January 01, 2017

Appearing in Tribal Court

There are sometimes good reasons for submitting to a tribal court’s jurisdiction.

Brian K. Nichols

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Comedian Samantha Bee recently aired a segment on her satirical TV news program about the jurisdiction of tribal courts—the authority of tribal nations to hear criminal and civil claims involving non-Indians. The segment wasn’t just funny; it also persuasively made many of the arguments supporters of tribal jurisdiction have used themselves (although not always successfully). Bee primarily focused on issues related to tribal courts’ criminal jurisdiction, but some of the same issues also occur in civil matters and are encountered by non-Indians who do business with tribal nations or on tribal land.

Non-Indian businesses have historically been cautious about litigating in tribal courts, for reasons such as uncertainty about the content of tribal law; uncertainty whether federal law, including preemption defenses, applies in tribal court; the fact that the U.S. Constitution does not apply to tribes or in tribal court; that tribal courts may not be independent of other branches of tribal government; and that non-Indians cannot be citizens or members of tribal nations and therefore usually may not serve on tribal legislatures or juries. Tribal officials are also not subject to the deterrent to wrongful conduct provided by tort claims and civil rights claims under 42 U.S.C. § 1983, in part due to sovereign immunity. Add to this the diversity of tribal governments, tribal treaty rights, and tribal land status, and it is not hard to see why non-Indians carefully consider appearing in tribal court, including on civil matters. And some of these reasons have been noted by the U.S. Supreme Court in its decisions limiting tribal court jurisdiction over non-Indians.

But despite the Supreme Court’s limitations on the extent of tribal court jurisdiction, there may be good reasons for non-Indians to consider consenting to tribal court jurisdiction, expressly or by conducting business on or with tribal nations. One reason is arbitration. Tribal nations are sometimes willing to agree to arbitrate disputes in private, non-Indian forums, although this requires a waiver of sovereign immunity. That waiver may be contingent on agreeing to tribal court jurisdiction to resolve other disputes. In any event, non-Indians should consider this issue before entering into any agreement with tribal members or a tribal nation or doing business on trust or reservation lands; that is because consensual commercial relations with tribes or tribal members may provide tribal courts with regulatory or adjudicatory jurisdiction, or both, over non-Indians and non-Indian business, as set forth in the Supreme Court’s decision in Montana v. United States, 450 U.S. 544, 565 (1981), and its progeny.

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