Incorporation Without Assimilation: Legislating Tribal Civil Jurisdiction Over Non-Members

29 Pages Posted: 23 Sep 2019 Last revised: 6 Nov 2019

See all articles by Alexander Tallchief Skibine

Alexander Tallchief Skibine

University of Utah - S.J. Quinney College of Law

Date Written: September 1, 2019

Abstract

For the last 40 years the Supreme Court has been engaged in a measured attack on the sovereignty of Indian tribes when it comes to tribal court jurisdiction over people who are not members of the tribe asserting that jurisdiction. The Congress has already enacted legislation partially restoring some tribal courts’ criminal jurisdiction over non-members. This Essay proposes to legislatively reconfirm the civil jurisdiction of tribal courts over such non-members. After examining the Supreme Court’s jurisprudence in this area and summarizing the Court’s main concerns with such tribal jurisdiction, this Essay explores various legislative options before settling on a preferred course of action. The proposal set forth in the last part of this Essay would reconfirm tribal court civil jurisdiction over non-members provided the tribal courts has established personal jurisdiction over the parties. However, tribal courts’ determinations on this subject would be appealable to federal courts. Furthermore, the Essay proposes to allow non-members being sued in tribal courts the option of removing their cases to federal courts under certain conditions.

Keywords: Indian tribes, tribal jurisdiction, native law, tribal courts, civil jurisdiction

Suggested Citation

Skibine, Alexander Tallchief, Incorporation Without Assimilation: Legislating Tribal Civil Jurisdiction Over Non-Members (September 1, 2019). UCLA Law Review Discourse, Forthcoming; University of Utah College of Law Research Paper No. 335. Available at SSRN: https://ssrn.com/abstract=3458087 or http://dx.doi.org/10.2139/ssrn.3458087

Alexander Tallchief Skibine (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

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