Treating Tribes Differently: Civil Jurisdiction Inside and Outside Indian Country

Abstract:     
Indian tribes, and Indian tribal courts, vary substantially across the United States. Despite these differences, all tribal courts have (and lack) the same jurisdiction. The Supreme Court has treated all tribal courts as different from state courts, and at the same time, all tribal courts as identical to each other.

This Article attempts to analyze why, in the current jurisdictional framework, tribes are treated differently from states but not differently from each other. Two assumptions by the Supreme Court have led to this outcome. First, the Supreme Court has assumed tribal courts are fragile and are threatened by state court concurrent jurisdiction. The Court has suggested that, if given the choice, forum-shopping litigants (particularly non-tribal members) will turn to state courts, undermining tribal court jurisdiction. Second, the Supreme Court has assumed that the non-Indian litigants will generally be disadvantaged in tribal courts, and as such need protection from the exercise of tribal jurisdiction.

This Article these assumptions are flawed and that the actual nature and texture of the tribal court at issue should shape the scope of tribal jurisdiction. When tribes have in fact established courts that are fundamentally different from state courts, an exclusive jurisdiction model may be appropriate, but when tribes have adopted courts that mimic state courts, tribes should have the option of a concurrent jurisdiction model, with the state and the tribe sharing jurisdiction over all disputes involving tribal members and non-tribal members alike.

Accepted Paper Series