Creating Bright-Line Rules for Tribal Court Jurisdiction Over Non-Indians: The Case of Trespass to Real Property

The 2010 passage of the Tribal Law and Order Act will invest significantly more resources in tribal courts. As tribal courts expand, conflicts between sovereignties - tribal, state, and federal - are likely to occur with much greater frequency. Tribal court civil jurisdiction over non-Indians will be among the issues most frequently appealed to federal courts. I offer this piece to propose a new and novel solution - that tribal courts, through a piecemeal process, be extended absolute civil jurisdiction over non-Indians for those civil offenses over which tribes have the greatest interest.

This article takes one of the most common jurisdictional questions - tribal court jurisdiction over non-Indians in case of trespass to land - and argues that a bright-line rule favoring tribal court civil jurisdiction in this instance is legally mandated, will pragmatically conserve judicial resources, and recognizes the broad tribal sovereignty recently reaffirmed by Congress.