For the last forty years the U.S. 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 U.S. Congress has already enacted legislation partially restoring some tribal courts’ criminal jurisdiction over nonmembers. This Article proposes to legislatively reconfirm the civil jurisdiction of tribal courts over such nonmembers. After examining the Supreme Court’s jurisprudence in this area and summarizing the Court’s main concerns with such tribal jurisdiction, this Article explores various legislative options before settling on a preferred course of action. The proposal set forth in the last part of this Article would reconfirm tribal court civil jurisdiction over nonmembers 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 Article proposes to allow nonmembers being sued in tribal courts the option of removing their cases to federal courts under certain conditions.
The United States began signing treaties with Indian nations in 1778, and in 1831 the U.S. Supreme Court described the Indian nations existing within the territorial boundaries of the United States as domestic dependent nations. Until 1978, Indian nations were thought to possess all the inherent sovereign powers over their territories that had not been taken away by the U.S. Congress or given up in treaties. However, preoccupied by the assertion of tribal jurisdiction over individuals who were not tribal members, the U.S. Supreme Court in 1978 devised what became known as the implicit divesture doctrine. Under that doctrine, Indian tribes are said to have lost all inherent sovereign powers inconsistent with their status as domestic dependent nations. As a result of this doctrine, since 1978, the tribes initially lost all inherent criminal jurisdiction over nontribal members, and as will be explained below, a good deal of civil and regulatory jurisdiction as well.
The Court’s jurisprudence in this area has been almost universally condemned by leading scholars. These scholars have argued that when it comes to gauging tribal civil jurisdiction over nonmembers, the implicit divestiture doctrine is a moribund doctrine of federal common law, unmoored from any congressional policies or constitutional values. It is a doctrine that has been manipulated by the Court to achieve politically desired results. The result has been confusion and disuniformity in the lower courts when it comes to the determination of the extent of tribal jurisdiction.
While some scholars have offered constructive suggestions and insightful alternatives to the doctrine, in the wake of the recent 4–4 vote in Dollar General Corp. v. Miss. Band of Choctaw Indians, one has to wonder if the Court is at all willing to reconsider its approach. While I have in the past joined the ranks of those advocating for the Court to adopt a different approach, in this Article I suggest that the time is ripe to consider legislative solutions to remedy the current state of uncertainty when it comes to the extent of tribal civil jurisdiction over nonmembers. After all, the U.S. Congress is the entity named in the Constitution to regulate commerce with Indian tribes. As early as 1846, the Court confirmed that although Indian Nations had retained much of their inherent sovereignty over both their people and territories, Congress possessed plenary authority to govern those domestic nations. While I am aware that the tribes would face an uphill battle in attempting to enact such legislation, it is not an impossible task. Scholars have already noted that tribes are surprisingly adept at pushing legislation through Congress successfully. As I and others have suggested, however, it might be easier for such legislation to be enacted on a tribe by tribe basis.
This Article, therefore, discusses the various options available to fashion a legislative correction to the Supreme Court jurisprudence in the area of tribal civil jurisdiction over nonmembers. Part I summarizes the Court’s jurisprudence in the area of tribal civil jurisdiction over nonmembers and outlines the major problems the Court has noted in recognizing such tribal jurisdiction. Part II outlines three potential legislative proposals that would confirm tribal civil jurisdiction over nonmembers while also attempting to meet the concerns outlined by the Court. Because the three proposals all involve granting all or at least some of the protections of the Bill of Rights to nonmembers subject to tribal jurisdiction, this Part also discusses the concerns with incorporating Indian tribes within our constitutional system. Taking such concerns seriously, Part III lays out a new legislative proposal which would minimize federal court interference with the legal and cultural distinctiveness of the tribal judiciaries.
Simply put, the proposal is to reconfirm the civil jurisdiction of any tribal court over nonmember defendants in all causes of action arising on the reservation as long as the tribal court has met the requirements for establishing personal jurisdiction over the parties. In addition, tribal court determinations concerning the existence of personal jurisdiction would be appealable to federal courts. Furthermore, in order to facilitate passage of this legislative proposal, an amendment could be introduced that would allow nonmembers to remove cases filed in tribal courts to federal courts under certain conditions.
Because scholars and commentators have already spent considerable amount to ink analyzing the Court’s jurisprudence in this area, I will only review the highlights in this rather short analysis. My purpose here is to show that, as in other areas of federal Indian law, while the implicit divestiture doctrine may have started as a sensible limiting principle on tribal sovereignty, it ultimately was used as a political tool to privilege the rights and interests of non-Indians and nontribal members, at the expense of tribal sovereign interests, in being able to govern their territories.
The implicit divestiture doctrine has its roots with the 1978 Oliphant decision where the Court ruled that Indian tribes had been implicitly divested of the inherent sovereign power to prosecute non-Indians. According to the Court, such inherent power had been divested because its exercise by the tribes was inconsistent with the tribes’ status as domestic dependent nations existing within the borders of the United States. The Court further held that Indian tribes could not exercise any inherent power in conflict with the overriding sovereign interests of the United States. In Oliphant such conflict existed because allowing non-Indians to be prosecuted by the tribes could result in “unwarranted intrusions” on the personal liberty of United States citizens.
Although Oliphant only dealt with the tribal power to criminally prosecute non-Indians, the case was extended a few years later to tribal regulatory power over nonmembers. The issue in Montana v. United States was whether the Crow Indian Tribe could regulate nonmembers fishing on state owned lands within the exterior boundaries of the Crow Indian reservation. After noting that the restriction on tribal criminal jurisdiction recognized in Oliphant also supported the proposition that the “exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of tribes,” the Montana Court concluded that “the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” The Court quickly added, however, that in certain circumstances
Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.
These two exceptions to Montana’s general rule would come to be known as the consensual relations exception and the self-government exception. Although not explicitly spelled out by the Court, it can be inferred that the two exceptions reflect what the Montana Court believed were powers “necessary to protect tribal self-government or to control internal relations . . . .” In the wake of Montana, some tribal advocates envisioned a broad scope for the two exceptions. Initially, the Court seemed to agree. Thus, in National Farmers Union v. Crow Tribe, the Court insisted that before filing their challenge to tribal jurisdiction in federal court, nonmember plaintiffs had to exhaust their tribal court remedies because “the existence and extent of a tribal court’s jurisdiction will require a careful examination of tribal sovereignty, the extent to which that sovereignty has been altered, divested, or diminished . . . .”
But the honeymoon between the tribes and the implicit divestiture doctrine did not last long. Except for an early victory in Merrion v. Jicarilla Apache Tribe involving taxation of a non-Indian energy corporation leasing lands from the tribe, and a mixed result in Brendale v. Confederated Tribes, the tribal interests lost the only other case, Atkinson Trading Co., Inc. v. Shirley, involving regulatory jurisdiction. When it came to the adjudicative jurisdiction of the tribal courts, the tribal interests lost all three cases, before deadlocking 4–4 without an opinion in Dollar General.
At first, some tribal advocates hoped that the Montana analysis would only be applicable to tribal regulatory authority and not to the adjudicatory jurisdiction of tribal courts. The Court itself gave some reasons for tribal optimism. For instance, in Iowa Mutual, it stated:
Tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty. Civil jurisdiction over such activities presumptively lies in the tribal courts . . . . Because the Tribe retains all inherent attributes of sovereignty that have not been divested by the Federal Government, the proper inference from silence . . . is that the sovereign power . . . remains intact.
The Court dispelled that notion in 1997 with Strate, when it held that Montana was applicable to limit both tribal regulatory and adjudicative jurisdiction and that “[a] tribe’s adjudicative jurisdiction does not exceed its legislative jurisdiction.” The issue in Strate was whether the tribal court had jurisdiction to hear a lawsuit filed by one nonmember against another nonmember over a run of the mill traffic accident that took place on a state highway running through the reservation. The Court held that opening the tribal court to such suits was “not necessary to tribal self-government and . . . is not crucial to the political integrity, the economic security, or the health and welfare of the [Three Affiliated Tribes].” The importance of Strate is not only that it substantially narrowed Montana’s second exception but also that it laid down the rule that a tribal court has jurisdiction over nonmembers only in cases where the tribal legislative body could also have regulated the activities of such nonmembers.
In both Strate and a 2001 case, Atkinson Trading Co., Inc. v. Shirley, involving tribal taxing authority over nonmembers, the Court went out of its way to specify that the lands where the nonmember activities took place was owned in fee by nonmembers. However, later in 2001, the Court in Nevada v. Hicks unanimously held that the Montana principle extended to both non-Indian and Indian owned land. In Hicks, the Court considered whether a tribal member could sue two state game wardens in tribal court. Hicks had alleged that the wardens had damaged his property and violated his civil rights when they searched his home which was located on Indian owned land within the Fallon Paiute-Shoshone Tribes reservation in western Nevada. The wardens had conducted the search as part of an investigation into alleged violations by Hicks of state hunting regulations committed outside the reservation.
Justice Scalia wrote the opinion for the Court. Although he concluded that “tribal authority to regulate state officers, in executing process related to the violation, off reservation, of state laws is not essential to tribal self-government or internal relations,” his analysis deviated substantially from previous implicit divestiture cases. Thus, after stating that “[s]tate sovereignty does not end at a reservation’s border,” he asserted that evaluating the tribal right of self-government requires “an accommodation between the interests of the Tribes and the Federal Government, on the one hand, and those of the State, on the other.” In other words, he seemed to call for a balancing of the interests test. However, he never took the tribal interests into account in his analysis. Although all justices agreed to extend Montana to activities conducted on Indian-owned land, the Court was split on what weight the status of the land should carry in performing any balancing test to determine whether the two Montana exceptions applied.
Justice Scalia took the position that the status of the land can be, at times, an important factor. It should be noted, however, that only Justices Rehnquist and Ginsburg agreed with him on that specific point. Justices Souter, Kennedy and Thomas took the position that the status of the land was never a “primary jurisdictional fact.” Finally, Justices O’Connor, Breyer, and Ginsburg thought that the status of the land was always an important consideration.
Hicks created much confusion and disagreements concerning how expansive or narrow the holding was. Some courts have interpreted Hicks narrowly; others do not. More recently, the Ninth Circuit held that Hicks was not applicable when there were no state law enforcement interests at stake. The Ninth Circuit also has taken the position that Hicks, or Montana for that matter, are not applicable to cases occurring on Indian owned land where the tribe has retained a treaty right to exclude.
The last case involving the implicit divestiture doctrine, Plains Commerce Bank, shows that the doctrine is so malleable that it can be easily manipulated to reach almost any result. At issue was whether the tribal court had jurisdiction to hear a lawsuit brought by tribal members against a non-Indian bank alleging that the bank had discriminated against them by offering to sell land within the reservation to nonmembers on more favorable terms that it was willing to offer them. The case clearly involved contractual or consensual relations as the land had been previously owned by the tribal plaintiffs who had deeded their land to the bank but were attempting to repurchase it. The Court in a 5–4 opinion per Justice Roberts held that the tribal court did not have jurisdiction because “the Tribe lacks civil authority to regulate the Bank’s sale of its fee land.” Thus, Justice Roberts took the position that Montana only allowed tribes to regulate the conduct of nonmembers in certain circumstances, but that the sale of land was not conduct for the purpose of allowing tribal jurisdiction under Montana.
According to the tribal plaintiffs, however, the conduct at issue was not so much the sale of non-Indian land as it was the discrimination involved in the sale of land. Pushed to its logical conclusion, this decision would foreclose Indian tribes from ever sanctioning nonmembers for discriminating against tribal members when selling anything on the reservation.
B. United States v. Lara and the Constitutionality of Legislation Reaffirming Tribal Inherent Civil Jurisdiction Over Nonmembers
Before proceeding to describe potential legislative solutions to the Court’s implicit divestiture doctrine, a word on the constitutionality of such legislation is in order. In United States v. Lara, the Court held that Congress could reaffirm the inherent power of Indian tribes to prosecute nonmember Indians despite its holding in Duro v. Reina that this power had been implicitly divested. At issue in Lara was the constitutionality of the so-called Duro Fix legislation. That legislation had amended the Indian Civil Rights Act of 1968 to provide that the tribes’ power of self-government included “the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.” The question in Lara was whether the United States could prosecute Billy Jo Lara, an enrolled member of the Turtle Mountain Band of Chippewa, after the Spirit Lake Indian tribe had already prosecuted him for the same crime. Lara argued that because Congress could not have reaffirmed the inherent power of the tribe to prosecute him, the first (tribal) prosecution must have been done pursuant to a delegation of federal authority to the tribe. The second (federal) prosecution for the same crime, therefore, was barred by the Double Jeopardy Clause of the United States Constitution.
The Court held that Congress could indeed reaffirm the inherent power of Indian tribes to prosecute nonmember Indians such as Lara, even after Duro v. Reina. In order to arrive at this conclusion, the Court found that decisions such as Oliphant and Duro were not constitutional decisions. Instead they were decisions based on federal common law. The Duro Fix legislation just “relaxes the restrictions . . . that the political branches had imposed on the tribes’ exercise of inherent prosecutorial power.” The Court further found that Oliphant and Duro:
reflect the Court’s view of the tribes’ retained sovereign status as of the time the Court made them. They did not set forth constitutional limits that prohibit Congress from changing the relevant legal circumstances, i.e., from taking actions that modify or adjust the tribes’ status. To the contrary, Oliphant and Duro make clear that the Constitution does not dictate the metes and bounds of tribal autonomy, nor do they suggest that the Court should second-guess the political branches’ own determinations.
As I have argued elsewhere, however, it has to be acknowledged that Justice Breyer’s opinion in Lara seems to be at odd not only with the actual rationale of Duro, but also with the Montana line of cases. Thus, the Lara Court failed to mention that Montana had given a somewhat different explanation than Oliphant for divesting tribes of jurisdiction. Furthermore, unlike Oliphant and arguably Duro, the Montana Court never relied on or cited any congressional statutes reflecting a congressional support, explicitly or implicitly, for the proposition that tribal civil jurisdiction over nonmembers had been implicitly divested. Could this mean that the Lara analysis would be inapplicable to legislation reaffirming the existence of tribal inherent civil jurisdiction over nonmembers? Not really. First, Justice Stewart in Montana relied completely on Oliphant when he wrote “[t]hough Oliphant only determined inherent tribal authority in criminal matters, the principles on which it relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” Secondly, while as explained below, there is language in Justice Kennedy’s Duro opinion suggesting constitutional problems with subjecting nonmembers to tribal criminal jurisdiction, there is nothing in Montana even inferring that legislation restoring tribal civil jurisdiction over nonmembers would raise constitutional issues.
Finally, although Billy Jo Lara argued that his prosecution was conducted in violation of the Due Process Clause of the U.S. Constitution, the Lara Court held that because of the procedural posture of the case “[w]e need not, and we shall not, consider the merits of Lara’s due process claim.” While the Court has never definitely addressed the validity of such due process claims and scholars have disagreed as to their merits, the more credible attacks on such legislation is the potential lack of available due process during criminal prosecutions. Such due process arguments, however, would have much less force when considering legislation confirming tribal civil adjudicative jurisdiction over nonmembers. In such civil cases, controversial tribal provisions such as the lack of any obligations to provide counsels to indigent defendants in tribal criminal cases would not be implicated.
Even though he is no longer on the Court, Justice Kennedy’s concerns as reflected by his Duro opinion and his Lara concurrence about Congress nonconsenting nontribal members to tribal jurisdiction should not be forgotten. In Duro, after holding that Indian tribes had no criminal jurisdiction over nonmember Indians, Justice Kennedy concluded by stating “[t]he retained sovereignty of the tribe is but a recognition of certain additional authority the tribes maintain over Indians who consent to be tribal members.” Justice Kennedy picked up on his “consent of the governed” theory in his Lara concurrence, where he stated:
The Constitution is based on a theory of original, and continuing, consent of the governed. Their consent depends on the understanding that the Constitution has established the federal structure, which grants the citizen the protection of two governments, the Nation and the State. . . . Here, contrary to this design, the National Government seeks to subject a citizen to the criminal jurisdiction of a third entity to be tried for conduct occurring wholly within the territorial borders of the Nation and one of the States. This is unprecedented. There is a historical exception for Indian tribes, but only to the limited extent that a member of a tribe consents to be subjected to the jurisdiction of his own tribe.
It is unclear whether Justice Kennedy was attempting to make a constitutional argument. Perhaps it can best be described as a quasiconstitutional one. The noted scholar Philip Frickey once described Kennedy’s argument in Lara as “mystical, in two senses of the word. His argument from deep constitutional structure and ongoing consent of the governed is not only obscure, but also seems to depend upon a direct communication with a sacred constitutional omnipresence to which at least some of the rest of us are not privy.” Whatever one might think of the argument, it is clear that Kennedy was attempting to provide strong legal policy arguments against extending tribal jurisdiction over nonconsenting individuals who are not tribal members. As further explored in the next Part, Kennedy is not the only Justice who has raised policy types arguments against tribal jurisdiction over nonmembers.
In spite of the Court claiming to decide the existence of tribal civil jurisdiction on whether such jurisdiction is “necessary” to tribal self-government or whether there are consensual relations of the qualifying kind, some of the justices who routinely ruled against tribal jurisdiction have at times highlighted what was really troubling them with tribal civil jurisdiction over nonmembers. Set forth below is a summary of what I believe are the Court’s main problems with tribal civil jurisdiction over nonmembers.
First is the fact that the United States Constitution does not apply to Indian tribes. The Court ruled in Talton v. Mayes that unlike the federal and state governments, tribal governments were not bound by the Constitution. Of all the justices, Justice Kennedy has been the most troubled by this fact. His decision in Duro, denying Indian tribes criminal jurisdiction over nonmember Indians, is normatively based on the fact that as citizens of the United States, nonmember Indians have not consented to be governed by tribal entities outside the structure of the Constitution. Justice Kennedy restated these concerns in his concurring opinion in United States v. Lara:
Lara, after all, is a citizen of the United States. To hold that Congress can subject him, within our domestic borders, to a sovereignty outside the basic structure of the Constitution is a serious step.
Second, many nontribal judges see tribal law as foreign and different than regular American law. They claim that tribal law is frequently unwritten, and based on orally transmitted customs and traditions. For instance, Justice Kennedy once expressed the view that tribal courts were “influenced by unique customs . . . [and] unspoken practices and norms.” Justice Souter described tribal law as the results of a “complex mix . . . which would be unusually difficult for an outsider to sort out.” At least one scholar has noted, however, that most of the law applied to cases involving nonmembers would be based on western European legal concepts and would not involve traditional tribal law.
Third is the lack of independence in some tribal judiciary. In other words, some tribal judiciaries do not conform to the separation of powers principle. Therefore, some tribal judges do not have lifetime tenure and can be fired by the tribes’ executive or legislative branches. Justice Kennedy once stated that tribal courts were often “subordinate to the political branches of the tribal governments.” In a later case, Justice Souter agreed with this assessment.
Fourth is the fact that there is no mechanism for federal or state court to review tribal decisions even if the grounds for the tribal court’s decision are based on federal or state law. As stated by Justice Souter, this would result in “a risk of substantial disuniformity in the interpretation of state and federal law . . . .”
Fifth is the so-called democratic deficit: The fact that nonmembers cannot participate in the political life of the tribes by voting in tribal elections. For instance, Justice Kennedy in Duro stated that the Court should “hesitate to adopt a view of tribal sovereignty that would single out another group of citizens, nonmember Indians, for trial by political bodies that do not include them.” Related to this concern is the accusation that tribal bodies that do not include nonmembers would be biased against such political outsiders. Professor Fletcher called this objection “racial exceptionalism.”
Sixth is not an objection as much as a pragmatic consideration based on political expediency. It is the fact that the Court is under the impression that in most of the cases where tribal jurisdiction has been denied, the tribal plaintiff could sue in state or federal court. For instance, in Nevada v. Hicks, Justice Scalia observed that the tribe or its members could always “invoke the authority of the Federal Government and federal courts (or the state government and state courts) to vindicate constitutional or other federal- and state-law rights.” Similarly in Strate v. A-1 Contractors, Justice Ginsburg concluded her opinion denying tribal court jurisdiction by stating “Gisela Fredericks may pursue her case against A-1 Contractors and Stockert in the state forum open to all who sustain injuries on North Dakota’s Highway. Opening the Tribal Court for her optional use is not necessary to protect tribal self-government.”
Although this perception has, legally speaking, some validity it is problematic for many reservation Indians. While I do not doubt that tribal governments and Indian owned businesses would have no problem filing lawsuits in federal and state courts, the same cannot be said of the many reservation Indians who live below the poverty level. For such individuals, the same criticisms that are leveled when courts authorize non-Indians to be sued in culturally foreign and different tribal courts can be applied to forcing poverty-stricken reservation Indians to file lawsuits in federal or state courts.
Although legislative proposals have previously been introduced in Congress, for one reason or another, such proposals never made it into law. In all the solutions described below, the proposed statutes would first confirm or reaffirm the jurisdiction of tribal courts over many, if not all, lawsuits arising in Indian Country. However, because the principal concern of the Court seems to be the lack of constitutional protections afforded litigants in tribal courts, the following three proposals would afford nonmember litigants either all or many of the protections guaranteed under the Bill of Rights. All three proposals also provide some sort of federal court review of alleged violations of rights guaranteed by the legislation.
After some thirty-five years, tribal advocates finally succeeded in enacting legislation partially overturning the 1978 Court’s decision in Oliphant v. Suquamish Indian Tribe that divested tribes of criminal jurisdiction over non-Indians. Thus, what is now known as Violence Against Women Act (VAWA) 2013 reaffirmed tribal jurisdiction over all people, Indians and non-Indians, accused of certain crimes of domestic violence, provided certain conditions were met and some constitutional rights guaranteed to these defendants.
Although the Duro Fix legislation, overturning a decision denying tribal criminal jurisdiction over nonmember Indians, simply reaffirmed the existence of such inherent tribal jurisdiction over such crimes, this partial Oliphant fix ended up being more complicated. In order to get Congress’s agreement to the legislation, tribal interests had to agree to the following:
- The pool of jurors in such criminal trials has to come from a cross section of the local population with no group, such as nontribal members, automatically excluded.
- Tribal governments have to provide an indigent defendant a defense attorney.
- Defendants have to be given any other rights necessary for the Bill to be constitutional.
- Defendants have to be provided all other rights available under the Indian Civil Right Act of 1968 as amended.
- Defendants have the right to appeal their convictions to federal courts pursuant to the writ of Habeas Corpus.
A bill extending constitutional provisions to nonmember civil litigants in tribal courts would be much less burdensome on tribal governments in that constitutional requirements governing civil litigation are less extensive than those applicable to criminal prosecutions. Nevertheless, making the Constitution applicable to Indian tribes is politically sensitive and problematic. The next model would not make constitutional rights per se applicable to Indian tribes.
B. The Indian Civil Rights Act Model: Providing Nonmembers Federal Court Review of Alleged ICRA Violations in Civil Cases
In 1968, Congress enacted the Indian Civil Rights Act (ICRA) affording almost all the protections of the Bill of Rights to people subjected to tribal governmental power. However, in Santa Clara Pueblo v. Martinez, the Court held that people complaining of civil rights violation could not appeal to federal courts unless they were petitioning the court for habeas corpus. In other words, federal courts did not have jurisdiction over any cases alleging ICRA violation unless the plaintiffs were also incarcerated or their liberty was at least meaningfully restricted.
One previously recommended solution would allow nonmembers alleging violation of ICRA the right to appeal the tribal court judgment to federal courts. This proposal is less drastic than the VAWA model because ICRA guarantees certain statutory rights that, although similar to some constitutional rights, have not been interpreted as equivalent to constitutional rights. In Santa Clara Pueblo, the Court first held that the pueblo could not be sued in federal court because ICRA lacked clear and unequivocal congressional intent to abrogate tribal sovereign immunity. Secondly, the Court held that while the official immunity of the tribal officials could implicitly be abrogated, ICRA did not contain such an implied cause of action to that effect. The proposed legislation being discussed here would just create such a cause of action against tribal judges or other tribal officials as long as the nonmember complainant alleged that the tribal court proceedings or its implementation resulted or would result in violations of ICRA. While this would amount to a modification of Santa Clara Pueblo v. Martinez, it would not totally overrule the case. The proposal would not allow individuals to sue tribes in federal courts for any claimed violation of ICRA. The proposal would only allow nonmember defendants to appeal tribal court judgments to federal courts if they are alleging violation of ICRA emanating from tribal court proceedings or orders.
C. Creating a Presumption of Tribal Jurisdiction Rebuttable When Tribal Courts Have Not Applied Fundamental Notions of Fairness or Due Process
In an insightful article, Matthew Fletcher argued that the Court should adopt a presumption of tribal jurisdiction over Indian owned lands within Indian reservations. However, nonmembers litigants should be able to file lawsuits in federal or state courts in order to rebut the presumption of tribal jurisdiction. The presumption could be rebutted if the nonmembers were denied a fundamental fair decisionmaking process. His proposal only applies over conduct of nonmembers on Indian owned land. As to conduct within Indian reservations occurring on land owned in fee by nonmembers, the Montana analysis would still be applicable.
At first, it seemed that Fletcher’s proposal was limited to federal court review for lack of adequate tribal “process,” understood to mean procedural due process. However, later parts of his article seem to also advocate for more general federal court review of whether tribal litigants were given enough “American Constitutional rights.” On the other hand, Fletcher did indicate that whether a tribe provided enough constitutional rights was a determination that could be made along the same lines as what courts use when “deciding whether to grant comity to foreign judgments.”
It must be remembered that Fletcher made his proposal while arguing for a shift in the Court’s jurisprudence. His argument was not made in connection with proposing legislation. However, when it comes to legislation, a problem with the fundamental fairness standard is that it would be very complicated to codify. Thus, the statute would have to specify exactly what constituted a denial of fundamental fairness. Although Fletcher makes a worthy effort to specify what he is envisioning when it comes to fundamental fairness, the task of actually codifying such concept in legislation could end up being much more complicated and politically difficult than envisioned. Yet without such specifications, the courts would be left to themselves to define such concepts, and we may end up with just about most of the Bill of Rights applicable to tribal courts. Such an interpretation of Fletcher’s proposal would make his proposal similar to the two previous ones.
I think one possible reason Fletcher did not confine himself to procedural due process is that his proposal reaches both tribal adjudicative and regulatory/legislative jurisdiction. However, procedural due process rights do not apply, or apply only minimally, to the enactment of legislation or regulations. Because this Article is only concerned with the civil jurisdiction of tribal courts, Fletcher’s proposal should be construed to allow federal court review to rebut the presumption of tribal court civil jurisdiction only in cases where tribal courts have not given nonmembers all the rights required under general notions of procedural due process. In other words, the proposal should not cover all potential denial of constitutional rights to nonmembers.
Even then, the legislation could be hard to draft with specificity as the panoply of procedural rights is quite large. Federal courts, however, have developed a comprehensive jurisprudence to determine when and how much process should be given in any given case. The legislation should therefore give federal courts deference in reviewing tribal proceedings to decide if they have conformed with the requirements of procedural due process. The next Subpart of this Article addresses a different issue with the three proposals analyzed above: The problem with constitutionally incorporating Indian tribes into the federalist system.
D. A Critique of These Three Proposals: Incorporating Indian Tribes Within our Constitutional Federalism
In an upcoming article, Michael Doran argues that the Court’s implicit divestiture doctrine was a solution devised to protect the constitutional or fundamental rights of nontribal members without completely destroying tribal sovereignty. To counter the negative impacts of the implicit divestiture doctrine on tribal sovereignty, Doran summarizes various possibilities that restore tribal jurisdiction and also protect fundamental rights. However, he finds such proposals either politically unacceptable or otherwise detrimental to Indian tribes. One of the possible solutions he mentions is allowing Indian tribes to assume full criminal and civil jurisdiction over their territories but “forc[ing] tribal governments into the federalist structure.” This would “require tribal governments to respect fundamental rights [of nontribal members] as those rights have been interpreted by the Supreme Court.” Describing such solution as a “Devil’s bargain,” Doran noted that this remedy may be more harmful to tribes than the implicit divestiture doctrine itself. Underscoring this finding is the notion that Indian tribes are better off remaining outside the U.S. constitutional system. In other words, incorporating the tribes within our constitutional system would destroy them as distinct sovereigns. This would end up being worse for the tribes even if under the current jurisprudence, tribes may eventually lose all civil jurisdiction over nontribal members.
I have in the past warned against such assimilative influences. More recently, however, although conceding that making some aspects of due process applicable to Indian tribes would be problematic, I argued that it may be worth it, especially if that choice was at tribal option. In her analysis about the implementation of VAWA 2013, Angela Riley also acknowledged the problems with making constitutional provisions applicable to Indian tribes. However, she concluded that some constitutional provisions could be applied to Indian tribes without jeopardizing their cultural and political distinctiveness. First, she noted that a lot of existing tribal court procedures are already similar to the ones applied in federal and state courts. Secondly, she argued that tribes could emphasize their distinctiveness by moving away from the carceral state approach prevalent in federal and state sentencing systems, and adopt sentencing provisions more closely affiliated with tribal traditions and culture.
In debating whether tribes have already been or should be incorporated into the United States, one should keep in mind that there is a difference between political incorporation and constitutional incorporation, especially if that term is understood to mean that all constitutional provisions would be applicable to tribal governments. I have elsewhere argued that tribes could be “incorporated” into the United States federalist system without being totally assimilated into the federal structure. In other words, tribes could be incorporated into the federal system under a third sphere of sovereignty that would allow them to keep their distinctiveness. Indian tribes have already been, at least partially, politically incorporated into the United States. True enough, there is not one defining congressional act incorporating tribes. However, tribes were geographically incorporated within the territory of the United States under the doctrine of discovery as interpreted in Johnson v. McIntosh. Furthermore, many other Supreme Court’s decisions as well as cumulative legislation enacted by Congress throughout history contributed to the incremental political incorporation of tribes within the United States system: Legislation such as the Indian Citizenship Act of 1924, the Indian Reorganization Act of 1934, the Indian Civil Rights Act of 1968, and the Indian Self Determination and Education Assistance Act of 1975.
It is true, however, that the tribes have never been formally incorporated into the United States in a constitutional sense. As Frank Pommersheim has urged, the confusion surrounding the constitutional status and incorporation of Indian tribes within our federalist system should be resolved through a constitutional amendment. In the last Part of this Article, I attempt to counter the effect of the implicit divestiture doctrine without assimilating the tribes constitutionally into the federal structure. In other words, I will argue in favor of legislation which would recognize and confirm the civil jurisdiction of Indian tribal courts over nonmembers as long as the tribal courts can establish that they have personal jurisdiction over the parties.
III. Incorporation Without Assimilation: Minimizing Federal Courts’ Interference With Tribal Legal Norms
In this Part, building on an idea expressed by Katherine Florey, I propose to legislatively reconfirm tribal court jurisdiction over all causes of actions arising in Indian Country as long as the tribal court can establish personal jurisdiction over the parties.
In her article, Florey convincingly demonstrated that the Supreme Court’s statement first enunciated in Strate v. A-1 Contractors, that “[a] tribe’s adjudicative jurisdiction does not exceed its legislative jurisdiction,” has no theoretical validity. Other commentators have also noted that the Court never gave any reasons whatsoever for this statement. Florey’s argument is that tribal courts should be considered courts of general jurisdiction and be treated like state courts when it comes to determining the extent of their jurisdiction. Tribal courts have in the past already used principles of personal jurisdiction derived from Court precedents to determine their own jurisdiction. Therefore, personal jurisdiction principles applicable to state courts should be the only restrictions on tribal court jurisdiction.
Florey further explained that the Court’s concerns with the lack of due process in tribal court proceedings could be taken care of by having the doctrines of personal jurisdiction applied to tribal courts in the same fashion as they are applied in state and federal courts. According to Florey, the Court in International Shoe devised a test allowing a court’s jurisdiction as long as the defendant maintained minimum contacts with the jurisdictional forum and such judicial jurisdiction did not offend traditional notions of fair play and substantial Justice. Furthermore, Florey noted that in Asahi Metal Industry v. Superior Court, the Court took the position that “even if minimum contacts were present, a lack of reasonableness could defeat personal jurisdiction.” As Florey explained, “reasonable concerns about fairness, bias and unfair surprise exist when nonmembers . . . are haled into tribal courts as defendants.” However, these “are the traditional concerns of personal jurisdiction.”
It is important to note that principles of constitutional due process applied to delineate the extent of personal jurisdiction by the Court are currently not applicable to tribes as such since tribes, unlike the states and the federal government, are not bound by the Constitution. However, due process requirements are already applicable to tribes through the Indian Civil Rights Act (ICRA). But the same commentator has also argued, that federal courts have not and should not find an implied cause of action in ICRA for challenging tribal courts’ determinations of personal jurisdiction to federal courts.
Under my proposal, which would impose constitutionally based requirements of personal jurisdiction on tribal courts, findings of personal jurisdiction by tribal courts would be appealable to federal courts after exhaustion of tribal court remedies. Such exhaustion requirements are currently mandated under National Farmers Union v. Crow Tribe, although the Court has noted four exceptions to the doctrine. These exceptions, of course, were to a general rule mandating exhaustion of tribal court remedies before plaintiffs could challenge the subject matter jurisdiction of tribal courts in federal courts. These exceptions would no longer be applicable under my proposed legislation since it would reconfirm tribal court jurisdiction as long as the constitutional due process requirements for personal jurisdiction are met.
At this point, some may argue that there are not many differences between my proposal and Fletcher’s. However, there are three major differences between our suggested solutions. Set forth below is an enumeration of the difference:
First, probably to make his proposal more palatable to anti-tribal interests, Professor Fletcher restricted his proposal to Indian owned fee land within the reservation and stated that tribal jurisdiction over nonmember owned land should continue to be determined under the Montana doctrine. Under my proposal, the legislative restoration of tribal jurisdiction over nonmembers would include all lands within tribal territories. Secondly, my legislative restoration is confined to the adjudicative jurisdiction of tribal courts. Unlike Fletcher, I do not address the legislative or regulatory jurisdiction of tribal governments. Tribal regulatory jurisdiction over nonmembers would continue to be determined under federal common law. Third, in Fletcher’s proposal, federal court review of tribal court jurisdiction is confined to looking for lack of procedural due process. Under my proposal, federal courts would only determine whether tribal courts correctly determined that they had personal jurisdiction over the parties.
I understand that, politically speaking, transposing the Florey personal jurisdiction approach to a legislative proposal may be seen as too pro-tribal for those in Congress who are objecting to tribal jurisdiction. The next two Subparts of this Article will explore this issue.
Past legislative settlements in the field of federal Indian law have required many compromises with nontribal interests. So far, the pro-tribal interests managed only a partial overturning of Oliphant thirty-five years after the Court issued that decision. On top of that, the tribes still had to guarantee the required constitutional protections before being allowed to reacquire such jurisdiction. In other areas of federal Indian law, while Congress was able to initially enact a relatively balanced compromise on Indian gaming with the passage of the Indian Gaming Regulatory Act (IGRA) of 1988, tribal interests have not yet been successful in overcoming the negative impacts of the Court’s decision in Seminole Tribe v. Florida, where the Court held that Congress could not use its Indian Commerce power to abrogate the states’ Eleventh Amendment sovereign immunity so as to allow tribes to sue states that failed to negotiate in good faith the required tribal state gaming compacts.
Similarly, the tribes have yet to successfully push a legislative fix to the controversial Carcieri decision, which held that only tribes under federal jurisdiction as of 1934 could benefit from a section in the law allowing the secretary of the interior to transfer land into trust for the benefit of Indian tribes. The same goes for Alaska v. Village of Venetie, another questionable opinion where the Court declared that the 44 million acres set aside for Alaskan Indians in the Alaskan Native Claims Settlement Act (ANCSA) was not Indian Country. This meant that Alaskan federally recognized Indian tribes could no longer exercise regulatory jurisdiction over the lands they owned in fee pursuant to ANCSA.
The lack of success in the areas just mentioned does not mean that Indian tribes are never successful. There have been dozens of tribal land settlement acts enacted into law, and an even larger amount of Indian water rights settlements. In addition, there are dozens of tribal specific bills enacted in every Congress, one of which even overturned an anti-tribal Supreme Court decision. However, the tribes will need to put forward some compelling reasons as to why legislation restoring tribal courts’ civil jurisdiction over nonmembers is a must. Fletcher and Tweedy have each enumerated some valid reasons supporting at least some restoration of tribal civil jurisdiction.
Summarizing the more important arguments supporting legislation reconfirming tribal jurisdiction over nonmembers I would list the following:
1) The implicit divestiture doctrine as interpreted by the Court is demeaning to Indian tribes in that it treats them as second rate or lesser governments compared to any other governmental bodies. This has resulted in a loss of respect towards tribal governments.
2) Lack of tribal jurisdiction over non-members has jeopardized the ability of tribal governments to enforce the law on reservations. This has resulted in the inability of tribes to protect their members and other significant tribal interests.
3) Because federal and state courts do not have jurisdiction over all cases arising on the reservations, the lack of tribal jurisdiction has resulted in what Tweedy termed “lawlessness.”
4) Congress needs to reassert its constitutionally assigned role in regulating the relations between members and nonmembers.
Yet, I understand that allowing tribal jurisdiction over nonmembers as long as personal jurisdiction can be established could face an uphill battle even if tribal courts’ findings of personal jurisdiction can be appealed to federal courts. To counter this problem, in the next Subpart, I propose a political compromise that some tribes may wish to consider in order to convince groups generally opposed to tribal jurisdiction not to lobby against the proposal.
C. Facilitating Passage of the Legislation by Allowing for Removal of Tribal Court Cases to Federal Courts
One possible idea to improve the chances of passing my proposed legislative solution would be to allow nonmember defendants being sued in tribal courts to remove their cases to federal courts under certain circumstances. This proposal would follow the model set forth in 28 U.S.C. § 1441 for removal of civil actions from state to federal courts. In other words, removal could be granted only in cases the federal court would otherwise have jurisdiction in that the case would involve a federal question or meet the diversity requirements.
I am aware that this removal option will not be popular with some tribal advocates. Yet, I believe this proposal may be less drastic or detrimental to tribal sovereign interests than anticipated. First, the burden to persuade federal courts to accept removal would be on the nontribal parties seeking removal. These removal requirements can be hard to navigate. Secondly, even if a case is removed, the law of the initial forum, tribal law, should still be applicable to the proceedings. Finally, in order to limit federal interference with the distinct nature of tribal judiciaries, I would not grant an unlimited right to remove tribal cases to federal courts. Instead, federal courts should not accept removal jurisdiction in cases where important tribal governmental interests are involved unless the federal court finds that the litigation below was: (1) motivated by a desire to harass, (2) conducted in bad faith, (3) tribal jurisdiction was plainly lacking, or (4) the nonmember defendant lacked a fair opportunity to present his case because the tribal forum was biased or the nonmember party was barred on procedural grounds from raising his claims.
This modification to the removal requirements contained 28 USC § 1441 somewhat tracks the exceptions to the exhaustion of tribal remedies doctrine, but recasts them in a different context. It is also inspired by the Younger doctrine, as well as the other federal abstention doctrines. For instance, the three requirements for Younger to apply are: (1) parallel state proceedings, (2) implication of important state interests, and (3) lack of adequate forums for the party resisting abstention to raise her (federal) claims. On the other hand, the four exceptions to application of Younger abstention are: (1) bad faith and harassment, (2) a patently unconstitutional state statute, (3) an inadequate state forum in that it is biased or the party is barred on procedural grounds from raising its federal claims, or (4) the State or both parties waive Younger abstention.
An option worth considering from a tribal perspective would be to limit removal to federal question cases and not include diversity. Similarly, those opposed to tribal jurisdiction would probably push to go beyond diversity of state citizenship and allow all nonmembers to remove cases to federal courts. The normative argument against both these positions, one pro-tribal the other one not, is that in order to be correctly integrated into the federal system, tribal courts should be treated on par with state courts when it comes to their relations with the federal courts. Thus, for uniformity sake, the whole federal removal statute should, to the extent possible, treat tribal and state courts in the same fashion.
For forty years, the Supreme Court has been engaged in a measured attack on tribal sovereignty when it comes to tribal jurisdiction over nonmembers. Although the Court has devised a test seeming to determine the amount of tribal jurisdiction based on whether the exercise of that governmental power is necessary to tribal self-government, in reality, the Court wants to protect or shield nonmembers from tribal tribunals out of an inordinate fear that these tribunals will not be fair to nonmembers. Also of concern to the Court is the fact that tribal court orders in the area of civil jurisdiction are not appealable to federal courts except when one is challenging the subject matter jurisdiction of the tribal court. To remedy this situation, this Article has proposed a legislative solution which would allow tribal court determinations of personal jurisdiction to be appealed to federal forums. Furthermore, in order to facilitate enactment of such legislation, this Article has suggested that tribes lobbying for a restoration of tribal court civil jurisdiction over nonmembers should consider allowing nonmembers being sued in tribal forums to remove their cases to federal courts if certain conditions are met.
I believe this solution goes a long way in reestablishing the legitimacy, dignity, and functionality of tribal courts, thus reconfirming Indian nations as what Justice O’Connor once termed “the Third Sovereign” within the United States’ legal system. At the same time, it achieves this goal without assimilating Indian nations within our constitutional system in that it does not make the tribal courts subject to all constitutional restrictions.
. See Treaty with the Delawares, Delaware Nation-U.S., Sept. 17, 1778, 7 Stat. 13. In doing so, the United States followed a tradition started by the Europeans nations.
. Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831).
. See Cohen’s Handbook of Federal Indian Law § 4.02(1) (Nell Jessup Newton et al. eds., 2012).
. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 210–11 (1978) (holding Indian tribes implicitly divested of criminal jurisdiction over non-Indians).
. Id. at 208.
. Parts of the Supreme Court decisions in the criminal area were overturned legislatively. See infra text accompanying notes 64–72.
. See infra Part I.A.
. See, e.g., Matthew L. M. Fletcher, The Supreme Court and Federal Indian Policy, 85 Neb. L. Rev. 121 (2006); Philip P. Frickey, A Common Law for Our Age of Colonialism: The Judicial Divestiture of Indian Tribal Authority over Nonmembers, 109 Yale L.J. 1 (1999); David H. Getches, Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 Calif. L. Rev. 1573 (1996); Michalyn Steele, Plenary Power, Political Questions, and Sovereignty in Indian Affairs, 63 UCLA L. Rev. 666 (2016).
. See Alex Tallchief Skibine, Formalism and Judicial Supremacy in Federal Indian Law, 32 Am. Indian L. Rev. 391, 409–14 (2007) (discussing lower court cases that have given different interpretation to the Court’s decisions in this area).
. See, e.g., Matthew L. M. Fletcher, A Unifying Theory of Tribal Civil Jurisdiction, 46 Ariz. St. L.J. 779 (2014) (arguing that there should be a presumption of tribal jurisdiction over nonmembers for activities occurring on tribal land but providing that this presumption could be rebutted if the tribes did not afford due process to these non-members.); Katherine Florey, Beyond Uniqueness, Reimagining Tribal Courts’ Jurisdiction, 101 Calif. L. Rev. 1499 (2013) (arguing that the Court should determine the jurisdiction of tribal courts using principles of personal jurisdiction as developed by the federal courts).
. 136 S. Ct. 2159 (2016). The tie meant that the decision below in favor of tribal court jurisdiction stood.
. See Alex Tallchief Skibine, Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes, 39 Am. Indian L. Rev. 77 (2014) (recommending the use of a dormant commerce clause type of analysis to delimit the extent of tribal jurisdiction).
. Others have also argued for legislative solutions. See, e.g., Ann E. Tweedy, Connecting the Dots Between the Constitution, the Marshall Trilogy, and United States v. Lara: Notes Toward a Blueprint for the Next Legislative Restoration of Tribal Sovereignty, 42 U. Mich. J.L. Reform 651 (2009); see also R. Stephen McNeill, Note, In a Class by Themselves: A Proposal to Incorporate Tribal Courts into the Federal Court System Without Compromising Their Unique Status as “Domestic Dependent Nations,” 65 Wash. & Lee L. Rev. 283 (2008) (advocating for a restoration of tribal court civil jurisdiction but recommending the creation of a new Federal Circuit Court of Appeals to review tribal court decisions for violations of constitutional rights).
. U.S. Const. art. I, § 8, cl. 3.
. United States v. Rogers, 45 U.S. 567, 571–74 (1846); see also Maggie Blackhawk, Federal Indian Law as Paradigm within Public Law, 132 Harv. L. Rev. 1789, 1829–30 (2019). On congressional authority over Indian tribes, see Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012 (2015).
. See, e.g., Kirsten Matoy Carlson, Congress and Indians, 86 U. Colo. L. Rev. 77 (2015); Kirsten Matoy Carlson, Lobbying Against the Odds, 56 Harv. J. on Legis. 23 (2019).
. See Tweedy, supra note 13, at 702–09 (suggesting a piecemeal or subject-specific approach to the affirming tribal civil jurisdiction legislatively).
. See supra note 8; see also Tweedy, supra note 13. For a comprehensive treatment of tribal civil jurisdiction over nonmembers, see Sarah Krakoff, Tribal Civil Jurisdiction Over Nonmembers: A Practical Guide for Judges, 81 U. Colo. L. Rev. 1187 (2010).
. See generally Alex Tallchief Skibine, From Foundational Law to Limiting Principles in Federal Indian Law, 80 Mont. L. Rev. 67 (2019).
. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208 (1978).
. Id. at 209.
. Id. at 210. This was a consequence of Talton v. Mayes, 163 U.S. 376, 382–83 (1896), where the Court held that Indian tribes did not derive their governmental powers from the U.S. Constitution and therefore were not bound by it.
. 450 U.S. 544, 547 (1981).
. Id. at 564.
. Id. at 565.
. Id. at 566.
. Id. at 564.
. Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985).
. Id. at 855–56.
. 455 U.S. 130 (1982). At the time, Montana was considered to only apply to nonmember fee land within the reservation. It was only in Nevada v. Hicks, 533 U.S. 353, 359–60 (2001) that Montana was extended to cover conduct on Indian owned land. Whether the same result would obtain after Nevada v. Hicks, is debatable. See infra text accompanying notes 51–61.
. Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408 (1989). The case is a good example of how the implicit divestiture doctrine can be politically manipulated. In Brendale, four justices held that the Tribes can never zone the fee lands of nonmembers, id., at 428–31, three Justices held that tribes could always do so, id., at 455–65. The other two Justices, Stevens and O’Connor, decided to split the baby in two and allowed the tribe to zone nonmember fee land in one part of the reservation (closed part) but not the other (open part), id., at 438–48.
. 532 U.S. 645 (2001).
. Although some may categorize South Dakota v. Bourland, 508 U.S. 679 (1993) as involving the implicit divestiture doctrine, this is not the case as the Court ended up remanding on that issue. Id. at 695–98. It was obvious, however, that the author of the opinion, Justice Thomas, had no doubt the tribe would lose since he stated “after Montana, tribal sovereignty over nonmembers cannot survive without express congressional delegation . . . and is therefore not inherent.” Id. at 695 n.15 (internal citation marks and quotations omitted).
. Strate v. A-1 Contractors, 520 U.S. 438 (1997); Nevada v. Hicks, 533 U.S. 353 (2001); Plains Commerce Bank v. Long Family Land & Cattle Co., Inc., 554 U.S. 316 (2008).
. Dollar Gen. Corp. v. Miss. Band of Choctaw Indians, 136 S. Ct. 2159 (2016).
. Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987) (internal citations and quotation marks omitted).
. Strate, 520 U.S. at 453.
. Id. at 459 (internal citations and quotation marks omitted).
. Id. at 453.
. 532 U.S. 645, 653 (2001) (distinguishing precedents upholding tribal power to tax on Indian owned land and holding that the tribe could not impose a room occupancy tax on a hotel located inside the Navajo reservation but on non-Indian fee land).
. Nevada v. Hicks, 533 U.S. 353, 359–60 (2001).
. Id. at 364.
. Id. at 361.
. Id. at 362.
. See infra text accompanying notes 47–50.
. Hicks, 533 U.S. at 370–74.
. They were the only other Justices who did not join either Souter’s concurring opinion adopting a different position on that issue, or Justice O’Connor’s opinion. See id. at 375–76 (Souter, J., concurring), 395–96 (O’Connor, J., concurring in part).
. Id. at 375–76 (Souter, J., concurring).
. Id. at 395–96 (O’Connor, J., concurring in part).
. For a recent summary of the law in a case where certiorari is currently pending at the Supreme Court, see Knighton v. Cedarville Rancheria of N. Paiute Indians, 922 F.3d 892, 899–902 (9th Cir. 2019).
. See McDonald v. Means, 309 F.3d 530, 540 (9th Cir. 2002).
. MacArthur v. San Juan County, 497 F.3d 1057 (10th Cir. 2007).
. Window Rock Unified School District v. Reeves, 861 F.3d 894, 906 (9th Cir. 2017).
. See Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802, 810–14 (9th Cir. 2011); see also id. at 816 (stating that “Montana does not apply to this case”). For an insightful and comprehensive analysis of this issue, see Judith V. Royster, Revisiting Montana: Indian Treaty Rights and Tribal Authority over Nonmembers on Trust Lands, 57 Ariz. L. Rev. 889 (2015).
. Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008).
. Id. at 321–22.
. Id. at 330.
. Id. at 332.
. Id. at 334 (stating that “[t]he distinction between sale of the land and conduct on it is well established . . . and entirely logical given the . . . liberty interests of nonmembers”).
. At least if such sales occurred on non-Indian fee land, although some would argue that Hicks may have blurred any distinction between Indian and non-Indian owned land within a reservation since it extended the Montana presumption against tribal jurisdiction over nonmembers to Indian owned land. See MacArthur v. San Juan Cnty., 497 F.3d 1057, 1069–70 (10th Cir. 2007), Rolling Frito-Lay Sales v. Stover, No. CV 11-1361-PHX-FJM, 2012 WL 252938 at *2 (D. Ariz. 26, 2012).
. 541 U.S. 193, 196 (2004).
. See Duro v. Reina, 495 U.S. 676, 684 (1990) (extending the rational of Oliphant, which had dealt with tribal jurisdiction over non-Indians, to tribal jurisdiction over nonmember Indians, meaning members of other tribes than the prosecuting tribe).
. For a more comprehensive treatment, see Alex Tallchief Skibine, Duro v. Reina and the Legislation that Overturned It: A Power Play of Constitutional Dimensions, 66 S. Cal. L. Rev. 767 (1993).
. 25 U.S.C. § 1301(2) (2012).
. Lara, 541 U.S. at 196.
. Id. at 226–27 (Justice Souter, dissenting).
. The Fifth Amendment to the Constitution reads in relevant part “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V.
. 495 U.S. 676 (1990)
. Lara, 541 U.S. at 205 (“To the contrary, Oliphant and Duro make clear that the Constitution does not dictate the metes and bounds of tribal autonomy, nor do they suggest that the Court should second-guess the political branches' own determinations.”).
. Lara, 541 U.S. at 200.
. Id. at 205.
. See Alex Tallchief Skibine, United States v. Lara, Indian Tribes, and the Dialectic of Incorporation, 40 Tulsa L. Rev. 47, 53–56 (2004) (noting that the Court in Oliphant stated that tribal criminal jurisdiction over nonmembers would be divested “even ignoring treaty provisions and congressional policies.” 435 U.S. 191, 208).
. See id. at 56–57 (noting that the Montana Court did not specify any congressional statutes restricting tribal civil jurisdiction over nonmembers).
. See supra text accompanying notes 24–27.
. Skibine, supra note 73, at 57.
. Montana v. United States, 450 U.S. 544, 565 (1981).
. United States v. Lara, 541 U.S. 193, 209 (2004).
. Compare L. Scott Gould, Tough Love for Tribes: Rethinking Sovereignty after Atkinson and Hicks, 37 New Eng. L. Rev. 669, 687–92 (2003) (against the Duro Fix) with Samuel E. Ennis, Reaffirming Indian Tribal Court Criminal Jurisdiction over Non-Indians: An Argument for a Statutory Abrogation of Oliphant, 57 UCLA L. Rev. 553 (2009) (arguing in favor of the Duro Fix).
. For an analysis of the arguments involved, see Will Trachman, Comment, Tribal Criminal Jurisdiction after U.S. v. Lara: Answering Constitutional Challenges to the Duro Fix, 93 Calif. L. Rev. 847 (2005).
. Duro v. Reina, 495 U.S. 676, 693 (1990).
. United States v. Lara, 541 U.S. 193, 211–14 (2004) (Kennedy, J., concurring).
. Id. at 212.
. See Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 Harv. L. Rev. 431, 467 (2005).
. Talton v. Mayes, 163 U.S. 376, 382–83 (1896). This is not to say, however, that tribal courts do not believe in fundamental fairness and due process. See Matthew L.M. Fletcher, Indian Courts and Fundamental Fairness: Indian Courts and the Future Revisited, 84 U. Colo. L. Rev. 59, 81–91 (2013) (summarizing various tribes’ notions of due process and fundamental fairness).
. Duro v. Reina, 495 U.S. 676, 696–98 (1990); see also supra text accompanying notes 81–84.
. United States v. Lara, 541 U.S. 193, 212 (2004) (Kennedy, J., concurring).
. Fletcher has referred to this objection as Cultural Exceptionalism. See Fletcher, supra note 10, at 826.
. Duro v. Reina, 495 U.S. 676, 693 (1990).
. Nevada v. Hicks, 533 U.S. 353, 384–85 (2001) (Souter, J., concurring) (internal quotation marks omitted).
. Matthew L. M. Fletcher, Toward a Theory of Intertribal and Intratribal Common Law, 43 Hous. L. Rev. 701, 706 (2006) (“Practice in tribal courts suggests that tribal courts would, if asked, adopt a choice of law doctrine similar to the one followed by federal courts where they would apply nontribal law to decide questions involving nonmember rights.”).
. See Cohen’s Handbook of Federal Indian Law § 4.04(3)(c)(iv)(D) (Nell Jessup Newton et al. eds., 2012) (noting that although some tribal constitutions do not provide for independent judiciaries, the trend among tribes is to adopt separation of power principles.)
. Duro, 495 U.S. at 693.
. See Nevada, 533 U.S. at 385 (Souter, J., concurring).
. That expression as applied to Indian tribes was first coined and noted by Professor T. Alexander Aleinikoff in his book, Alexander Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and American Citizenship 115 (2002).
. Duro, 495 U.S. at 693.
. Many of these accusations and concerns were rebutted by Professor Bethany Berger in Bethany R. Berger, Justice and the Outsider: Jurisdiction over Nonmembers in Tribal Legal Systems, 37 Ariz. St. L.J. 1047 (2005) (surveying 534 Navajo appellate decisions issued from 1969 to 2004 and finding that nonmembers won 47.4 percent of the time while losing 52.6 percent of the time); see also FMC Corp. v. Shoshone Bannock Tribes, Nos. 17-3584017-35865, 2019 WL 6042469, at *22 (9th Cir. Nov. 15, 2019), where the Ninth Circuit stated “‘Although it is true that the Bill of Rights does not itself constrain tribal court proceedings, . . . this does not leave the rights of nonmembers unprotected in tribal courts.’ . . . ‘The Indian Civil Rights Act (ICRA) . . . expressly provides that no tribe may ‘deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.’’ . . . ‘Making good on these due process guarantees, nearly five decades of tribal cases applying ICRA show that tribal courts protect the rights of both member and nonmember litigants in much the same way as do federal and state courts.’ . . . ‘[T]ribal courts often provide litigants with due process that ‘exceed[s] the protections offered by state and federal courts.’’ . . . Our own experience in reviewing tribal court decisions is consistent with the findings of these studies. Tribal courts, like all courts (including our own), make mistakes. But, contrary to the contention of FMC, tribal courts do not treat nonmembers unfairly.”
. Fletcher, supra note 10, at 826–27.
. Nevada v. Hicks, 533 U.S. 353, 373 (2001).
. Strate v. A-1 Contractors, 520 U.S. 438, 459 (1997).
. For a summary of current economic conditions on Indian reservations, see Robert J. Miller, Sovereign Resilience: Reviving Private-Sector Economic Institutions in Indian Country, 2018 BYU L. Rev. 1331, 1335–38.
. See Alex Tallchief Skibine, The Supreme Court’s Last 30 Years of Federal Indian Law: Looking for Equilibrium or Supremacy, 8 Colum. J. Race & L. 277, 318–20 (describing past legislative proposals).
. Indian Country is a term of art derived from 18 U.S.C. § 1151 (2012) according to which the following are treated as Indian lands for the purpose of jurisdictional analysis: (1) all lands within Indian reservations, (2) all trust lands held by the U.S. for the benefit of Indians or tribes, (3) lands set aside by the federal government for Dependent Indian Communities.
. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208 (1978).
. 25 U.S.C. § 1304 (2017). The Tribal provisions were part of the Violence Against Woman Act Reauthorization of 2013.
. 25 U.S.C. § 1301(2) (2012).
. See supra text accompanying notes 64–72.
. For an insightful and comprehensive examination of VAWA 2013, see Angela R. Riley, Crime and Governance in Indian Country, 63 UCLA L. Rev. 1564 (2016).
. 25 U.S.C. § 1304(d)(3) (2012).
. 25 U.S.C. § 1304(f)(2) (2012). Federal grants covering such costs were made available to tribes in the legislation. See Riley, supra note 109, at 1592–93.
. 25 U.S.C. 1304(d)(4) (2012). Whether any more or all constitutional rights will have to be given has not been answered by the courts yet.
. 25 U.S.C. § 1304 (d)(2) (2012) (making applicable all rights of defendants under 25 U.S.C. 1302(c) which includes the rights to effective assistance of counsel if sentences can exceed one year in jail.).
. 25 U.S.C. § 1304 (e)(1) (2012).
. See infra Part III.B.
. Indian Civil Rights Act of 1968, 25 U.S.C. §§ 1301–1303 (2012).
. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 70, 72, (1978).
. See, e.g., Charles F. Wilkinson, American Indians, Time, and the Law 113–19 (1987); see also Amy Conners, The Scalpel and the Ax: Federal Review of Tribal Decisions in the Interest of Tribal Sovereignty, 44 Colum. Hum. Rts. L. Rev. 199, 246–52 (2012).
. See generally ICRA Reconsidered: New Interpretations of Familiar Rights, 129 Harv. L. Rev. 1709 (2016); see also Mark D. Rosen, Multiple Authoritative Interpreters of Quasi-Constitutional Federal Law: Of Tribal Courts and the Indian Civil Rights Act, 69 Fordham L. Rev. 479 (2000) (both articles noted that rights under ICRA although akin to constitutional rights, have not been interpreted in the same fashion as constitutional rights).
. Martinez, 436 U.S. at 58–59.
. See generally Fletcher, supra note 10, at 779.
. Id. at 786.
. Id. at 830.
. See id. at 831–38 (mentioning the need for fair, unbiased, and competent tribal judges as well as an independent tribal judiciary).
. See id. at 835–38.
. Id. at 838.
. See id. at 830–40.
. This is the classic dichotomy between Londoner v. City and County of Denver, 210 U.S. 373 (1908) (involving adjudicative proceedings), and Bi-Metallic Inv. Co. v. State Bd. of Equalization of Colorado, 239 U.S. 441 (1915) (involving rulemaking). The two cases stand for the proposition that procedural due process applies to adjudicative proceedings but not to rulemaking.
. For another proposal advocating expanded federal court review, see M. Gatsby Miller, The Shrinking Sovereign: Tribal Adjudicatory Jurisdiction over Nonmembers in Civil Cases, 114 Colum. L. Rev. 1825 (2014).
. See Goldberg v. Kelly, 397 U.S. 254, 267–71 (1970) (enumerating the panoply of available procedural rights).
. See Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976). The Court came up with a three factor formula to determine the extent of due process rights that had to be afforded in any particular case, stating, “More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id.
. See generally Michael Doran, Redefining Tribal Sovereignty for the Era of Fundamental Rights, Indian L.J. (forthcoming).
. Id. (manuscript at 71–77).
. Id. (manuscript at 74).
. Id. (manuscript at 77).
. See generally Alex Tallchief Skibine, Troublesome Aspects of Western Influence on Tribal Justice System and Laws, 1 Tribal L.J. (2007).
. Skibine, supra note 12, at 132–33.
. Id. at 134.
. Riley, supra note 109, at 1595–1603.
. See id. at 1611–14 (for instance, Riley noted that many tribes already provide counsel to indigent defendants); see also Barbara L. Creel, The Right to Counsel for Indians Accused of Crime: A Tribal and Congressional Imperative, 18 Mich. J. Race & L. 317, 320–21 (2013).
. See Riley, supra note 109, at 1622–30.
. Skibine, supra note 12, at 126–34.
. Id. See Alex Tallchief Skibine, Redefining the Status of Indian Tribes Within “Our Federalism”: Beyond the Dependency Paradigm, 8 Conn. L. Rev. 667, 689–93 (2006) (arguing for a self-determination paradigm of incorporation).
. Milner S. Ball, Constitution, Court, Indian Tribes, 12 Am. B. Found. Res. J. 1, 37 (1987).
. 21 U.S. 543, 572–74 (1823).
. See generally Skibine, supra note 12, at 669–77.
. 8 U.S.C. § 1401(b) (2012) (granting U.S. citizenship to all tribal members).
. 25 U.S.C. §§ 461–79 (2012) (providing among other things that Tribes could adopt Tribal Constitutions which would become effective upon approval by the Secretary of the Interior).
. 25 U.S.C. §§ 1301–03 (2012) (making provisions similar if not identical to those contained in the Constitution’s Bill of Rights statutorily applicable to tribal governments).
. 25 U.S.C. §§ 5301–5432 (2018) (authorizing Indian tribes to contract with the United States to assume the administration and implementation of federal programs created for the benefit of Indian tribes).
. Milner S. Ball, Constitution, Court, Indian Tribes, 1987 Am. B. Found. Res. J. 1, 37 (1987).
. Frank Pommersheim, Is There a (Little or not so Little) Constitutional Crisis Developing in Indian Law?: A Brief Essay, 5 U. Pa. J. Const. L. 271, 285 (2003).
. Florey, supra note 10 (suggesting that principles of personal jurisdiction as developed by federal courts should also determine the extent of tribal court jurisdiction).
. 520 U.S. 438 (1997).
. Id. at 453; see also Nevada v. Hicks, 533 U.S. 353, 367 (2001) (endorsing the statement).
. See Florey, supra note 10, at 1532–36.
. See, e.g., M. Gatsby Miller, The Shrinking Sovereign: Tribal Adjudicatory Jurisdiction Over Nonmembers in Civil Cases, 114 Colum. L. Rev. 1825, 1837–42 (2014) (noting the lack of justifications and attempting to provide some based on the Court’s much greater concern with the lack of due process in tribal court proceedings than in regulatory or legislative ones since due process is not applicable to such proceedings).
. Grant Christensen, Personal Jurisdiction and Tribal Courts After Walden and Bauman: The Inadvertent Impact of Supreme Court Jurisdictional Decisions on Indian Country, 68 Rutgers U. L. Rev. 1367, 1378 (2016) (stating that although tribal courts do not have to abide by the same constitutional standards as state and federal courts, “[i]n practice, however, tribal courts consult Supreme Court precedent such that the meaning of due process found in the Indian Civil Rights Act is given a virtually identical meaning to the clause in its Fourteenth Amendment sister.”).
. Florey, supra note 10, at 1506–07.
. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Florey, supra note 10, at 1510.
. Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102 (1987).
. Florey, supra note 10, at 1512.
. Id. at 1557.
. Talton v. Mayes, 163 U.S. 376, 382–83 (1896).
. See David A. Castleman, Comment, Personal Jurisdiction in Tribal Courts, 154 U. Pa. L. Rev. 1253, 1255 (2006) (“Both the text and the legislative history of the ICRA indicate that the ICRA’s due process clause should be interpreted similarly to the Fourteenth Amendment’s and in accordance with the modern conception of personal jurisdiction . . . .”).
. Id. at 1277–81. The commentator noted under current Supreme Court jurisprudence, it is even harder to find an implied statutory cause of action than it was in 1978 when the Court in Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) refused to find an implied cause of action against tribal officials for alleged violations of the Indian Civil Rights Act. See Castleman, supra note 167, at 1256.
. Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 856–57 (1985).
. In National Farmers, the Court stated “[w]e do not suggest that exhaustion would be required where an assertion of tribal jurisdiction ‘is motivated by a desire to harass or is conducted in bad faith,’ or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court’s jurisdiction.” Id. at 856 n.21 (internal citations omitted). In Strate, the Court added a fourth exception “[w]hen, as in this case, it is plain that no federal grant provides for tribal governance of nonmembers’ conduct on land covered by Montana ’s main rule, it will be equally evident that tribal courts lack adjudicatory authority over disputes arising from such conduct.” Strate v. A-1 Contractors, 520 U.S. 438, 459 n.14 (1997).
. See supra text accompanying notes 105–106.
. See supra text accompanying note 112.
. Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701–21 (2012). For a comprehensive description of the negotiations that led to IGRA by one of the key players in such negotiations, see Franklin Ducheneaux, The Indian Gaming Regulatory Act: Background and Legislative History, 42 Ariz. St. L.J. 99 (2010).
. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 76 (1996). On this topic, see Matthew L. M. Fletcher, Bringing Balance to Indian Gaming, 44 Harv. J. on Leg. 39 (2007).
. Carcieri v. Salazar, 555 U.S. 379 (2008).
. Id. at 382. For a comprehensive analysis of the decision and this area of the law, see William Wood, Indians, Tribes, and (Federal) Jurisdiction, 65 U. Kan. L. Rev. 415 (2016).
. Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520, 524, 532–34 (1998).
. See Carlson, supra note 16.
. By my estimates, there are about 32 Indian water rights settlements that have been enacted into law since 1978. For a summary and analysis of some of these water rights settlements, see Robert T. Anderson, Indian Water Rights, Practical Reasoning, and Negotiated Settlements, 98 Calif. L. Rev. 1133 (2010).
. See Gun Lake Trust Land Reaffirmation Act, Pub. L. No. 113–79, 128 Stat. 1913 (2014) (overturning Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012)).
. See Fletcher, supra note 10; Tweedy, supra note 13. Thus, Fletcher cited (1) congressional and executive public policy favoring tribal self-government, (2) the need to protect the dignity of the tribes as sovereign, (3) the need to improve tribal governance capacity, (4) the changing to tribal economic and political circumstances due to the advent of tribal gaming in an era of tribal self-determination, and (5) the lack of federal and state court jurisdiction over tribal lands. Fletcher, supra note 10, at 804–21. Tweedy added the following considerations: (1) erosion of tribal culture and institutions, (2) disempowerment of tribal courts over nonmembers, (3) lack of respect for tribal governments, (4) lack of funding for tribal justice systems, (5) waste of resources, (6) inability to protect tribal interests on the reservations, and (7) lawlessness. Tweedy, supra note 13, at 683–89.
. Id. at 689–91.
. This role is derived from Article I, Section 8. Cl. 3 of the U.S. Constitution, vesting in Congress the power to “regulate commerce with foreign nations, and among the states, and with the Indian tribes.” The Court in United States v. Lara reaffirmed the understanding that the Constitution vests with Congress the primary role of regulating the relations between the United States and the Indian Tribes. 541 U.S. 193. 200–02 (2004) (describing the sources of congressional plenary power over Indian affairs).
. For one thing, it will be increasingly hard for tribes to push legislation restoring some kind of tribal civil jurisdiction over nonmembers if lobbying groups opposed to tribal jurisdiction start believing that the Court will eventually prohibit all tribal civil jurisdiction over nonmembers.
. 28 U.S.C § 1441(a) (2012) (“Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.”).
. For a concise summary, see Charles J. Hyland, Removal to Federal Court: The Practitioner’s Tightrope, 63 J. Kan. B. Ass’n. 22 (1994).
. See Katherine J. Florey, Choosing Tribal Law: Why State Choice-of-Law Principles Should Apply to Disputes with Tribal Contacts, 55 Am. U. L. Rev. 1627, 1651–55 (2006) (explaining modern choice of law theories).
. For arguments supporting the benefits of having tribes remain as culturally and politically different from nontribal governments, see Gloria Valencia-Weber, Tribal Courts: Custom and Innovative Law, 24 N.M. L. Rev. 225 (1994) and Katherine Florey, Making it Work: Tribal Innovation, State Reaction, and the Future of Tribes as Regulatory Laboratories, 92 Wash. L. Rev. 713 (2017).
. See supra text accompanying notes 169–170.
. Younger v. Harris, 401 U.S. 37 (1971).
. Generally speaking, the federal abstention doctrines are based on notions of federalism aimed at protecting the sovereign interests of the states of the Union. Therefore, these doctrines would not be applicable to shield Indian tribes from federal interference. For a short overview of the abstention doctrines, see Beth Shankle Anderson, “Our Federalism”—The Younger Abstention Doctrine, and its Companions, 81 Fla. B.J. 9 (2007).
. On the Younger abstention doctrine and its intricacies in the context of removal, see Steven Plitt and Joshua D. Rogers, Charting a Course for Federal Removal Through the Abstention Doctrine: A Titanic Experience in the Sargasso Sea of Jurisdictional Manipulation, 56 DePaul L. Rev. 107, 148–52 (2006). See also Daniel C. Norris, The Final Frontier of Younger Abstention: The Judiciary’s Abdication of the Federal Court Removal Jurisdiction Statute, 31 Fla. St. U. L. Rev. 103 (2003).
. See generally Drew Alan Hillier, Note, The Necessity of an Equity and Comity Analysis in Younger Abstention Doctrine, 46 Conn. L. Rev. 1975 (2014) (explaining the Younger exceptions).
. Doran, supra note 132.
. See supra text accompanying note 117.
. See Sandra Day O’Connor, Lessons from the Third Sovereign: Indian Tribal Courts, 33 Tulsa L.J. 1 (1997).