Katherine Florey has posted her paper, “Beyond Uniqueness: Reimagining Tribal Courts’ Jurisdiction,” forthcoming in the California Law Review, on SSRN.

Here is the abstract:

If there is one point about tribal status that the Supreme Court has stressed for decades if not centuries, it is the notion that tribes as political entities are utterly one of a kind. This is to some extent reasonable; tribes, unlike other governments, have suffered the painful history of colonial conquest, making some distinctive treatment eminently justifiable. But recent developments have demonstrated to many tribes that uniqueness has its disadvantages. In the past few decades, the Supreme Court has undertaken a near-complete dismantling of tribal civil jurisdiction over nonmembers. Under current law, tribes have virtually no authority to permit nonmembers to be haled into tribal courts – even when nonmembers have significant ties to the tribe and have come onto the reservation for personal gain. In this project of limiting tribal power, as with so much of the Court’s Indian law jurisprudence, the Supreme Court has emphasized tribes’ distinctive status, notably failing to consider the relevance of more generally applicable doctrines such as personal jurisdiction. Tribal uniqueness has thus come to include tribes’ singular inability to exercise jurisdiction over nonmembers, despite the reality that people and commerce move freely across tribal and non-tribal land.

This is a mistake. Tribal court jurisdiction has much in common with broader notions of personal jurisdiction, and treating it in any other way limits and distorts courts’ analysis. Indeed, the field of jurisdiction presents a striking disparity between the absence of factors actually unique to the tribal context and the extreme idiosyncrasy of the Court’s doctrine. No good reason exists why existing personal jurisdiction doctrines could not be adapted to encompass the issues that tribal court jurisdiction presents; that is true even if one concedes various premises of the Court’s opinions, such as the idea that it is inherently burdensome in most cases for nonmembers to defend in tribal court. Further, because minimum contacts analysis allows courts to take a nuanced, flexible view of the degree of connection between the defendant and the forum, personal jurisdiction doctrine is perfectly suited to addressing the often-complex fact patterns that characterize modern disputes involving Indian country. For these reasons, the Article argues, limitations on tribal court jurisdiction over nonmembers should be recharacterized as limits on personal jurisdiction. This would both harmonize tribal courts’ jurisdiction with that of state courts, and do a better job than current doctrine in balancing the legitimate interests of both tribes and nonmember defendants.