Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide for Judges

This Article provides a summary of the law of tribal civil jurisdiction over persons who are not members of the governing tribe ("nonmembers'), followed by an analysis of trends in the lower courts. It was written to respond to a consensus view at the University of Colorado Law Review Symposium: "The Next Great Generation of American Indian Law Judges," in January 2010, that a concise, practical, yet indepth treatment of this subject would be useful to the judiciary as well as practitioners. The Article traces the development of the Supreme Court's common law of tribal civil judicial jurisdiction from 1959 through the present. Next, it surveys all published lower federal court decisions from 1997-2010.

Lower courts have upheld exercises of tribal jurisdiction in several cases that fit well within the Supreme Court's increasingly narrow parameters for exercises of tribal authority over nonmembers. Those contexts include: (1) claims arising directly from a nonmember's consensual relationship with the tribe or tribal members, and (2) claims that involve nonmember conduct on tribal lands that either harms the land itself or presents a challenge to the tribe's ability to provide peace and security for tribal members. Despite the emergence of some clarity in the law, it is nonetheless apparent how cumbersome the process of litigating tribal court cases against nonmembers has become. Nonmember defendants challenge even clear examples of tribal jurisdiction, resulting in delay, multiplication of expenses, and insecurity for the parties.

A better sense of the Supreme Court's boundaries for tribal jurisdiction might help to reduce the problems otherwise associated with the double layer of review to which all tribal court cases involving nonmembers are subject.