tribal court jurisdiction over nonmembers – Page 7

1. Whether the Ninth Circuit correctly holds that tribal jurisdiction over nonmembers is established whenever a Montana exception is met, or whether, as the Seventh and Eighth Circuits have held, a court must also determine that the exercise of such jurisdiction stems from the tribe’s inherent authority to set conditions on entry, preserve tribal self-government, or control internal relations.

2. Whether the Ninth Circuit has construed the Montana exceptions to swallow the general rule that tribes lack jurisdiction over nonmembers.

Lower court materials here.

Update:

Brief in Opposition

US Invitation Brief

FMC Supplemental Brief

Red Cliff Ojibwe Appellate Court Rejects Nonmember Challenge to Tribal Jurisdiction

February 17, 2020Matthew L.M. Fletcher

Here are the materials in Red Cliff Band of Lake Superior Chippewa Indians v. CenturyTel of the Midwest – Kendall, LLC:

PLD 2020-02-04 Final Decision

Briefs here.

Alex Skibine on Legislating Tribal Civil Jurisdiction over Nonmembers [now published]

December 17, 2019Matthew L.M. Fletcher

Alex Tallchief Skibine has published “Incorporation Without Assimilation: Legislating Tribal Civil Jurisdiction over Nonmembers” in the UCLA Law Review Discourse.

The abstract:

For the last forty years the U.S. Supreme Court has been engaged in a measured attack on the sovereignty of Indian tribes when it comes to tribal court jurisdiction over people who are not members of the tribe asserting that jurisdiction. The U.S. Congress has already enacted legislation partially restoring some tribal courts’ criminal jurisdiction over nonmembers. This Article proposes to legislatively reconfirm the civil jurisdiction of tribal courts over such nonmembers. After examining the Supreme Court’s jurisprudence in this area and summarizing the Court’s main concerns with such tribal jurisdiction, this Article explores various legislative options before settling on a preferred course of action. The proposal set forth in the last part of this Article would reconfirm tribal court civil jurisdiction over nonmembers provided the tribal courts has established personal jurisdiction over the parties. However, tribal courts’ determinations on this subject would be appealable to federal courts. Furthermore, the Article proposes to allow nonmembers being sued in tribal courts the option of removing their cases to federal courts under certain conditions.