Tribal Jurisdiction - A Historical Bargain

36 Pages Posted: 4 Feb 2016 Last revised: 6 Jun 2017

See all articles by Matthew L. M. Fletcher

Matthew L. M. Fletcher

University of Michigan Law School

Leah Jurss

Michigan State University - College of Law

Date Written: February 3, 2016

Abstract

The existing rhetoric surrounding tribal civil jurisdiction over non-Indians often leaves out the historical foundations to that jurisdiction. This article compares the tribal economies of the 18th and 19th centuries with the current environment of gaming and economic development on tribal lands. Though non-Indians and nonmembers occasionally object to tribal jurisdiction, the long history of tribal governance and economic regulation demonstrates that nonmembers have received and continue to receive the benefit of a bargain that places them under considerable tribal regulation in exchange for access to tribal markets.

Through a detailed survey of treaties, tribal statutes, and federal laws covering pre-1970’s tribal economic regulation, this article reveals that non-Indians have continually consented to tribal jurisdiction to access these tribal markets, making outliers of the non-Indians attempting to access tribal markets without consenting to tribal market regulations. Analyzing the laws surrounding the federal and tribal licensing of Indian traders; the Great Lakes fur trade; the marriage laws of the Five Civilized Tribes; and the procedures established for dealing with intruders on Indian lands in the 18th and 19th centuries demonstrates the vast historical underpinnings of the current efforts to retain civil jurisdiction over non-Indians.

Keywords: Indian tribes, tribal courts, jurisdiction, legal history

Suggested Citation

Fletcher, Matthew L. M. and Jurss, Leah, Tribal Jurisdiction - A Historical Bargain (February 3, 2016). Maryland Law Review, Vol. 76, No. 3, 2017, Available at SSRN: https://ssrn.com/abstract=2727283 or http://dx.doi.org/10.2139/ssrn.2727283

Matthew L. M. Fletcher (Contact Author)

University of Michigan Law School ( email )

500 S. State Street
Ann Arbor, MI 48109
United States

HOME PAGE: http://https://michigan.law.umich.edu/faculty-and-scholarship/our-faculty/matthew-lm-fletcher

Leah Jurss

Michigan State University - College of Law ( email )

East Lansing, MI
United States

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