-
   diction over the defendant in accordance with the law
   of the rendering state and with the rules set forth in
   S 421.
   (2) A court in the United States need not recognize a judgment
   of the court of a foreign state if:
   (a) the court that rendered the judgment did not have juris-
   diction of the subject matter of the action;
   (b) the defendant did not receive notice of the proceedings
   in sufficient time to enable him to defend;
   (c) the judgment was obtained by fraud;
   (d) the cause of action on which the judgment was based,
   or the judgment itself, is repugnant to the public policy
   of the United States or of the State where recognition
   is sought;
                12455
provide sound guidance for assessing legal judgments of other
nations, special considerations arising out of existing Indian
law merit some modification in the application of comity to
tribal judgments. In synthesizing the traditional elements of
comity with the special requirements of Indian law, we con-
clude that, as a general principle, federal courts should recog-
nize and enforce tribal judgments. However, federal courts
must neither recognize nor enforce tribal judgments if:
   (1) the tribal court did not have both personal and
   subject matter jurisdiction; or
   (2) the defendant was not afforded due process of
   law.
In addition, a federal court may, in its discretion, decline to
recognize and enforce a tribal judgment on equitable grounds,
including the following circumstances:
   (1) the judgment was obtained by fraud;
   (2) the judgment conflicts with another final judg-
   ment that is entitled to recognition;
   (3) the judgment is inconsistent with the parties’
   contractual choice of forum; or
   (4) recognition of the judgment, or the cause of
   action upon which it is based, is against the
   public policy of the United States or the forum
_________________________________________________________________
   (e) the judgment conflicts with another final judgment that
   is entitled to recognition; or
   (f) the proceeding in the foreign country was contrary to an
   agreement between the parties to submit the controversy
   on which the judgment is based to another forum.
                12456
   state in which recognition of the judgment is
   sought.
[8] The lack of personal jurisdiction mandates rejection of
a foreign judgment under the Restatement (Third) and that
requirement must logically extend to tribal judgments.
Although the Restatement (Third) lists subject matter jurisdic-
tion as a discretionary inquiry, the existence of subject matter
jurisdiction is a threshold inquiry in virtually every federal
examination of a tribal judgment. E.g., Strate v. A-1 Contrac-
tors, _______U.S._______, 117 S. Ct. 1404, 1411, 137 L. Ed. 2d 661
(1997); Montana v. United States, 450 U.S. 544, 565-66
(1981). Additionally, the existence of subject matter jurisdic-
tion is mandatory under the Uniform Foreign Money-
Judgments Recognition Act which has been adopted by
twenty-five states, including Montana. Louise E. Teitz, Trans-
national Litigation 253 & n.5 (1996); Mont. Code Ann. S 25-
9-601 et seq. Accordingly, the existence of both personal and
subject matter jurisdiction is a necessary predicate for federal
court recognition and enforcement of a tribal judgment.
[9] A federal court must also reject a tribal judgment if the
defendant was not afforded due process of law. “It has long
been the law of the United State that a foreign judgment can-
not be enforced if it was obtained in a manner that did not
accord with the basics of due process.” Bank Melli Iran v.
Pahlavi, 58 F.3d 1406, 1410 (9th Cir.), cert. denied,
_______U.S._______, 116 S. Ct. 519, 133 L. Ed. 2d 427 (1995). The
guarantees of due process are vital to our system of democ-
racy. We demand that foreign nations afford United States cit-
izens due process of law before recognizing foreign
judgments; we must ask no less of Native American tribes.
Due process, as that term is employed in comity, encom-
passes most of the Hilton factors, namely that there has been
opportunity for a full and fair trial before an impartial tribunal
that conducts the trial upon regular proceedings after proper
service or voluntary appearance of the defendant, and that
                12457
there is no showing of prejudice in the tribal court or in the
system of governing laws. Further, as the Restatement (Third)
noted, evidence “that the judiciary was dominated by the
political branches of government or by an opposing litigant,
or that a party was unable to obtain counsel, to secure docu-
ments or attendance of witnesses, or to have access to appeal
or review, would support a conclusion that the legal system
was one whose judgments are not entitled to recognition.”
Restatement (Third) S 482 cmt. b.
[10] Comity does not require that a tribe utilize judicial
procedures identical to those used in the United States Courts.
“Foreign-law notions are not per se disharmonious with due
process by reason of their divergence from the common-law
notions of procedure.” Panama Processes, S.A. v. Cities Serv.
Co., 796 P.2d 276, 286 n.36 (Okla. 1990). Indeed, Hilton
rejected challenges to a judgment based on lack of adequate
cross-examination and unsworn testimony. 159 U.S. at 205.
Federal courts must also be careful to respect tribal jurispru-
dence along with the special customs and practical limitations
of tribal court systems. Extending comity to tribal judgments
is not an invitation for the federal courts to exercise unneces-
sary judicial paternalism in derogation of tribal self-
governance. However, the tribal court proceedings must
afford the defendant the basic tenets of due process or the
judgment will not be recognized by the United States.
Marchington urges us to require reciprocal recognition of
judgments as an additional mandatory prerequisite. In Hilton,
the Supreme Court determined that a judgment from a foreign
country would not be enforced by the United States courts if
the foreign country would not enforce a similar American
judgment in its courts. 159 U.S. at 210. However, the reci-
procity requirement has fallen into disfavor. In Banco
Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), the
Supreme Court stated, “[a]lthough Hilton v. Guyot . . . con-
tains some broad language about the relationship of reciproc-
ity to comity, the case in fact imposed a requirement of
                12458
reciprocity only in regard to conclusiveness of judgments, and
even then only in limited circumstances.” Id. at 411. Accord-
ing to the Restatement (Second) of Conflict of Laws (1988)
[hereinafter Restatement (Second)], “[e]xcept when otherwise
required by local statute, the great majority of State and fed-
eral courts have extended recognition to judgments of foreign
nations without regard to any question of reciprocity.” S 98
cmt. f. The Restatement (Second) addresses the Hilton
problem by noting that the decision involved “one isolated
situation,” and suggesting that Hilton be limited to its facts.
Id. Additionally, Judge Learned Hand has observed that the
Supreme Court “certainly did not mean to hold that an Ameri-
can court was to recognize no obligations or duties arising
elsewhere until it appeared that the sovereign of the locus
reciprocally recognized similar obligations existing here. That
doctrine I am happy to say is not a part of American
jurisprudence.” Direction der Disconto-Gesellschaft v. United
States Steel Corp., 300 F. 741, 747 (S.D.N.Y. 1924), aff’d,
267 U.S. 22 (1925); see Cunard S.S. Co. Ltd. v. Salen Reefer
Servs. AB, 773 F.2d 452, 460 (2d Cir. 1985).
Although courts have expressed disaffection for the reci-
procity requirement, they have not entirely disavowed it. For
example, in Gilbertson, we recognized that “the reciprocity
requirement has fallen into some disfavor,” 597 F.2d at 1164
n.6, and agreed that “reciprocity may no longer be a
requirement,” id. at 1165-66. However, we also noted that
reciprocity “certainly remains a factor which may be consid-
ered in deciding whether to recognize a foreign country’s
judgment for taxes.” Id. at 1166.
The general rationale underlying rejection of the reciprocity
requirement is that it is a matter of diplomacy, best negotiated
by the executive and legislative branches. There are, of
course, substantive differences between foreign relations with
other nations and domestic relations with Native American
tribes. Further, a policy of requiring reciprocity with foreign
nations has practical limits which would not affect a domestic
                12459
analysis. If a litigant sought recognition of a Djibouti judg-
ment in Montana, for example, it is unlikely that Djibouti
would have had the prior opportunity to consider recognition
of a Montana judgment.
[11] Despite these dissimilarities, the theory that the impo-
sition of a reciprocity requirement is not a matter for courts
to decide independently is generally sound. The question of
whether a reciprocity requirement ought to be imposed on an
Indian tribe before its judgments may be recognized is essen-
tially a public policy question best left to the executive and
legislative branches. The fact that some states have chosen to
impose such a condition by statute reinforces this conclusion,6
as does the judicial response of looking to applicable statutes
to decide reciprocity issues. See, e.g., Banque Libanaise Pour
le Commerce v. Khreich, 915 F.2d 1000, 1003-04 (5th Cir.
1990) (examining the Texas Recognition Act to determine if
an Abu Dahbi judgment should be enforced).
[12] Neither the State of Montana nor, more relevantly,
Congress has spoken on this question and we do not believe
that Hilton or any controlling case law concerning recognition
of foreign judgments requires a district court to reject a tribal
judgment for lack of reciprocity. Thus, we decline Marching-
_________________________________________________________________
6 See, e.g., S.D. Codified Laws S 1-1-25 (2)(b) (permitting South Dakota
courts to recognize a tribal judgment if the courts of that tribe recognize
the orders and judgments of the South Dakota courts); Okla. Stat. tit. 12,
S 728(B) (allowing the Supreme Court of Oklahoma to recognize tribal
court judgments where the tribal courts agree to grant reciprocity of judg-
ments); Wis. Stat. S 806.245(1)(e) (granting full faith and credit to judg-
ments of Wisconsin Indian tribal court judgments if, inter alia, the tribe
grants full faith and credit to the judgments of Wisconsin courts); Wyo.
Stat. Ann. S 5-1-111(a)(iv) (granting full faith and credit to the Eastern
Shoshone and Northern Arapaho Tribes if, inter alia, the tribal court certi-
fies that it grants full faith and credit to the orders and judgments of Wyo-
ming).
                12460
ton’s suggestion to adopt reciprocity as a judicially-created
mandatory requirement.7
[13] Lack of tribal jurisdiction and absence of due process,
then, are the only mandatory reasons for a district court to
reject a tribal judgment. The court may, in the exercise of its
discretion, choose not to honor a tribal judgment for one of
the other enumerated reasons. This approach satisfies two
competing concerns: it provides tribes with a mechanism by
which the judgments of their courts may be recognized by the
United States while assuring defendants of due process of law
and other safeguards inherent in our judicial system.
IV
[14] We reject the assertions of Marchington and several
Amicus Curiae that the recognition of tribal judgments
requires the application of state, rather than federal, law. We
apply federal common law when a federal rule of decision is
“necessary to protect uniquely federal interests. ” Banco
Nacional de Cuba v. Sabbatino, 376 U.S. 398, 426 (1964).
Indian law is uniquely federal in nature, having been drawn
from the Constitution, treaties, legislation, and an “intricate
web of judicially made Indian law.” Oliphant v. Suquamish
Indian Tribe, 435 U.S. 191, 206 (1978). State law, especially
the compacts between a state and a tribe, may be of substan-
tial significance in a particular case. However, the quintessen-
tially federal character of Native American law, coupled with
the imperative of consistency in federal recognition of tribal
court judgments, by necessity require that the ultimate deci-
_________________________________________________________________
7 Whether a district court may, in the exercise of its discretion, reject a
judgment for lack of reciprocity is a question we leave for another day.
Although best left to our sister branches of government, there may be an
appropriate case in which the record demonstrates significant public pol-
icy factors which might be sufficient for the district court to consider reci-
procity under the “public policy” discretionary exception. Thus, we
decline to endorse or preclude its discretionary consideration in a proper
case.
                12461
sion governing the recognition and enforcement of a tribal
judgment by the United States be founded on federal law.
Chilkat Indian Village v. Johnson, 870 F.2d 1469, 1473 (9th
Cir. 1989); see also In re Greene, 980 F.2d 590, 595 (9th Cir.
1992) (“[T]he [district] court should have looked at the scope
of tribal immunity under federal law, rather than the extent of
comity afforded under state law.”).
V
[15] Applying the comity analysis to this case, we find that
the tribal judgment is not entitled to recognition or enforce-
ment because the tribal court lacked subject matter jurisdic-
tion, one of the mandatory reasons for refusing to recognize
a tribal court judgment. Our jurisdictional determination is
commanded by Strate v. A-1 Contractors, _______U.S._______, 117 S.
Ct. 1404, 137 L. Ed. 2d 661 (1997), decided April 28, 1997.
[16] The Supreme Court’s holding in Strate is succinctly
stated in its opening paragraphs: “[T]ribal courts may not
entertain claims against nonmembers arising out of accidents
on state highways, absent a statute or treaty authorizing the
tribe to govern the conduct of nonmembers on the highway in
question.” Id. at _______, 117 S. Ct. at 1408.
The Supreme Court analyzed the North Dakota highway at
issue in Strate, and concluded that “[t]he right-of-way North
Dakota acquired for the State’s highway renders the 6.59-
mile stretch equivalent, for nonmember governance purposes,
to alienated, non-Indian land.” Id. at_______, 117 S. Ct. at 1413
(footnote omitted). To arrive at this conclusion, the Supreme
Court made the following observations about the highway
right-of-way: (1) the right-of-way was obtained pursuant to
congressional legislation; (2) the grant of the right-of-way
was acquired with the consent of the Indian tribe; (3) the
right-of-way is open to the public; and (4) the right-of-way is
controlled and maintained by the State. Id. at _______, 117 S. Ct.
at 1414.
                12462
[17] U.S. Highway 2, the road at issue in this appeal, is
similar in all relevant respects to the highway in Strate. It is
located on a right-of-way granted to the State of Montana
under Section 4 of the Act of March 3, 1901, ch. 832, 31 Stat.
1058, 1084 (codified at 25 U.S.C. S 311). Under the section,
the Secretary of the Interior is authorized
   to grant permission . . . to the proper State or local
   authorities for the opening and establishment of pub-
   lic highways in accordance with the laws of the State
   or territory in which the lands are situated, through
   any Indian reservation or through any lands which
   have been allotted in severalty to any individual
   Indians under laws or treaties but which have not
   been conveyed to the allottees with full power of
   alienation.
See also Act of March 4, 1915, ch. 161,S 2, 38 Stat. 1188
(“That the legal authorities charged with the duty of laying
out and opening public roads and highways under the laws of
the State of Montana, having jurisdiction over any territory
embraced within any Indian reservation in Montana, are
hereby authorized and empowered to lay out and open public
roads within any of the said Indian reservations . .. .”). There-
fore, like the highway at issue in Strate, Highway 2 is a state
highway constructed on a right-of-way granted pursuant to a
federal statute.
[18] Also similar to the situation in Strate, the tribe had
consented to the right-of-way grant. Under the Treaty of 1855
with the Blackfeet Nation, the tribe agreed:
   For the purpose of establishing travelling thorough-
   fares through their country, and the better to enable
   the President to execute the provisions of this treaty,
   the aforesaid nations and tribes do hereby consent
   and agree and the United States may, within the
                12463
   countries respective occupied and claimed by them,
   construct roads of every description . . . .
Treaty with the Blackfeet Nation, October 17, 1855, U.S.-
Blackfeet Nation, art. 8, 11 Stat. 867.
[19] Finally, also as in Strate, the district court found, and
no party or Amici denies, that the public has unrestricted
access to Highway 2.
Thus, this case mirrors the facts of Strate almost precisely:
it was an automobile accident between two individuals on a
United States highway designed, built, and maintained by the
State of Montana, with no statute or treaty authorizing the
tribe to govern the conduct of nonmembers on the highway.
The tribe had consented to construction of the road to which
the general public had unrestricted access.
[20] The question of whether the accident occurred on, or
just off, Highway 2 is disputed by the parties. The district
court, however, determined that the accident occurred on
Highway 2, and we review this finding only for clear error.
Campbell v. Wood, 18 F.3d 662, 681 (9th Cir. 1994) (en
banc). There are facts in the record which support the district
court’s conclusion. The accident occurred while Marchington
was trying to pass Wilson who, presumably unknown to Mar-
chington, was turning left. Wilson’s car apparently was struck
in the side. Wilson argues the impact may have occurred just
off Highway 2 because the truck was trying to avoid Wilson
by driving on the left. However, both parties agreed that the
State of Montana’s right-of-way did not end at the pavement
and could have extended up to fifty feet from the center line.
We also note that the description of the accident by the Black-
feet Supreme Court would seem to support the inference that
the accident occurred on Highway 2.8 Given these facts, there
was no clear error in the district court’s determination.
_________________________________________________________________
8 The Blackfeet Supreme Court provides the following account of the
accident: “As plaintiff began her turn off of Highway # 2 onto the Whit-
ford access road defendants’ semi-truck crossed over a solid double yel-
low line running down the center of the highway and struck the left side
of plaintiff’s vehicle causing injuries to her neck and back.”
                12464
[21] In Strate, the Supreme Court noted that even when the
accident occurs on alienated land, a tort action may be
brought in tribal court if one of the two following exceptions
outlined in Montana v. United States, 450 U.S. 544 (1981), is
met: (1) regulation of consensual relationships and (2) regula-
tion of conduct which “threatens or has some direct effect on
the political integrity, the economic security, or the health or
welfare of the tribe.” Montana, 450 U.S. at 566. The Supreme
Court concluded in Strate, however, that a car accident on a
public highway does not meet either Montana exception.
Strate, _______U.S. at _______, 117 S. Ct. at 1415, 1416.
Wilson and several Amici claim that a traffic accident
injuring a tribal member sufficiently affects the economic
security, political integrity, or health and welfare of the tribe,
thus satisfying the second Montana exception. However, in
Strate, this notion was rejected by Justice Ginsburg, speaking
for the Court, who observed that:
   Undoubtedly, those who drive carelessly on a public
   highway running through a reservation endanger all
   in the vicinity, and surely jeopardize the safety of
   tribal members. But if Montana’s second exception
   requires no more, the exception would severely
   shrink the rule.
Id. at _______, 117 S. Ct. at 1415. If the possibility of injuring mul-
tiple tribal members does not satisfy the second Montana
exception under Strate, then, perforce, Wilson’s status as a
tribal member alone cannot.9 To invoke the second Montana
exception, the impact must be “demonstrably serious and
must imperil the political integrity, the economic security, or
_________________________________________________________________
9 We rejected a similar Montana contention in Yellowstone County v.
Pease, 96 F.3d 1169, 1170-71 (9th Cir. 1996) (holding that the Crow tribal
court did not have jurisdiction to enjoin enforcement of a tax because a
dispute involving one particular property owned by a tribal member was
insufficient to invoke the second Montana exception).
                12465
the health and welfare of the Tribe.” Brendale v. Confeder-
ated Tribes & Bands of the Yakima Indian Nation, 492 U.S.
408, 431 (1989). It is difficult to argue that these important
interests will be diminished, much less jeopardized, if Wilson
must present her individual tort claims in state or federal
court, where she has plain, speedy, and adequate remedies.10
As Justice Ginsburg observed, “[n]either regulatory nor adju-
dicatory authority over the state highway accident at issue is
needed to preserve the right of reservation Indians to make
their own laws and be ruled by them. . . . Opening the Tribal
Court for [the plaintiff’s] optional use is not necessary to pro-
tect tribal self government[.]” Strate, _______U.S. at _______, 117 S. Ct.
at 1416 (internal quotation omitted). Thus, although the
parameters of the Strate holding are not fully defined, its
application to the specific circumstances of this case pre-
cludes tribal court jurisdiction.
Finally, the Blackfeet Tribe (as Amicus Curiae), contends
that Hinshaw v. Mahler, 42 F.3d 1178 (9th Cir. 1994), which
found tribal jurisdiction in an automobile accident, controls.
However, Hinshaw has been effectively overruled by Strate
for its general propositions concerning tribal jurisdiction and
is no longer viable law on those issues.
VI
[22] The principles of comity require that a tribal court
have competent jurisdiction before its judgment will be recog-
_________________________________________________________________
10 This is not only true as a general proposition, but equitable tolling
would prevent the assertion of a statute of limitations defense against Wil-
son based on the passage of time litigating in tribal and federal court if
Wilson elects to refile her complaint in state or federal court following
remand. Capital Tracing, Inc. v. United States, 63 F.3d 859, 863 (9th Cir.
1995) (equitable tolling in federal court); Chance v. Harrison, 899 P.2d
537, 539 (Mont. 1995) (equitable tolling in Montana state courts); see also
Burnett v. New York Central Railroad Co., 380 U.S. 424 (1950) (holding
that equitable tolling would apply to an FELA claim timely filed in the
wrong venue).
                12466
nized by the United States courts. Because the tribal court did
not have subject matter jurisdiction over Marchington or
Inland Empire Shows, Inc., Wilson’s judgment may neither
be recognized nor enforced in the United States courts. The
district court foresaw this very result, but constrained by
Hinshaw, entered summary judgment in favor of Wilson.
Ironically, although the district court was correct and even
prescient on all substantive matters, we must reverse its judg-
ment in favor of Wilson and remand with instructions to enter
judgment in favor of Marchington and Inland Empire Shows.
Each party shall bear its own costs on appeal.
REVERSED AND REMANDED