Opinion: No tribal jurisdiction over non-Indians

William Perry Pendley is President and Chief Legal Officer of the Mountain States Legal Foundation.

"Recently, the Supreme Court has whittled away at the jurisdiction of the nation’s 250 tribal courts. In 1978, it ruled that tribal courts lack criminal jurisdiction over non-Indians; in

1990, it held they lack criminal jurisdiction over non-member Indians, a ruling that Congress reversed in 1991 as to misdemeanors. Meanwhile, in 1981, it held that, while tribes “may regulate . . . the activities of nonmembers who enter consensual relationships with the tribe or its members,” tribes have civil jurisdiction only over “non-Indians on fee lands within its reservation when [their] conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Then, in 2001, it rejected a tribe’s claim of civil jurisdiction over non-Indians and three justices sounded a death knell for tribal courts by cataloguing their constitutional and procedural deficiencies.

The Anglo-American judicial system involves two parties who seek to win, through adversarial fact-finding, by focusing solely on the act involved. Moreover, it views separation of judicial, executive, and legislative branches as essential to fairness and justice, as is the separation of church and state. On the other hand, the American Indian judicial system uses a holistic process to repair relationships and strive for consensus, during which the guiding principles are unwritten laws, traditions, and practices learned by example and oral teaching, with no separation of powers or distinction between the sacred and the secular.

Moreover, Anglo-American common law seeks the reasoned elaboration of rules by judges, rules that are definite, predictable, and part of an institutional memory, whereas in the American Indian system, “values, mores, and norms” are largely unknown. In fact, during tribal court proceedings, it is not only the non-Indian or non-member Indian litigant who is unfamiliar with the controlling “common law,” most tribal members and the tribal judge are in the dark. Finally, there are 562 federally recognized Indian Tribes, each with its own customs, traditions, social norms, and “common law.”

Given the Court’s recent jurisprudence on the subject, a majority of the justices may be ready and willing to end all tribal jurisdiction over non-members with this case. It is long since time that they did so! "

Get the Story:
William Perry Pendley: Judging Civil Liability Using "Values, Mores, and Norms" (Town Hall 3/1)

Relevant Documents:
Docket Sheet: No. 07-411 | Petition | Opposition

Appeals Court Decision:
Plains Commerce Bank v. Long Family Land and Cattle Company (June 26, 2007)

Lower Court Decision:
Plains Commerce Bank v. Long Family Land and Cattle Company (July 18, 2006)

Related Decision:
Smith v. Salish Kootenai College (January 10, 2006)

Relevant Links:
Cheyenne River Sioux Tribe - http://www.sioux.org
Plains Commerce Bank - http://www.plainscommerce.com
NARF-NCAI Tribal Supreme Court Project - http://doc.narf.org/sc/index.html

Related Stories:
Supreme Court agrees to hear tribal jurisdiction case (1/8)
Appeals court upholds tribal verdict in bank loan case (6/28)
Court subjects non-Indian bank to tribal laws (7/20)