This is the fourth in a series of posts addressing commonly asked questions regarding American Indians, Indian Tribes, and the law. The first post dealt with casinos, taxation, and hunting and fishing rights; the second focused on the relationship between the unique legal treatment of Indian tribes or their members and the U.S. Constitution’s guarantee of equal protection; and the third explored the criminal jurisdiction of tribes. This post will examine the civil jurisdiction of tribes, both over members and especially over non-members, in each its three major forms: regulation, taxation, and adjudication.
As noted in the last post, tribal jurisdiction (not unlike federal and state jurisdiction) is uniquely limited in a manner that reflects the place and circumstances of tribes on the American legal landscape. In particular, each tribe is said to retain its original or inherent jurisdiction—the sovereign authority possessed prior to European contact and the subsequent formation of the United States—except insofar as such jurisdiction has been (1) relinquished or ceded by tribe itself through a treaty or other agreement, (2) expressly abrogated or taken away by Congress, or (3) deemed by the judiciary, especially the U.S. Supreme Court, to have been implicitly lost by virtue of the tribe’s historical circumstances and contemporary status.
Generally speaking, tribal civil jurisdiction over members has been only slightly diminished through relinquishment or implicit loss and has been only moderately diminished through congressional abrogation. Tribes retain the power to form or alter their own governments; to establish and determine tribal membership or citizenship; to prescribe rules for the inheritance of property; to control the use of their natural resources; to regulate domestic relations among tribal members; to impose taxes on tribal members; and to adjudicate cases involving tribal members. Most limitations on tribal civil jurisdiction arise from tribal constitutions and codes themselves, or—and this is the abrogation noted above—from the application of the federal Indian Civil Rights Act, which imposes U.S. Constitution-like outer limits on the exercise of tribal authority.
Tribal civil jurisdiction over non-members, by comparison, has been significantly and predominantly diminished through judicial determinations of implicit loss. Under the framework announced in Montana v. United States (1980) and developed in later cases, there is said to be, absent express authorization by federal statute or treaty, a presumption against tribal civil jurisdiction over non-members in any given instance. This presumption applies to regulation, taxation, or adjudication of non-member conduct, regardless of whether that conduct takes (or took) place on tribal or Indian-owned land within a reservation or on non-Indian-owned land within a reservation. (It is accepted, with some possible narrow exceptions, that tribal authority does not extend beyond the boundaries of the reservation or what is known as Indian Country.)
This presumption may be overcome—such that the tribe will have jurisdiction over the non-member conduct—only if it shown that either (1) the conduct arises out of a consensual relationship with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements, or (2) the conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Neither exception is especially broad, however. The latter exception, in particular, despite the breadth of its wording, has generally been read narrowly by courts, including the U.S. Supreme Court. In Strate v. A-1 Contractors (1997), the Court confined this exception—which “[r]ead in isolation . . . can be misperceived”—as concerning only “the right of reservation Indians to make their own laws and be ruled by them” and therefore as extending no further than “what is necessary to protect tribal self-government or to control internal relations.” Strate itself, for example, involved a motor vehicle accident within reservation boundaries, a matter that one would think concerns the tribe’s health or welfare. Yet the Court concluded that the tribe entirely lacked regulatory or adjudicatory jurisdiction over the accident, or specifically the drivers’ conduct, because the accident did not interfere with the tribe’s ability to govern itself.
In short, as with tribal criminal jurisdiction (though less categorically), the Court has in effect reduced tribal civil jurisdiction from the two traditional bases for sovereignty (territory and citizenship) to just one (citizenship). This is, of course, a plausible though narrow conception of the notion of self-government, but it is one notably at odds with the conception of self-government that animated the founding of the United States and of each of the states over the course of American history.