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

American Indian Law Review, Vol. 35, p. 527, 2011

48 Pages Posted: 14 Jan 2011 Last revised: 2 Aug 2011

Date Written: January 14, 2011

Abstract

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 into federal courts. I offer this piece to propose a new and novel solution; that tribal courts be extended civil jurisdiction in a piecemeal process that vests absolute tribal court 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 cases of trespass to land, and argues that a bright-line rule favoring tribal court jurisdiction in this instance is legally mandated, will pragmatically conserve judicial resources, and recognizes the broad tribal sovereignty recently reaffirmed by Congress.

Keywords: Indian, Tribe, Tribal Court, Jurisdiction, Common Law, Trespass, Indian Country, Native American, tribal law and order act, local, transitory, common law, adjudicatory, regulatory

Suggested Citation

Christensen, Grant, Creating Brightline Rules for Tribal Court Jurisdiction Over Non-Indians: The Case of Trespass to Real Property (January 14, 2011). American Indian Law Review, Vol. 35, p. 527, 2011, Available at SSRN: https://ssrn.com/abstract=1740342

Grant Christensen (Contact Author)

The University of North Dakota ( email )

215 Centennial Dr.
P.O. Box 9003
Grand Forks, ND 58202
United States

HOME PAGE: http://https://und.edu/directory/grant.t.christensen

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