Tribal Land, Tribal Territory

Abstract

In the summer of 2020, two significant events brought into focus the relationship between Indigenous nations in the United States and the land they govern. First, in a controversy that made national headlines, several tribes in South Dakota clashed with Gov. Kristi Noem about their power to impose Covid-19-related checkpoints on state highways passing through Indian country. Borders have potent symbolism; by detaining drivers even briefly at theirs, the South Dakota tribes made plain that travelers were entering a separate jurisdiction in which different rules and policies applied. At the same time the checkpoint controversy was brewing, the Supreme Court decided the pathbreaking case McGirt v. Oklahoma. While only incidentally about tribal territorial jurisdiction, Justice Gorsuch’s opinion spoke directly to what it means for land to be tribal territory, suggesting that a tribe may retain jurisdiction over a reservation even if parts of it are sold to private owners. This would be an unremarkable statement in any other context, but it is near-revolutionary in federal Indian law, where Supreme Court–created doctrine has left tribes with very little ability to regulate non-Indians on fee land. This Article takes these two developments as a starting point for reflecting on the relationship between tribal land and tribal territory. It aims to undertake a comprehensive account of the varied strands of doctrine the Court has put forth on this subject, including the limits on tribal regulatory authority over fee land under Montana v. United States, the ever-shifting right to exclude that the Court has characterized in numerous and inconsistent ways, and the uncertain relationship between the two. After surveying current doctrine, the Article suggests a reimagining of both Montana and the right to exclude in a way that would facilitate a return to the territorial control tribes traditionally exercised.

Keywords: federal Indian law, McGirt, territoriality