A memorandum acknowledging all of the issues federal courts have created regarding tribal jurisdiction on tribal lands, and tribal jurisdiction over non-members.  However, in the court’s opinion, the judge demonstrates the fundamental problem with arguing for tribal jurisdiction over non-members in federal courts at this point:

As this court previously explained, at least where tribal authority over non-Indians is concerned, the Supreme Court discarded the elegant simplicity of Cohen’s analysis in favor of an amorphous legal standard that finds its source not in treaty or statute, but in abstract notions of intergovernmental dependency and subservience.

. . .

That plaintiffs counsel fundamentally disagrees with the Supreme Court’s reading of the pertinent treaties and statutes does not deprive the Court’s case law of its binding precedential effect upon the lower federal courts, including the Tenth Circuit and this court. Nor may we overrule or simply ignore what the Supreme Court has said.

. . .

The plaintiffs may well dispute the rule and reasoning of the Supreme Court’s “pathmarking case, Montana v. United States, 450 U.S. 544, 564-65, 101 S. Ct. 1245, 67 L. Ed. 2d 493 (1981),” and the later cases that follow Montana, such as Nevada v. Hicks, 533 U.S. 353, 121 S. Ct. 2304, 150 L. Ed. 2d 398 (2001), and most recently, Plains Commerce Bank. ⁷ A number of scholars have penned incisive critiques of the Court’s implied diminishment of tribal civil and criminal jurisdiction over non-Indians. ⁸ In this case, plaintiffs’ counsel has made a credible showing that members of Congress and the Supreme Court may not be on the same page as far as the role and powers of Indian tribal courts are concerned, ⁹ and counsel appears entirely correct in asserting that “nothing Congress or the Executive have done [has] limited Navajo Court authority over anyone, Indian or non-Indian, [*32] for injurious acts occurring within the Navajo Nation[‘s] exterior borders.” (Pltfs’ Obj. at 22.) Nor have the plaintiffs strayed far afield in arguing the importance of giving effect to Navajo tort law as a vital aspect of tribal self-government. See, e.g., Smith v. Salish Kootenai College, 434 F.3d 1127, 1140 (9th Cir. 2006) (en banc) (“The Tribes’ system of tort is an important means by which the Tribes regulate the domestic and commercial relations of its members.”). And an argument may well be made that whatever its merits in its own context, Montana‘s rule and reasoning should find no application at all to the differing historical and legal context of the Navajo Nation and its reservation. ¹⁰

But [emphasis added] having made the strategic choice to pursue enforcement of the Navajo court orders in federal court before the tribal court proceedings had been fully concluded, plaintiffs Singer, Riggs and Dickson raised the “federal question” of the extent of tribal jurisdiction over the non-Indian defendants in a federal forum, short-circuiting the usual exhaustion of Navajo tribal remedies, including review by the Navajo Supreme Court. ¹¹ Having been raised in this forum, the jurisdictional question was ultimately decided by the court of appeals, with an outcome that was adverse to the plaintiffs.

The rest of our MacArthur v. San Juan County materials can be found here. The opinion here indicates some of the frustration on both sides regarding the Supreme Court’s recent legacy of federal Indian law cases.  MacArthur v. San Juan County, U.S. District Court