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

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.

Alex Skibine on Legislating Tribal Civil Jurisdiction Over Non-Members

Alexander Tallchief Skibine has posted a very interesting paper, “Incorporation Without Assimilation: Legislating Tribal Civil Jurisdiction Over Non-Members,” on SSRN. It is forthcoming in the UCLA Law Review Discourse.

The abstract:

For the last 40 years the 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 Congress has already enacted legislation partially restoring some tribal courts’ criminal jurisdiction over non-members. This Essay proposes to legislatively reconfirm the civil jurisdiction of tribal courts over such non-members. After examining the Supreme Court’s jurisprudence in this area and summarizing the Court’s main concerns with such tribal jurisdiction, this Essay explores various legislative options before settling on a preferred course of action. The proposal set forth in the last part of this Essay would reconfirm tribal court civil jurisdiction over non-members 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 Essay proposes to allow non-members being sued in tribal courts the option of removing their cases to federal courts under certain conditions.

New Student Scholarship on the Tribal Law and Order Act

Seth J. Fortin has published “The Two-Tiered Program of the Tribal Law and Order Act” (PDF) in the UCLA Law Review Discourse.

Here is the abstract:

The Tribal Law and Order Act of 2010 was intended to significantly expand the sentencing powers of tribal courts, raising the maximum sentence for a given offense from one year to three. But the Act requires courts that would take advantage of these new powers to provide significant procedural protections to criminal defendants, while failing to provide the funding most tribal courts would need to make those protections a reality. Moreover, the Act leaves vague and open to interpretation the precise form those protections should take, which is an open invitation to federal courts to scrutinize tribal court procedure; this, in turn, may put tribal courts in the position of choosing between longer sentences and retaining their traditional character. These two obstacles—lack of funding, and the danger to tribal courts’ unique character— mean that the Act is likely to sort tribes into two “tiers”: wealthier or more assimilated tribes will be able to take advantage of the longer sentences, while tribes that cannot afford (whether financially or culturally) to change their practices will be left unable to adequately sentence serious offenders. And because of the way the Act resolves a longstanding ambiguity in Indian law, some tribes in the latter group may be left with less sentencing power than they had previously.

New Scholarship on U.S. v. Tohono O’odham Nation

Craig A. Schwartz has published Footloose: How to Tame the Tucker Act Shuffle After United States v. Tohono O’odham Nation in the UCLA Law Review Discourse.

The article has very little to do with Indian law, but demonstrates (if you read between the lines a bit) how the United States probably used all of the Indian claims cases now being dismissed en masse to also wipe out a class of claims based on regulatory takings. If the CFC “shuffle” case had arisen in the regulatory takings context, imagine how Scalia, J. would have reacted.