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
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
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