THE SHRINKING SOVEREIGN: TRIBAL ADJUDICATORY JURISDICTION OVER NONMEMBERS IN CIVIL CASES
M. Gatsby Miller *
Tribal jurisdiction over nonmembers is limited to two narrow areas: consensual economic relationships between tribes and nonmem-bers, and nonmember activity that threatens tribal integrity. Even within these two narrow fields, the Supreme Court has stated that tribal adjudicatory power over nonmembersthe authority to decide legal rights of individuals, usually in a trial-like settingcannot exceed the tribes legislative power over nonmembersthe power to regulate non-member activity through the enactment of legislation and regulation. This raises a question that the Court has acknowledged but never answered: whether a tribe may exercise adjudicatory authority over nonmembers as a result of its legislative power. More simply put, is a tribes adjudicatory jurisdiction over nonmembers less than, or equal to, its legislative power?
This Note argues that tribes should have concurrent regulatory and adjudicatory jurisdiction over nonmembers in disputes based on consensual economic relationships, but tribal regulation concerning tribal integrity should be subject to greater federal court oversight. Tribal courts should have presumptive jurisdiction to enforce tribal-integrity regulations; however, proof that the tribal court is unfair or inaccessible to nonmembers should permit federal courts to intervene. By drawing on analogous principles in administrative law, civil proce-dure, and the law of federal courts, this Note provides a workable solu-tion that is consistent with existing Supreme Court tribal law jurispru-dence, that conforms with the normative values shaping jurisdiction in other contexts, and that also respects tribal sovereignty.
The Supreme Court has made it clear: Tribal courts are no longer the exclusive arbiters of issues arising on tribal lands. Over time, the power of tribal courts has shrunk considerably, due to both federal legis-lation1 and judicial decisions.2 Tribal jurisdiction over nonmembers3 has
*. J.D. Candidate 2015, Columbia Law School. 1. See Nell Jessup Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195, 281 (1984) (describing Public Law 280, which authorized states to assume criminal and civil jurisdiction over the Indian reservations . . . with or without the consent of the tribes involved); see also United States v. S. Ute Tribe or Band of Indians, 402 U.S. 159, 163 (1971) (noting purpose of federal law in question was to destroy the tribal structure and to change the nomadic ways of the Utes by forcibly converting them from a pastoral to an agricultural people).
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been limited to two narrow areas: consensual, mostly economic, relation-ships between tribes and nonmembers;4 and nonmember activity that imperil[s] the political integrity, the economic security, or the health and welfare of the tribe.5 Even within these two narrow fields, the Court has further restricted tribal jurisdiction by repeatedly stating that tribal adjudicatory power over nonmembersthe authority to decide the legal rights of individuals, usually in a trial-like settingcannot exceed the tribes legislative power over nonmembersthe power to regulate non-member activity through the enactment of legislation.6 This raises a ques-tion that the Supreme Court has acknowledged but never answered: whether a tribe may exercise adjudicatory authority over nonmembers as a result of its legislative power.7 More simply put, is a tribes adjudicatory jurisdiction less than, or equal to, its legislative power? The resolution of this question concerns the continuing sovereign status of tribes, as well as the due process rights of nonmembers.
Holding that the adjudicatory and legislative jurisdictions of tribes are equal may encourage federal courts to limit both types of jurisdic-tion. Supreme Court precedent has held that federal courts may only review the parts of tribal decisions that establish jurisdiction over a non-member; federal courts have no power to review the substance of the merits of a tribal decision.8 As a result, federal courts can only address bias and due process concerns by removing the issue from tribal
2. See John P. LaVelle, Implicit Divestiture Reconsidered: Outtakes from the Cohens Handbook Cutting-Room Floor, 38 Conn. L. Rev. 731, 732 (2006) [hereinafter LaVelle, Divestiture] ([T]he Supreme Court has [decided] a series of cases imposing additional limitations on tribal authority by means of . . . judicially crafted theory . . . .). 3. Nonmember means any individual who is not a recognized member of the tribe that is attempting to exercise jurisdiction over that individual. See Duro v. Reina, 495 U.S. 676, 686 (1990) (recognizing nonmember as anyone not a member of a tribe), superseded by statute, Act of Oct. 28, 1991, Pub. L. No. 102-137, 105 Stat. 646, as recognized in United States v. Lara, 541 U.S. 193 (2004). 4. Montana v. United States, 450 U.S. 544, 565 (1981) (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.). 5. Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408, 431 (1989). 6. See Cohens Handbook of Federal Indian Law 7.01 (Nell Jessup Newton ed., 2012) [hereinafter Cohens Handbook] (defining adjudicatory and legislative jurisdiction); see also Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997) ([A] tribes adjudicative jurisdiction does not exceed its legislative jurisdiction.). 7. See Cohens Handbook, supra note 6, 7.01 ([T]he extent to which a tribes adjudicative jurisdiction equals or is lesser than a tribes legislative jurisdiction remains an open question.). 8. See, e.g., Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 19 (1987) (Unless a federal court determines that the Tribal Court lacked jurisdiction, however, proper deference to the tribal court system precludes relitigation of issues raised . . . and resolved in the Tribal Courts.).
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adjudicatory and legislative jurisdiction.9 However, limiting adjudicatory jurisdiction would be a substantial encroachment on tribal sovereignty10 and could all but destroy any effective regulatory power that tribal courts have over nonmembers. Because neither of these outcomes is desirable, the Supreme Court has repeatedly avoided resolving the issue,11 leaving both tribes and lower courts without a clear idea of what adjudicatory power tribes may exercise over nonmembers.12
This Note offers a resolution to this dilemma, first, by providing an explanation as to why the Supreme Court has held that these two powers may not be concurrent, and second, by providing a workable solution within the bounds of existing Supreme Court precedent regarding tribal adjudicatory jurisdiction. This solution both respects the due process rights of nonmembers and allows tribes to maintain a robust legislative jurisdiction. By drawing on administrative law13 and the normative values that shape federal and state court jurisdiction,14 this Note argues that tribes should have concurrent regulatory and adjudicatory jurisdiction over nonmembers in disputes based on consensual business relationships (contracts),15 but tribal regulation concerning fundamental tribal integrity (integrity)16 should be subject to greater federal court over-sight: Tribal courts should have presumptive jurisdiction to enforce such regulations; however, proof that a tribal court is unfair or inaccessible to nonmembers should permit federal courts to intervene. Because neither the Supreme Court, nor any legal commentators, have attempted to re-solve the scope of tribal adjudicatory authority within the framework of existing Supreme Court jurisprudence, this Note takes up a previously unaddressed issue: understanding how and why tribal court adjudicatory jurisdiction may be narrower than regulatory jurisdiction.
Part I of this Note begins by explaining the history of tribal jurisdic-tion over nonmembers. Part II then explores the Supreme Courts recognition of the distinction between tribal adjudicatory and regulatory power in Strate v. A-1 Contractors.17 Because the Supreme Court has never
9. See infra Part IV.A.2 (discussing limited federal review of tribal courts and its implications). 10. See infra Part II.B.2 (discussing importance of tribal sovereignty). 11. See infra Part II.B (outlining Supreme Court jurisprudence). 12. Cf. Philip Morris USA, Inc. v. King Mountain Tobacco Co., 569 F.3d 932, 939 (9th Cir. 2009) (noting Supreme Court le[ft] open whether tribes adjudicative jurisdiction over nonmembers is narrower than the legislative jurisdiction). 13. See infra Part III.B (discussing administrative distinction between adjudicatory and legislative functions). 14. See infra Part III.A (comparing tribal jurisdiction to federal and state court jurisdiction). 15. See infra notes 5254 and accompanying text (explaining basis of tribal contracts jurisdiction over nonmembers). 16. See infra notes 5255 and accompanying text (explaining basis of tribal integrity jurisdiction over nonmembers). 17. 520 U.S. 438 (1997).
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