Beyond uniqueness: Reimagining tribal courts' jurisdiction

California Law Review

Volumn 101, Issue 6, 2013, Pages 1499-1564

  Florey, Katherine ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 84893541419     PISSN: 00081221     EISSN: None     Source Type: Journal    
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References (247)

1. The vogue for referring to tribes as "unique" is a relatively recent one. I have found no Supreme Court case prior to 1974 that uses the term to characterize general attributes of tribal status. The earliest use appears to be in Morton v. Mancari, 417 U.S. 535 (1974), in which the Court refers to the federal government's "unique obligation" toward the tribes and also to the "unique legal status of tribal and reservation-based activities." Id. at 546, 555.
2. Although early cases did not use the word "unique," they did frequently emphasize the distinctiveness of tribes' legal position. Thus, in Cherokee Nation v. Georgia, 30 U.S. 1 (1831)the case in which Justice Marshall famously coined the phrase "domestic dependent nations" to describe the tribesthe Court noted that "the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist no where else." Id. at 2.
3. Among the numerous areas of federal Indian law the Court has described as "unique" are the "tax immunity jurisprudence" the Court has applied to Indian country, Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 112 (2005), and the federal government's "unique powers to manage and control tribal property,"
4. United States v. Sioux Nation of Indians, 448 U.S. 371, 409 n.26 (1980).
5. Likewise, the Court has noted that tribes and the United States participate in a "unique trust relationship," Cnty. of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247 (1985), that imposes a "unique obligation" on the federal government, Morton, 417 U.S. at 555.
6. United States v. Mazurie, 419 U.S. 544, 557 (1975).
7. Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 851 (1985).
8. United States v. Wheeler, 435 U.S. 313, 323 (1978).
9. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980). Further, a primary reason that tribes are permitted to retain this sovereignty is to promote their "unique customs and social order."
10. Duro v. Reina, 495 U.S. 676, 686 (1990).
11. Morton, 417 U.S. at 554.
12. Rice v. Cayetano, 528 U.S. 495, 520 (2000). Note that, lest anyone think I am unfairly nitpicking the Supreme Court, I readily concede that this particular linguistic habit is a "uniquely" difficult one to avoid when talking about tribes and Indian country.
13. See Katherine J. Florey, Indian Country's Borders: Territoriality, Immunity, and the Construction of Tribal Sovereignty, 51 B.C. L. REV. 595, 603 (2010) (discussing the "unique status of tribal lands").
14. These historical injustices have been chronicled in various ways. See, e.g., FRANK POMMERSHEIM, BROKEN LANDSCAPE: INDIANS, INDIAN TRIBES, AND THE CONSTITUTION (2009);
15. ROBERT A. WILLIAMS, JR., LIKE A LOADED WEAPON: THE REHNQUIST COURT, INDIAN RIGHTS, AND THE LEGAL HISTORY OF RACISM IN AMERICA (2005).
16. See Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 HARV. L. REV. 431, 445-48 (2005) (discussing the canons of interpretation and how they have afforded some degree of protection to tribal interests). Other ways in which tribes benefit from their distinctive status include the semi-exemption from equal protection jurisprudence the federal government has with respect to tribes, enabling it to give tribal members preference in federal hiring, see id. at 446-47, and the several ways in which the sovereign immunity of tribes is more robust than that of states. See Florey, supra note 8, at 627-28.
17. See Montana v. United States, 450 U.S. 544 (1981).
18. See Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997).
19. See Nevada v. Hicks, 533 U.S. 353 (2001).
20. See EXC, Inc. v. Jensen, No. CV 10-08197-PCT-JAT, 2012 WL 3264526, at 1-2 (D. Ariz. Aug. 9, 2012).
21. See Matthew L.M. Fletcher, Resisting Federal Courts on Tribal Jurisdiction, 81 U. COLO. L. REV. 973, 1002 (2010).
22. See Timothy Williams, Washington Steps Back from Policing Indian Lands, Even as Crime Rises, N.Y. TIMES, Nov. 13, 2012, at A13.
23. Expanded civil jurisdiction even has potential as one way of addressing reservation crime. Outside Indian country, for example, victims of rape and sexual assault have made productive use of civil suits against offenders. See Ellen M. Bublick, Tort Suits Filed by Rape and Sexual Assault Victims in Civil Courts: Lessons for Courts, Classrooms, and Constituencies, 59 SMU L. REV. 55, 71- 73 (2006) (noting that civil suits have some advantages for sexual assault victims, including standards of proof that are easier to satisfy, and that courts have reached "progressive results" in many such cases).
24. See, e.g., Strate v. A-1 Contractors, 520 U.S. 438, 459 (1997) (describing tribal court as "unfamiliar" and contrasting it to the "commonplace" claim at issue).
25. As the Ninth Circuit put it recently (and with a certain amount of tact), "The Court . . . has never defined Indian tribal 'subject matter jurisdiction' with the same precision as we use that term [in the Article III context]." Smith v. Salish Kootenai Coll., 434 F.3d 1127, 1137 (9th Cir. 2006) (en banc).
26. See, e.g., Strate, 520 U.S. at 453 (describing tribes' adjudicative and legislative jurisdictions).
27. See Nevada v. Hicks, 533 U.S. 353, 367 n.8 (2001) (describing tribes' jurisdiction as pertaining to "subject matter").
28. Justice Scalia notoriously articulated this fear during oral argument in Strate, suggesting that nonmembers passing through reservations should avoid the possibility of tribal jurisdiction by staying on the "good roads": "Just stay on the good roads; you've got nothing to worry about. Stay on the state highways." Transcript of Oral Argument at 43, Strate v. A-1 Contractors, 520 U.S. 438 (1997) (No. 95-1872), 1997 WL 10398. Editor's Note: The published transcript of the oral argument does not identify the names of the justices asking the questions. Professor Florey used the audio recording of the oral argument to identify which Justice asked each question.
29. See, e.g., Bethany R. Berger, Justice and the Outsider: Jurisdiction over Nonmembers in Tribal Legal Systems, 37 ARIZ. ST. L.J. 1047, 1052 (2005) (describing the "good track record" of Navajo courts in adjudicating the claims of nonmembers fairly).
30. For a valuable albeit slightly dated (in light of recent cases) account of the jurisdictional difficulties created by the Court's confusing pronouncements, see Laurie Reynolds, Adjudication in Indian Country: The Confusing Parameters of State, Federal, and Tribal Jurisdiction, 38 WM. & MARY L. REV. 539 (1997).
31. This attitude in turn threatens to foster a notion that the proper status of tribes is separateness, that tribes should retreat into themselves and exercise authority over only their own members, not interfering with the nontribal world around them. Reinforcing this fear are decisions in cases like Brendale v. Confederated Tribes & Bands of the Yakima Nation, 492 U.S. 408 (1989), in which a fractured Court held that the Yakima Nation had greater powers to regulate nonmember land in an area of the reservation mostly closed to the public than in one that was more open. See id. at 419- 21, 432-33. Of course, even assuming such separatism were a desirable outcome for tribes, it is increasingly difficult in the modern world. Travel, commerce, and communications make multijurisdictional conflicts and disputes increasingly common everywhere, and that tendency is, if anything, exacerbated on most reservations, which have a long history of "checkerboard" land status in which much property is owned by nonmembers who may have varying degrees of connection to the tribe.
32. See Katherine J. Florey, Choosing Tribal Law: Why State Choice-of-Law Principles Should Apply to Disputes with Tribal Contacts, 55 AM. U. L. REV. 1627, 1635-36 (2006). Thus, tribes are frequently stuck in an unwinnable situation, thrust into multijurisdictional conflicts but lacking the power to resolve them.
33. See, e.g., Strate, 520 U.S. 438, 459 (1997) (alluding to such difficulties).
34. See Quill Corp. v. North Dakota, 504 U.S. 298, 307 (1992) (noting that the Court has "abandoned more formalistic tests . . . in favor of a more flexible inquiry into whether a defendant's contacts with the forum made it reasonable . . . to require it to defend the suit in that State").
35. See, e.g., Nevada v. Hicks, 533 U.S. 353, 367 n.8 (2001) (rejecting comparisons between the jurisdiction of tribal courts and personal jurisdiction).
36. See, e.g., Sarah Krakoff, The Renaissance of Tribal Sovereignty, the Negative Doctrinal Feedback Loop, and the Rise of a New Exceptionalism, 119 HARV. L. REV. F. 47, 52-53 (2005) [hereinafter New Exceptionalism] (lamenting the Supreme Court's failure to apply personal jurisdiction concepts to cases involving tribal jurisdiction over nonmembers);
37. Sarah Krakoff, Undoing Indian Law One Case at a Time: Judicial Minimalism and Tribal Sovereignty, 50 AM. U. L. REV. 1177, 1260 (2001) (arguing that the Supreme Court should have applied personal jurisdiction concepts in Strate).
38. See, e.g., Joshua Jay Kanassatega, The Case for "Expanding" the Abstention Doctrine to Account for the Laws and Policies of the American Indian Tribes, 47 GONZ. L. REV. 589, 640 (2012) (using Montana as an example through which to compare personal jurisdiction and tribal jurisdiction doctrines).
39. See, e.g., Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802, 805-06 (9th Cir. 2011) (discussed infra Part II.D.2).
40. See Hartford Fire Ins. Co. v. California, 509 U.S. 764, 813-14 (1993) (Scalia, J., dissenting) (noting the existence of this distinction).
41. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE U.S. § 401 (1987).
42. Catherine T. Struve, How Bad Law Made a Hard Case Easy: Nevada v. Hicks and the Subject Matter Jurisdiction of Tribal Courts, 5 U. PA. J. CONST. L. 288, 298 (2003).
43. Gary B. Born, Reflections on Judicial Jurisdiction in International Cases, 17 GA. J. INT'L & COMP. L. 1, 2 (1987).
44. See Pennoyer v. Neff, 95 U.S. 714, 733 (1877) ("Since the adoption of the Fourteenth Amendment to the Federal Constitution, the validity of . . . judgments may be directly questioned . . . on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law."). Restrictions on state legislative jurisdiction are somewhat murkier in origin, but also have apparent constitutional sources in (at a minimum) the Due Process Clause, Full Faith and Credit Clause, and the Dormant Commerce Clause.
45. See Katherine Florey, State Courts, State Territory, State Power: Reflections on the Extraterritoriality Principle in Choice of Law and Legislation, 84 NOTRE DAME L. REV. 1057, 1068 (2009).
46. Because most state courts are courts of general jurisdictioni.e., subject to no subject matter limitsstate courts generally need not undertake a subject matter jurisdiction inquiry. See ERWIN CHEMERINSKY, FEDERAL JURISDICTION 265 (5th ed. 2007). The issue of subject matter jurisdiction is discussed in more detail in Part III.A, infra.
47. See, e.g., World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980) ("The Due Process Clause of the Fourteenth Amendment limits the power of a state court to render a valid personal judgment against a nonresident defendant.").
48. See Allstate Ins. Co. v. Hague, 449 U.S. 302, 308 (1981) (plurality opinion).
49. See Healy v. Beer Inst., 491 U.S. 324, 336 (1989).
50. See 95 U.S. 714, 733 (1877).
51. 326 U.S. 310, 316 (1945).
52. I do not differentiate here between state and federal courts, because federal courts generally have personal jurisdiction over defendants only to the same extent as do the states in which they are located. See FED. R. CIV. P. 4(k)(1)(A).
53. 326 U.S. at 316.
54. See Burnham v. Super. Ct., 495 U.S. 604, 623 (1990) ("By its very language, that test [for determining the existence of jurisdiction under the Due Process Clause] is satisfied if a state court adheres to jurisdictional rules that are generally applied and have always been applied in the United States."). Burnham found the exercise of "tag" jurisdiction to comport with the Due Process Clause; note that, although only a plurality of the Court signed on to the language quoted above, this result was unanimous.
55. See, e.g., Goodyear Dunlop Tires Operations v. Brown, 131 S. Ct. 2846 (2011);
56. J. McIntyre Mach. v. Nicastro, 131 S. Ct. 2780 (2011);
57. Asahi Metal Indus. Co. v. Super. Ct., 480 U.S. 102 (1987);
58. Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985);
59. Calder v. Jones, 465 U.S. 783 (1984);
60. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980);
61. Shaffer v. Heitner, 433 U.S. 186 (1977);
62. McGee v. Int'l Life Ins. Co., 355 U.S. 220 (1957);
63. Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952).
64. See, e.g., Burger King, 471 U.S. at 473 (noting that the Court's personal jurisdiction cases have "emphasized that parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other State for the consequences of their activities") (citation and internal quotation marks omitted).
65. The Restatement (Third), for example, permits jurisdiction to be exercised over a defendant who "regularly carries on business in the state," who "had carried on activity in the state, but only in respect of such activity," and who "had carried on outside the state an activity having a substantial, direct, and foreseeable effect within the state, but only in respect of such activity." RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE U.S. § 421(2)(h)-(j) (1987).
66. See Goodyear, 131 S. Ct. at 2851 ("Opinions in the wake of the pathmarking International Shoe decision have differentiated between general or all-purpose jurisdiction, and specific or caselinked jurisdiction.").
67. Burger King, 471 U.S. at 474-75
68. (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)).
69. See, e.g., Calder v. Jones, 465 U.S. 783, 789 (1984).
70. See Burger King, 471 U.S. at 475-76 (contrasting "random, fortuitous, or attenuated contacts," which do not give rise to personal jurisdiction, to a defendant's "deliberate[]" decisions to "engage[] in significant activities" or "create[] continuing obligations" in the forum, which do) (citations and internal quotation marks omitted).
71. 480 U.S. 102 (1987).
72. The Court had first articulated the "reasonableness" factors in passing in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980), and had alluded to them in Burger King, 471 U.S. at 477, but had never before applied them to defeat the existence of personal jurisdiction.
73. Asahi Metal, 480 U.S. at 113-14. Specifically, the reasonableness factors include "the burden on the defendant, the interests of the forum State, and the plaintiff's interest in obtaining relief," as well as the "interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies." Id. at 113 (citation and quotation marks omitted). The Court noted that, in a case involving a foreign defendant, "this advice calls for a court to consider the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction by the California court." Id. at 115.
74. See Linda J. Silberman, Goodyear and Nicastro: Observations from a Transnational and Comparative Perspective, 63 S.C. L. REV. 591, 594 (2012) (noting that "the post-Asahi cases in the state and federal courts did not limit the reasonableness prong to foreign-country defendants, although my own read of many of the cases suggests that most of the cases that ultimately invoke unreasonableness as the basis for rejecting specific jurisdiction actually involve foreign defendants").
75. 131 S. Ct. 2780 (2011). The Court found there was no personal jurisdiction over the British defendant in that case, but did not invoke the reasonableness test. Professor Silberman suggests that one explanation for this may be that "the Court determined that the requirement of minimum contacts was not met, and thus had no reason to proceed further," although she also notes that another possibility is that the Court is retreating from the reasonableness test to some extent. Silberman, supra note 78, at 595.
76. McIntyre, 131 S. Ct. at 2794.
77. The Restatement (Second) of Conflict of Laws is currently relied upon by nearly half of courts in the United States in both tort and contract cases, but states follow one of at least seven distinct approaches. See Symeon C. Symeonides, Choice of Law in the American Courts in 2011: Twenty-Fifth Annual Survey, 60 AM. J. COMP. L. 291, 309 (2012). Further, at least one commentator has suggested that the popularity of the Second Restatement does not lead to any greater uniformity or predictability, since the hallmark of the Second Restatement is its flexibility, allowing judges to apply it differently according to personal preference or their sense of the justice of the case.
78. See Stewart E. Sterk, The Marginal Relevance of Choice-of-Law Theory, 142 U. PA. L. REV. 949, 951 (1994) (observing that in many choice-of-law-decisions, "the result in the case often appears to have dictated the judge's choice of law approach at least as much as the approach itself generated the result" and suggesting that "[t]he widespread popularity of the Second Restatement of Conflict of Laws, perhaps the most malleable of choice of law approaches, tends to confirm [this suspicion]").
79. See Katherine Florey, State Law, U.S. Power, Foreign Disputes: Understanding the Extraterritorial Effects of State Law in the Wake of Morrison v. National Australia Bank, 92 B.U. L. REV. 535, 554-55 (2012).
80. See Christopher A. Whytock, The Evolving Forum Shopping System, 96 CORNELL L. REV. 481, 495 (2011) (noting the existence of forum law bias).
81. See Sun Oil Co. v. Wortman, 486 U.S. 717, 717 (1988) (noting that "frequently . . . a court can lawfully apply either the law of one State or the contrary law of another").
82. See Allstate Ins. Co. v. Hague, 449 U.S. 302, 308 (1981) (plurality opinion).
83. Although the opinion in Hague was endorsed only by a plurality, a majority of the Court subsequently signed on to the "aggregation of contacts" language in Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818, 821 (1985).
84. See, e.g., Hague, 449 U.S. at 319 (discussing plaintiff's contacts with Minnesota as a basis for the court's personal jurisdiction).
85. See Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 COLUM. L. REV. 249, 257-58 (1992) (describing Hague as dispensing with any "meaningful" limits on a court's choice of forum law).
86. In class actions, however, the limitations of Hague have proved more important. In Shutts, 472 U.S. at 797, the Court held that Kansas could not constitutionally apply its law to a class action involving royalties on oil leases where the large majority of both leases and leaseholders were located outside Kansas, notwithstanding the fact that the defendant did substantial business in Kansas. Id. at 799-801. Although Shutts indicates that state choice-of-law decisions will be subject to more scrutiny in class actions, at least one commentator has noted that the limitations it imposes are still not particularly onerous.
87. See Chad DeVeaux: Lost in the Dismal Swamp: Interstate Class Actions, False Federalism, and the Dormant Commerce Clause, 79 GEO. WASH. L. REV. 995, 998 (2011).
88. 491 U.S. 324 (1989).
89. See Mark D. Rosen, "Hard" or "Soft" Pluralism?: Positive, Normative, and Institutional Considerations of States' Extraterritorial Powers, 51 ST. LOUIS U. L.J. 713, 731-38 (2007) (considering, though ultimately rejecting, arguments that various constitutional provisions limit states' extraterritorial powers).
90. See Mark D. Rosen, Extraterritoriality and Political Heterogeneity in American Federalism, 150 U. PA. L. REV. 855, 863-64 (2002) (arguing that states have the power to regulate their citizens' extraterritorial activities).
91. See Burger King v. Rudzewicz, 471 U.S. 462, 475-76 (1985).
92. See Asahi Metal Indus. Co. v. Super. Ct., 480 U.S. 102, 115 (1987).
93. See, e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 799-801 (1985).
94. See Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997) ("[A] tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction.").
95. See Nevada v. Hicks, 533 U.S. 353, 382 (2001) ("It is the [tribal] membership status of the unconsenting party . . . that counts as the primary jurisdictional fact.").
96. 435 U.S. 191 (1978).
97. 358 U.S. 217 (1959).
98. 31 U.S. 515, 520 (1832).
99. 104 U.S. 621, 624 (1881).
100. See COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 80-81 (2005).
101. 358 U.S. 217 (1959).
102. See Bethany R. Berger, Williams v. Lee and the Debate over Indian Equality, 109 MICH. L. REV. 1463, 1465 (2011) (describing Williams's importance in federal Indian law and policy).
103. See Williams, 358 U.S. at 218.
104. See Williams, 358 U.S. at 219
105. (quoting Worcester v. Georgia, 31 U.S. 515, 561 (1832)).
106. See Berger, supra note 121, at 1513 ("Much of the November 20th argument in the case was consumed with procedural questions. . . . This led to a[n] . . . important question: Did the petitioners argue that the state court lacked subject-matter jurisdiction over the dispute or personal jurisdiction over the defendants? Littell could not quite answer this question: sometimes he said they lacked personal jurisdiction, sometimes subject-matter jurisdiction, and when challenged he ultimately asked to throw himself on the mercy of the Supreme Court and have this question resolved in chambers." (citing Oral Argument, Williams, 358 U.S. 217 (No. 39))).
107. See Williams, 358 U.S. at 223 (referring to "the exercise of state jurisdiction" without indicating what sort of jurisdiction the Court meant).
108. See Bethany R. Berger, Sheep, Sovereignty, and the Supreme Court: The Story of Williams v. Lee, in INDIAN LAW STORIES 359, 364-66 (2011).
109. See Martin B. Louis, Jurisdiction over Those Who Breach Their Contracts: The Lessons of Burger King, 72 N.C. L. REV. 55, 58 (1993) ("From 1959 to 1976, the Supreme Court did not decide a single personal jurisdiction case . . . . The Court finally broke its silence in 1977 and since then has handed down one or more jurisdictional decisions in almost every term.").
110. See, e.g., Richard L. Marcus, Reassessing the Magnetic Pull of Megacases on Procedure, 51 DEPAUL L. REV. 457, 463 (2001) (noting that the first mass tort cases arose in the 1960s, and that this type of litigation did not become prevalent until the 1980s).
111. See Williams v. Lee, 358 U.S. 217, 218 (1959) (describing issue as whether Arizona courts may "exercise jurisdiction over civil suits by non-Indians against Indians"); id. at 222 ("Today the Navajo Courts of Indian Offenses exercise broad criminal and civil jurisdiction which covers suits by outsiders against Indian defendants.").
112. For a comprehensive account, see Philip P. Frickey, A Common Law for Our Age of Colonialism: The Judicial Divestiture of Tribal Authority over Nonmembers, 109 YALE L.J. 1, 8-13 (1999).
113. 435 U.S. 191 (1978).
114. Oliphant, 435 U.S. at 209.
115. 450 U.S. 544 (1981).
116. Moreover, the Court likely viewed the regulation at stake in Montanainaccurately, as it happensas motivated by discriminatory intent toward nonmembers. See John P. LaVelle, Beating a Path of Retreat from Treaty Rights and Tribal Sovereignty: The Story of Montana v. United States, in INDIAN LAW STORIES (2011), at 539-41 (describing the Court's indifference to the abundant evidence that the Crow Tribe's regulation was passed in response to a significant problem of tourists traveling to the reservation to hunt and fish, thus severely depleting the tribe's resources).
117. See, e.g., Red Fox v. Hettich, 494 N.W.2d 638, 646-48 (S.D. 1993) (applying Montana to determine the extent of a tribe's adjudicatory jurisdiction).
118. 520 U.S. 438 (1997).
119. 471 U.S. 845 (1985).
120. 480 U.S. 9 (1987).
121. See Nat'l Farmers, 471 U.S. at 856 ("We believe that examination [of a tribal court's jurisdiction] should be conducted in the first instance in the Tribal Court itself.").
122. See Iowa Mutual, 480 U.S. at 16 ("Although . . . federal jurisdiction in this case is based on diversity of citizenship, . . . the exhaustion rule announced in National Farmers Union applies here as well.").
123. National Farmers, of course, requires exhaustion of tribal remedies before a federal court can consider the question of whether a tribal court exceeded its jurisdiction; it nonetheless clarifies, however, that some external limits on tribal court jurisdiction do exist, and that federal courts may eventually be called upon to police them. See Nat'l Farmers, 471 U.S. at 853 (finding that "a federal court may determine under § 1331 whether a tribal court has exceeded the lawful limits of its jurisdiction").
124. See, e.g., Red Fox v. Hettich, 494 N.W.2d 638, 646-48 (S.D. 1993).
125. See Hinshaw v. Mahler, 42 F.3d 1178, 1180-81 (9th Cir. 1994) (applying the Montana standard to determine propriety of tribal subject matter jurisdiction and minimum contacts standard to assess personal jurisdiction);
126. Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1228-29 (9th Cir. 1989) (distinguishing between personal and subject matter jurisdiction and finding that "even if the consent of [the defendant] was adequate to confer personal jurisdiction on the tribal court . . . [the] question of whether the tribal court had subject matter jurisdiction over the case would still not be resolved").
127. Stock W. Corp. v. Taylor, 964 F.2d 912, 919-20 (9th Cir. 1992) (citing the Restatement (Second) of Conflict of Laws in holding that it was "a colorable question" to be resolved by the Colville tribal courts "[w]hether Colville Tribal law applies to a tort that involved certain acts committed on reservation land and other acts committed outside its territorial jurisdiction to induce another to perform a contract on tribal lands").
128. 520 U.S. 438, 453 (1997) (citation and internal quotation marks omitted).
129. A-1 Contractors v. Strate, Civ. No. A1-92-24, 1992 WL 696330, at 1 (D.N.D. Sept. 16, 1992).
130. Strate, 520 U.S. at 443.
131. See A-1 Contractors v. Strate, 76 F.3d 930, 932 (8th Cir. 1996) (en banc). The record was apparently not clear about whether A-1 was performing work on the contract at the time of the accident. See id. at 932-33 n.1.
132. See Strate, 1992 WL 696330, at 1.
133. Strate, 76 F.3d at 935.
134. Strate, 520 U.S. 438, 453 (1997).
135. See id. at 456-57 (quoting Montana v. United States, 450 U.S. 544, 565 (1981)).
136. Id. at 457 (citing Montana, 450 U.S. at 566).
137. See Smith v. Salish Kootenai Coll., 434 F.3d 1127, 1138 (9th Cir. 2006) (en banc).
138. See Strate, 520 U.S. at 457.
139. Notably, the Court ignored suggestions in the briefing that concepts of personal jurisdiction might be a useful analogy. The amicus brief submitted by the United States drew analogies between the tribe's assertion of jurisdiction and, respectively, purposeful availment and minimum contacts. See Brief for the United States as Amicus Curiae Supporting Petitioners at 15, Strate, 520 U.S. 428 (1997) (No. 95-1872) ("This case involves not just the Tribe's general authority to adjudicate claims of hazardous driving on reservation roads, but, more specifically, the Tribe's ability to adjudicate claims of hazardous driving by commercial enterprises that, like A-1, 'avail themselves of the substantial privilege of carrying on business on the reservation.'"); id. at 20 ("Like a State, an Indian Tribe has 'an especial interest' in exercising civil jurisdiction to deter and remedy wrongful conduct within its territory. That interest is particularly strong where, as here, both the perpetrators and the victims of the conduct at issue have close ties to the reservation and the tribal community.
140. Cf. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
141. By the mid-1990s, a majority of states used a choice-of-law rule other than "place of the injury" for torts, though it is true that if accident and conduct occur in the same state, most courts will follow that state's law as to conduct-regulation issues. See Symeon C. Symeonides, Choice of Law in the American Courts in 1996: Tenth Annual Survey, 45 AM. J. COMP. L. 447, 459 (1997) (noting that twelve states in 1996 retained the traditional approach, which includes a strict place of injury rule). Tribal courts, of course, are presumably free to adopt whatever choice-of-law principles they wish.
142. The Eighth Circuit en banc opinion reasoned along these lines, concluding that: If the tribal court tried this suit, it essentially would be acting in both an adjudicatory capacity and a regulatory capacity. At oral argument, all of the parties agreed that if the tribal court tried this case, it would have the power to decide what substantive law applies. Essentially, the tribal court would define the legal relationship and the respective duties of the parties on reservation roads and highways. Thus, while adjudicating the dispute, the tribal court also would be regulating the legal conduct of drivers on the roads and highways that traverse the reservation. Accordingly, we see no basis in this case for applying the regulatory-adjudicatory distinction the appellees have proposed. See A-1 Contractors v. Strate, 76 F.3d 930, 938 (8th Cir. 1996) (en banc). This reasoning, however, is at odds with actual practice in the state (and to some extent the international) context. States are permitted to regulate the conduct of outsiders more broadly when they do so through their courts (i.e., when their courts apply forum law to a dispute involving out-of-staters) than when their legislatures directly regulate such conduct. See supra Part I.C. Had the court applied a similar framework to the tribal context, it might have found support for allowing tribal courts to apply tribal law to a nonmember defendant even where a direct regulation of a nonmember in such circumstances would violate Montana.
143. A-1 Contractors v. Strate, 520 U.S. at 445 n.4 (1997).
144. It is notable that the very term "adjudicative jurisdiction" is more or less unique to the tribal context. The standard term is "judicial jurisdiction." The Supreme Court has used the term "judicial jurisdiction" in fifty-three cases in a variety of contexts, including several times in run-of-themill personal jurisdiction cases. See, e.g., Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 776 (1984) (noting, in discussing whether personal jurisdiction existed over defendant, that "'[a] state has an especial interest in exercising judicial jurisdiction over those who commit torts within its territory'")
145. (quoting Leeper v. Leeper, 114 N.H. 294, 298 (1974)). The Court has used the term "adjudicative jurisdiction" in only six cases, five of them cases discussing Indian country. The only time the Court has used that term outside the Indian law context is in Justice Scalia's dissent in Hartford Fire Insurance Co. v. California, in which he used the terms "judicial jurisdiction" and "adjudicative jurisdiction" interchangeably.
146. See 509 U.S. 764, 820 (1993) (Scalia, J., dissenting). It is hard to know what to make of the Court's decision to eschew the more prevalent term "judicial jurisdiction" in talking about what is undeniably the same concept; whatever the Court's intent, however, its use of the more unconventional "adjudicative jurisdiction" draws attention to the distinctiveness of the tribal context and the inapplicability of more conventional jurisdictional norms.
147. 533 U.S. 353 (2001).
148. See Strate, 520 U.S. 438, 454 (1997) (suggesting that "tribes retain considerable control over nonmember conduct on tribal land" but treating the land at issue "equivalent . . . to alienated, non- Indian land").
149. See, e.g., Daan Braveman, Tribal Sovereignty: Them and Us, 82 OR. L. REV. 75, 95 (2003) (noting that Hicks can be read as limiting tribal authority only when defendants are state officials). The Court itself described the question before it as "whether a tribal court may assert jurisdiction over civil claims against state officials who entered tribal land to execute a search warrant against a tribe member suspected of having violated state law outside the reservation."
150. Hicks, 533 U.S. at 355.
151. See, e.g., Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802, 813 (9th Cir. 2011) (holding that "Hicks is best understood as the narrow decision it explicitly claims to be" and that Montana does not apply to tribal land).
152. But see Dolgen Corp. v. Miss. Band of Choctaw Indians, No. 4:08CV22TSL-JCS, 2008 WL 5381906, at 2 n.1 (S.D. Miss. Dec. 19, 2008) (suggesting that subsequent case law mandates that Hicks be understood as holding that "Montana applies to Indian and non-Indian land alike").
153. Hicks, 533 U.S. at 358 (emphasis added).
154. See Hicks, 533 U.S. at 368 n.8 (2001).
155. See, e.g., Peter Hay, Judicial Jurisdiction and Choice of Law: Constitutional Limitations, 59 U. COLO. L. REV. 9, 9 (1988) (arguing against "congruent" constitutional limitations on "long-arm adjudicatory jurisdiction and for legislative jurisdiction");
156. ARTHUR TAYLOR VON MEHREN, THEORY AND PRACTICE OF ADJUDICATORY AUTHORITY IN PRIVATE INTERNATIONAL LAW 36-37 (2003).
157. Hicks is the Court's last major pronouncement on the subject of tribal court jurisdiction. A subsequent case, Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008), reiterates and expands the limits on tribal regulation of nonmembers, though it does not concern the activities of tribal courts per se.
158. See, e.g., Attorney's Process & Investigation Servs. v. Sac & Fox Tribe, 609 F.3d 927, 937 (8th Cir. 2010) ("Each claim must be analyzed individually in terms of the Montana principles to determine whether the tribal court has subject matter jurisdiction over it.");
159. Houle v. Cent. Power Elec. Coop., No. 4:09-cv-021, 2011 WL 1464918, at 31 (D.N.D. March 24, 2011) (noting that "a tribal court's subject matter jurisdiction cannot exceed the legislative jurisdiction of the tribe");
160. Ford Motor Co. v. Todecheene, 221 F. Supp. 2d 1070, 1075 (D. Ariz. 2002) (considering "whether a tribal court has the power to exercise civil-subject matter jurisdiction over non-Indians").
161. See Water Wheel Camp Recreational Area v. LaRance, 642 F.3d 802, 810 (9th Cir. 2011) (discussing the "explicitly narrow nature of the question considered in Hicks").
162. 434 F.3d 1127, 1129 (9th Cir. 2006) (en banc).
163. For this reason, the court suggested, concurrent jurisdiction would exist in tribal and state courts. See Smith, 434 F.3d at 1140 n.6.
164. This is generally the case, for example, in the context of personal jurisdiction and sovereign immunity. Many states hold that a defendant waives objections to personal jurisdiction by making a general appearance, which entails "participat[ing] in the action in a manner which recognizes the court's jurisdiction." See, e.g., State Farm Gen. Ins. Co. v. JT's Frames, Inc., 181 Cal. App. 4th 439, 441 (2010) (citing this principle as an "essential rule"). In federal court, the issue of waiver is governed by Federal Rule of Civil Procedure 12, under which a defendant who files a responsive pleading without objecting to personal jurisdiction waives any personal jurisdiction argument.
165. See FED. R. CIV. P. 12(h)(1)-(2). Similarly, in the sovereign immunity context, a state may waive sovereign immunity through its own litigation conduct, such as removing a case from state to federal court.
166. See Lapides v. Bd. of Regents of Univ. Syst. of Ga., 535 U.S. 613, 616 (2002).
167. Smith, 434 F.3d. at 1136.
168. See Montana v. United States, 450 U.S. 544, 565 (1981).
169. See, e.g., Strate v. A-1 Contractors, 520 U.S. 438, 457 (1997) (holding that consensual relationship exception did not apply where defendant was a party to a subcontract to be performed on the reservation, but dispute did not arise directly out of that subcontract).
170. Smith, 434 F.3d at 1136.
171. See Smith, 434 F.3d. at 1136 (majority opinion) (noting some similarities between the case at hand and the Montana exceptions, even while acknowledging that neither exactly fit the circumstances).
172. See Smith, 434 F.3d at 1137 (noting that parties "may not confer [subject matter] jurisdiction . . . by stipulation") (citation and quotation marks omitted).
173. 642 F.3d 802, 805-06 (9th Cir. 2011).
174. See Winter King et al., Bridging the Divide: Water Wheel's New Tribal Jurisdiction Paradigm, 47 GONZ. L. REV. 723, 757-60 (2012).
175. See Water Wheel, 642 F.3d at 804-05 (describing the issue as one of tribes' "civil authority over non-Indians acting on tribal land").
176. See e.g., Smith v. Salish Kootenai Coll., 434 F.3d 1127, 1138 (9th Cir. 2006) (en banc).
177. See Matthew L.M. Fletcher, Tribal Consent, 8 STAN. J. C.R. & C.L. 45, 94-95 (2012) (discussing Court's extensive reliance on "implicit divestiture" doctrine to limit tribal sovereignty).
178. See Nevada v. Hicks, 533 U.S. 353, 367 n.8 (2001) (stating that the "limitation on jurisdiction over nonmembers pertains to subject-matter, rather than merely personal, jurisdiction").
179. See Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997) ("[A] tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction.").
180. See Montana v. United States, 450 U.S. 544, 564 (1981) (citation omitted).
181. See Nell Jessup Newton, Tribal Court Praxis: One Year in the Life of Twenty Indian Tribal Courts, 22 AM. INDIAN L. REV. 285, 351 (1998) (concluding from examination of tribal court decisions that "most tribal courts are largely indistinguishable in structure and process from state and federal courts").
182. See Strate v. A-1 Contractors, 520 U.S. 438, 443 (1997).
183. See Katherine C. Pearson, Departing from the Routine: Application of Indian Tribal Law Under the Federal Tort Claims Act, 32 ARIZ. ST. L.J. 695, 718 (2000) (noting that "frequently tribal law mirrors state law"); Newton, supra note 288 at 300-01 (noting that tribal courts often rely on state law to fill gaps in tribal codes). A study by Robert D. Cooter and Wolfgang Fikentscher found both differences and similarities between the law of tort and contract applied by several tribes and Anglo-American legal principles.
184. See Robert D. Cooter & Wolfgang Fikentscher, Indian Common Law: The Role of Custom in American Indian Tribal Courts (Part II of II), 46 AM. J. COMP. L. 509 (1998). For example, Cooter and Fikentscher found that some tribes do not adhere to the bargain theory of contract and emphasize remedies for breach of contract that are aimed at repairing relationships (such as specific performance as opposed to money damages). See id. at 547-49. On the other hand, the authors found, "[t]ribal traffic codes . . . look about the same on the reservation as off it" (though the authors speculated that enforcement of such codes by tribal juries might be influenced by distinctively tribal perspectives).
185. See id. at 552; see also Robert D. Cooter & Wolfgang Fikentscher, American Indian Law Codes: Pragmatic Law and Tribal Identity, 56 AM. J. COMP. L. 29 (2008) (examining the content of tribal codes and the ways in which tribal courts interpret such codes in practice).
186. See Nevada v. Hicks, 533 U.S. 353, 384 (2001) (Souter, J., concurring) (noting that "[t]ribal courts . . . differ from . . . one another").
187. See Max Minzner, Treating Tribes Differently: Civil Jurisdiction Inside and Outside Indian Country, 6 NEV. L.J. 89, 89 (2005) (noting differences among tribes and tribal courts);
188. see also Saikrishna Prakash, Against Tribal Fungibility, 89 CORNELL L. REV. 1069 (2004).
189. Id. Indeed, in many tribes, courts modeled on the Anglo-American example and traditional tribal dispute resolution processes exist side by side. See Ada Pecos Melton, Indigenous Justice Systems and Tribal Society, 79 JUDICATURE 126, 129 (1995) (noting that many tribes employ "combinations of family and community forums, traditional courts, quasi-modern courts, and modern tribal courts").
190. Notably, however, this does not imply such courts' inferiority. While the perception of bias is rampant, the evidence for pervasive bias by tribal courts is sparse. Aaron F. Arnold et al., State and Tribal Courts: Strategies for Bridging the Divide, 47 GONZ. L. REV. 801, 817-18 (2012) (noting that, while there is a "a widespread misperception among state court practitioners that tribal courts are biased against non-Indians," this is not borne out by objective evidence; even "investigations which began with apparent hostile intent have ended by stressing the strengths of tribal courts and noting their weaknesses stem from lack of funding and not pervasive bias") (quoting Newton, supra note 288, at 287-88).
191. See id.; Stacy L. Leeds, Cross-Jurisdictional Recognition and Enforcement of Judgments: A Tribal Court Perspective, 76 N.D. L. REV. 311, 345-46 (2000) (noting that New Mexico, Idaho, Maine, New York, and South Carolina give full faith and credit, at least in some circumstances, to tribal judgments).
192. See Strate v. A-1 Contractors, 520 U.S. 438 (1997). Strate, notably, was a dispute between nonmembers, although Fredericks, as the widow and mother of tribe members who resided on the reservation, obviously had deeper connections to the tribe than did the defendants.
193. See Williams v. Lee, 358 U.S. 217, 223 (1959).
194. See, e.g., Nevada v. Hicks, 533 U.S. 353, 358 (2001) (describing the question of tribal jurisdiction as resting on the issue of whether tribal courts may "regulate state wardens executing a search warrant for evidence of an off-reservation crime") (emphasis added).
195. See Hay, supra note 221, at 10 (noting that the "underlying concern" of personal jurisdiction doctrine is "fairness to the defendant"). A modest and partial exception to this general principle is in the reasonableness test, which the Court suggested in Asahi Metal can defeat personal jurisdiction even if minimum contacts are present. The reasonableness factors permit consideration of "the interests of the forum State, and the plaintiff's interest in obtaining relief" in determining whether an exercise of jurisdiction is reasonable. See Asahi Metal Indus. Co. v. Super. Ct., 480 U.S. 102, 113 (1987).
196. Strate v. A-1 Contractors, 520 U.S. 438, 459 (1997).
197. See Nevada v. Hicks, 533 U.S. 353, 384 (2001) (Souter, J., concurring).
198. The dissent in Smith ominously suggests that, for this reason, Williams may no longer be good law and that the characterization of tribal jurisdiction as "subject matter jurisdiction" should be understood to preclude tribal courts from exercising jurisdiction over nonmembers even when they voluntarily file as plaintiffs. See Smith v. Salish Kootenai Coll., 434 F.3d 1127, 1141-42, 1144 (9th Cir. 2006) (Gould, J., dissenting). This view seems clearly wrong, however, for two reasons. First, the Supreme Court has let the rule of Williams stand for more than fifty years, despite its frequent revisiting and narrowing of other aspects of tribal court jurisdiction. Second, in delineating the restrictions on tribal jurisdiction, the Court has focused heavily on the idea of consent. See id. at 1137 (majority opinion). It would be odd, to say the least, to allow tribal courts to assert jurisdiction based on the, at best, highly indirect consent of being a tribe member or entering into a contract with the tribe (as Montana permits), but to deny tribal jurisdiction where a plaintiff has deliberately opted for the tribal forum by filing suit there.
199. See Hicks, 533 U.S. at 367 n.8.
200. See Goodyear Dunlop Tires Operations v. Brown, 131 S. Ct. 2846, 2853-54 (2011).
201. See Burger King v. Rudzewicz, 471 U.S. 462, 474 (1985).
202. See Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 HARV. L. REV. 1559 (2002).
203. See Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 395 (1998) (Kennedy, J., concurring).
204. The minimum contacts standard is sometimes seen as an implicit bargain under which the defendant subjects himself to jurisdiction in return for reaping some benefits from his contacts with the forum. See, e.g., Burger King, 471 U.S. at 474. Although distinct from explicit or implicit consent, it nonetheless reflects an emphasis on the defendant's voluntary conduct and reasonable expectations, ideas that mirror the Court's emphasis on consent in tribal jurisdiction.
205. This concern surfaces explicitly only in the reasonableness test applied in Asahi Metal, which permits consideration of "the interests of the forum State." See Asahi Metal Indus. Co. v. Super. Ct., 480 U.S. 102, 113 (1987). More broadly, however, the minimum contacts test can be seen as permitting states a role in regulating the conduct of people who have reaped some benefits from their association with the state.
206. See Burger King, 471 U.S. at 474.
207. Notably, one commentator has also suggested that another fieldjurisdiction over divorcesthat has historically been conceived in idiosyncratic jurisdictional terms should be recharacterized in terms of mainstream minimum contacts principles. See Courtney G. Joslin, Modernizing Divorce Jurisdiction: Same-Sex Couples and Minimum Contacts, 91 B.U. L. REV. 1669 (2012).
208. See, e.g., Nevada v. Hicks, 533 U.S. 353, 371 (2001) (suggesting that tribal jurisdiction is central to tribal self-governance only when it is exercised over members rather than "outsiders").
209. See Smith v. Salish Kootenai Coll., 434 F.3d 1127, 1138 (9th Cir. 2006) (en banc) (noting similarities).
210. See Strate v. A-1 Contractors, 520 U.S. 438, 457 (1997) (finding defendants' contract with tribe to be irrelevant to consensual relationships exception in a noncontractual case).
211. See Goodyear Dunlop Tires Operations v. Brown, 131 S. Ct. 2846, 2854 (2011) (explaining the concept of purposeful availment and describing it as the "centerpiece" of modern personal jurisdiction doctrine).
212. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 206 (1978). As a historical and factual matter, the Court's description of this "presumption" has been widely criticized. See, e.g., Frickey, supra note 140, at 37-39 (noting that tribal criminal jurisdiction over nonmembers would not have interfered with congressional priorities, and that "[o]ne is left wondering whether there is anything more substantial than a judicial gut instinct" at work in Oliphant and other cases).
213. 25 U.S.C. § 1302(a)(8) (2010).
214. See Int'l Shoe Co. v. Washington, 326 U.S. 310, 319 (1945) ("Whether due process is satisfied must depend . . . upon the quality and nature of the activity [alleged to subject the defendant to jurisdiction].").
215. Commentators have suggested that the due process provisions of ICRA require tribal courts to conduct a personal jurisdiction analysis using a minimum contacts framework. See David A. Castleman, Personal Jurisdiction in Tribal Courts, 154 U. PA. L. REV. 1253, 1255 (2006). Further, tribal courts show "a willingness to apply federal due process precedent in interpreting their own jurisdictional statutes." See id. While Castleman argues that tribal courts must satisfy personal jurisdiction requirements in addition to the Montana rules, see id. at 1261, I argue that personal jurisdiction concepts should replace the Montana standards where the scope of tribal court jurisdiction is concerned.
216. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 61 (1978).
217. See id. Tribes, of course, can and do provide their own enforcement mechanisms. See Greg Rubio, Reclaiming Indian Civil Rights: The Application of International Human Rights Law to Tribal Disenrollment Actions, 11 OR. REV. INT'L L. 1, 38 (2009) ("Some tribes already ensure that plaintiffs bringing ICRA suits in tribal court enjoy a structure of available remedies consistent with that provided in federal or state courts.").
218. See Santa Clara Pueblo, 436 U.S. at 61.
219. The Court held in National Farmers that federal courts may review the propriety of tribal courts' exercise of jurisdiction following exhaustion of tribal remedies. See Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 856 (1985). In practice (as in Strate and Hicks) federal courts review the jurisdiction of tribal courts all the time. As a result, it is unlikely that simply substituting ICRA's due process framework for Montana's would result in a greater burden for the federal courts or pose a greater threat to tribal autonomy.
220. See, e.g., Karen Petroski, Statutory Genres: Substance, Procedure, Jurisdiction, 44 LOY. U. CHI. L.J. 189 (2012);
221. Scott Dodson, Hybridizing Jurisdiction, 99 CALIF. L. REV. 1439 (2011);
222. Scott Dodson, The Complexity of Jurisdictional Clarity, 97 VA. L. REV. 1 (2011);
223. Katherine Florey, Insufficiently Jurisdictional: The Case Against Treating State Sovereign Immunity as an Article III Doctrine, 92 CALIF. L. REV. 1375 (2004).
224. While the personal jurisdiction characterization of course potentially comes with its own baggage, subject matter jurisdiction is a particularly inflexible category; it must be raised by courts sua sponte, cannot be waived, and so forth. See, e.g., Kontrick v. Ryan, 540 U.S. 443, 456 (2004) ("Characteristically, a court's subject-matter jurisdiction cannot be expanded to account for the parties' litigation conduct.").
225. See, e.g., Nevada v. Hicks, 533 U.S. 353, 367 n.8 (2001) ("But Strate's limitation on jurisdiction over nonmembers pertains to subject-matter, rather than merely personal, jurisdiction, since it turns upon whether the actions at issue in the litigation are regulable by the tribe.").
226. See Hicks, 533 U.S. at 358-59 (suggesting the existence of a "general proposition" that "the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe" (citation and internal quotation marks omitted)).
227. See Hicks, 533 U.S. at 379 (Souter, J., concurring) ("[T]he exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes." (citation and internal quotation marks omitted)).
228. See Burnham v. Super. Ct., 495 U.S. 604, 610 (1990) (noting that "[a]mong the most firmly established principles of personal jurisdiction in American tradition is that the courts of a State have jurisdiction over nonresidents who are physically present in the State"). A similar history does not exist in Indian country, in part because a tribe's physical power over its territory has almost always been regarded as less absolute.
229. See Asahi Metal Indus. Co. v. Super. Ct., 480 U.S. 102, 114 (1987).
230. These concerns can easily be exaggerated; empirical studies suggest that tribal courts have generally dealt fairly with nonmember defendants. See generally Berger, supra note 32; Newton, supra note 288. Nonetheless, it is reasonable to conclude that at least the potential for unfairness exists in any situation when a defendant is haled into a distant or unfamiliar court. See Asahi Metal, 480 U.S. at 115-16 (discussing similar concerns as applied to international defendants who must appear in state court).
231. See Matthew L.M. Fletcher, Tribal Membership and Indian Nationhood, 37 AM. INDIAN L. REV. 1, 5 (2012) (noting that criteria for membership may be "comically arbitrary," permitting membership to someone who has never set foot on the reservation while denying it to an active and respected tribal leader). While tribal membership standards themselves may be criticized, in many cases they are strongly rooted historically and were developed with the assistance of the federal government. See id. at 2.
232. See Strate v. A-1 Contractors, 520 U.S. 438, 443 (1997).
233. See Smith v. Salish Kootenai Coll., 434 F.3d 1127, 1129 (9th Cir. 2006) (en banc).
234. See EXC, Inc. v. Jensen, No. CV 10-08197-PCT-JAT, 2012 WL 3264526, at 1 (D. Ariz. Aug. 9, 2012).
235. See Strate, 520 U.S. at 443.
236. See, e.g., Patrick J. Borchers, The Death of the Constitutional Law of Personal Jurisdiction: From Pennoyer to Burnham and Back Again, 24 U.C. DAVIS L. REV. 19, 54 (1990) (noting that "International Shoe has been widely heralded as the great 'liberator' of personal jurisdiction from the formalisms of Pennoyer").
237. See Strate, 520 U.S. at 454.
238. See, e.g., Burger King v. Rudzewicz, 471 U.S. 462, 475 (1985) (suggesting that a defendant who has "avail[ed] itself of the privilege of conducting activities within the forum State" may fairly be held to account for its activities there in the forum's courts).
239. See Sarah Krakoff, Tribal Civil Jurisdiction over Nonmembers: A Practical Guide for Judges, 81 U. COLO. L. REV. 1187, 1230 (2010).
240. See Asahi Metal Indus. Co. v. Super. Ct., 480 U.S. 102, 114 (1987) (noting similar concerns in the international context).
241. See Asahi Metal, 480 U.S. at 114-15.
242. See J. McIntyre Mach. v. Nicastro, 131 S. Ct. 2780, 2794 (2011) (Breyer, J., concurring).
243. See supra note 83 (noting variety in state choice-of-law rules); Symposium, The Restyled Federal Rules of Evidence, 53 WM. & MARY L. REV. 1435, 1513 (2012) (noting differences across states in rules of evidence).
244. See Amanda Frost & Stefanie A. Lindquist, Countering the Majoritarian Difficulty, 96 VA. L. REV. 719, 723 (2010).
245. Congress has expanded tribal criminal jurisdiction significantly three times in recent years: through the so-called Duro fix of 1990-91, 25 U.S.C. § 1301(2), clarifying Congress's understanding that tribal criminal jurisdiction extended to nonmember Indians; the 2010 Tribal Law and Order Act, which both extended tribal criminal powers and provided additional federal support for tribal justice systems; and the 2013 amendments to the Violence Against Women Act, which permits tribal courts to prosecute non-Indians for domestic and sexual abuse.
246. See Tribal Law and Order Act, Pub. L. No. 111-211 § 201 (2010);
247. Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4.