Turtle Talk

Today, as this Note has demonstrated, there remains a clear divide between state and tribal civil jurisdiction powers. While states have come to enjoy a form of civil jurisdiction that can reach beyond their boundaries regardless of state citizenship, tribes remain confined to specific lands within their territory when it comes to jurisdiction over nonmembers.341 It has become more evident that the reasons are based on fairness to the nonmember parties, particularly to non-Indians.342 That stigma of unfairness must be addressed in order to ensure that jurisdiction over nonmembers is not similarly compromised on tribal lands, and possibly to enlarge tribal jurisdiction on nonmember fee lands.

Looking forward, reviewing courts of non-tribal jurisdictions must be convinced that tribal judgments afford nonmembers basic due process rights. At the same time, tribal judges must be cognizant of the fact that a reviewing court, especially the Supreme Court, will look to whether the applicable tribal law was fairly applied to the nonmember. Thus, their judgments over nonmembers must be expressly limited to intertribal common law principles that are comparable to American common law. Similarly, as more tribes draft and amend their constitutions and statutes, they should ensure that their laws adequately provide due process to nonmembers. Without assurances of procedural fairness to nonmembers, there is the risk of a Supreme Court decision with a bright-line rule that uniformly strips tribal civil jurisdiction over nonmembers regardless of land status. After Hicks and Plains Commerce Bank, the tools at least seem to be in place.

Interestingly, the United States and the Mountain States Legal Foundation filed amicus curiae briefs that cited Fletcher’s article to support contradictory propositions. The United States filed in support of the Long family and used Fletcher’s article to argue that tribal courts usually apply American legal principles to non-Indians. See Brief for the United States as Amicus Curiae Supporting Respondents at 28 n.15, Plains Commerce Bank v. Long Family Land & Cattle Co., 128 S. Ct. 2709 (2008) (No. 07-411), 2008 WL 742923. The Mountain States Legal Foundation, on the other hand, filed in support of the Bank and disregarded Fletcher’s argument that tribes apply familiar Anglo-American legal principles to non-Indians; instead, it highlighted the fact that many tribes are still recovering their traditions, which makes the tribal court process unfair to tribal members, and even more so to nonmembers, who do not know the traditions that will govern them in court. See Amicus Curiae Brief of Mountain States Legal Foundation in Support of Petitioner, Plains Commerce Bank at 20, Plains Commerce Bank v. Long Family Land & Cattle Co., 128 S. Ct. 2709 (2008) (No. 07-411), 2008 WL 503596. Unfortunately, the United States amicus curiae attorney did not utilize Fletcher’s points at oral argument, particularly when Justice Scalia analogized tribal court jurisdiction over nonmembers to being “home fried in a foreign State.” Transcript of Oral Argument at 37, Plains Commerce Bank, 128 S. Ct. 2709 (No. 07-411).