New Paper on The Extraterritorial Reach of Tribal Court Criminal Jurisdiction

Grant Christensen has posted “The Extraterritorial Reach of Tribal Court Criminal Jurisdiction” on SSRN. Here is the abstract:

Conflicts over the jurisdiction between tribal, state, and federal courts arise regularly due to the nature of overlapping sovereignty. The Supreme Court accepts an average of almost three Indian law cases a year and has decided more than twenty Indian law cases with a jurisdictional focus since 1978. As tribes become wealthier, they are increasingly acquiring new lands outside of their existing reservations. This expansion of territory generates new border zones where state and tribal interests converge. The Sixth Circuit recently decided the first federal appellate case dealing with the inherent criminal powers of tribal court jurisdiction over the conduct of Indians on tribal land that is located outside of the tribe’s reservation. The unanimous decision of the Sixth Circuit panel upheld the tribe’s inherent right to extraterritorial criminal jurisdiction, but read into the opinion some limiting caveats that originate from civil, and not criminal, jurisdictional principles. This paper reads the Sixth Circuit’s decision in Kelsey v. Pope as the first in what is surely to be a myriad of conflicts over the extraterritorial jurisdiction of tribal courts. It suggests that while the Sixth Circuit’s approach to tribal sovereignty is generally in keeping with Supreme Court precedent, the court erred by conflating criminal with civil authority and thus over limited its discussion of the inherent powers of tribal courts. Instead the paper suggests that a more consistent reading of the inherent extraterritorial criminal powers of Indian tribes should support jurisdiction over both tribal members and tribal territory unless Congress has expressly circumscribed tribal authority. This broader understanding of extraterritorial jurisdiction is not only simpler to apply, but finds better support in Supreme Court precedent than the convoluted reasoning adopted by the Sixth Circuit.

Sixth Circuit Briefs in Kelsey v. Pope


Appellant Opening Brief + Appendices

NCAI Amicus Brief + Appendix

US Amicus Brief

Kelsey Brief

NACDL Amicus Brief

Reply Brief

Lower court materials here.

Federal Court Holds Little River Band Cannot Prosecute Tribal Member Crimes on Tribe-Owned Fee Land Outside of Indian Country

Here are the materials in Kelsey v. Pope (W.D. Mich.):

1 Kelsey Habeas Petition

13 LRB Response to Habeas Petition

16 Kelsey Reply

30 LRB Supplemental Memorandum

31 Kelsey Response

35 MJ R&R

36 LRB Objection

39 Kelsey Reply

41 DCT Order

Kelsey v. Pope, Western District of Michigan

This is a case on tribal court jurisdiction out of the Little River Band of Ottawa Indians.  The tribe owns the Tribal Community Center in fee, where the criminal act between two tribal members occurred.  The petitioner claims the tribal court has no jurisdiction over him to charge or convict him with the crime.  The petitioner filed a habeas petition in federal court.

Habeas brief

Respondent’s brief

There is a hearing scheduled on the matter for May 24th.