Daniel G. Sullivan has published “When You’re Just Not “Indian” Enough: The Erosion of Tribal Sovereignty in State v. Nobles and the Case for Deference to Tribes on Questions of Indian Status” in the North Carolina Law Review.

Here is the abstract:

Under the Major Crimes Act, Tribes and the federal government have exclusive jurisdiction over certain “major crimes” committed by an “Indian” in “Indian Country.” In 2012, George Nobles—a “First Descendant” of the Eastern Band of Cherokee Indians—was arrested for robbery and murder on the tribal trust lands of the Eastern Band. Defined by Cherokee law, First Descendants have at least one parent who is a tribal member but are themselves one generation short of the Tribe’s blood quantum requirement for membership. At the time of Nobles’s arrest, First Descendants were recognized by the Eastern Band as “Indian” under Cherokee common and statutory law. Thus, under the Major Crimes Act, only the Eastern Band or the federal government should have been able to prosecute Nobles. Both crimes were “major,” both took place in Indian Country, and Nobles—as a First Descendant—was Indian.

But in State v. Nobles, the Supreme Court of North Carolina concluded that Nobles was just not Indian enough and authorized state jurisdiction. And in doing so, the court overrode a determination that was the Tribe’s to make. State v. Nobles contradicts fundamental precepts of federal Indian law and strikes at the sovereignty of the Eastern Band and similarly-situated Tribes. Where Indian status refers to the political relationship between an individual and a particular Tribe, that Tribe must have the final word on questions of Indian status. Part I of this Comment introduces State v. Nobles and explores Indian Country jurisdiction under the Major Crimes Act. Part II sets forth three principles of federal Indian law against which the facts of Nobles must be viewed and argues that these principles demand deference to Tribes on Indian status. Part III uses these principles to discuss the errors in Nobles. Lastly, Part IV argues that deference to Tribes on Indian status is necessary for robust tribal sovereignty and proposes a more cabined use of the “Rogers test” for Indian status consistent with that understanding.