Columbia Law Review Note on Tribal Adjudicatory Jurisdiction

Here is “The Shrinking Sovereign: Tribal Adjudicatory Jurisdiction Over Nonmembers in Civil Cases,” (PDF) published in the Columbia Law Review.

Here is the abstract:

Tribal jurisdiction over nonmembers is limited to two narrow areas: consensual economic relationships between tribes and nonmembers, and nonmember activity that threatens tribal integrity. Even within these two narrow fields, the Supreme Court has stated that tribal adjudicatory power over nonmembers—the authority to decide legal rights of individuals, usually in a trial-like setting—cannot exceed the tribe’s legislative power over nonmembers—the power to regulate nonmember activity through the enactment of legislation and regulation.  This raises a question that the Court has acknowledged but never answered: whether a tribe may exercise adjudicatory authority over nonmembers as a result of its legislative power. More simply put, is a tribe’s adjudicatory jurisdiction over nonmembers less than, or equal to, its legislative power?


This Note argues that tribes should have concurrent regulatory and adjudicatory jurisdiction over nonmembers in disputes based on consensual economic relationships, but tribal regulation concerning tribal integrity should be subject to greater federal court oversight.  Tribal courts should have presumptive jurisdiction to enforce tribalintegrity regulations; however, proof that the tribal court is unfair or inaccessible to nonmembers should permit federal courts to intervene. By drawing on analogous principles in administrative law, civil procedure, and the law of federal courts, this Note provides a workable solution that is consistent with existing Supreme Court tribal law jurisprudence, that conforms with the normative values shaping jurisdiction in other contexts, and that also respects tribal sovereignty.