The shrinking sovereign: Tribal adjudicatory jurisdiction over nonmembers in civil cases

Columbia Law Review

Volumn 114, Issue 7, 2014, Pages 1825-1860

  Miller, M Gatsby ^a  

^a Columbia Law School ^*  (United States)

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EID: 84910662896     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (234)

1. See Nell Jessup Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195, 281 (1984) (describing Public Law 280, which "authorized states to assume criminal and civil jurisdiction over the Indian reservations …with or without the consent of the tribes involved").
2. United States v. S. Ute Tribe or Band of Indians, 402 U.S. 159, 163 (1971) (noting purpose of federal law in question was "to destroy the tribal structure and to change the nomadic ways of the Utes by forcibly converting them from a pastoral to an agricultural people").
3. See John P. LaVelle, Implicit Divestiture Reconsidered: Outtakes from the Cohen's Handbook Cutting-Room Floor, 38 Conn. L. Rev. 731, 732 (2006) [hereinafter LaVelle, Divestiture] ("[T]he Supreme Court has [decided] a series of cases imposing additional limitations on tribal authority by means of …judicially crafted theory ….").
4. "Nonmember" means any individual who is not a recognized member of the tribe that is attempting to exercise jurisdiction over that individual. See Duro v. Reina, 495 U.S. 676, 686 (1990).
5. United States v. Lara, 541 U.S. 193 (2004).
6. Montana v. United States, 450 U.S. 544, 565 (1981) ("A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.").
7. Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408, 431 (1989).
8. See Cohen's Handbook of Federal Indian Law § 7.01 (Nell Jessup Newton ed., 2012) [hereinafter Cohen's Handbook] (defining "adjudicatory" and "legislative jurisdiction").
9. Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997) ("[A] tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction.").
10. See Cohen's Handbook of Federal Indian Law § 7.01 (Nell Jessup Newton ed., 2012) [hereinafter Cohen's Handbook] (defining "adjudicatory" and "legislative jurisdiction").
11. See, e.g., Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 19 (1987) ("Unless a federal court determines that the Tribal Court lacked jurisdiction, however, proper deference to the tribal court system precludes relitigation of issues raised …and resolved in the Tribal Courts.").
12. Cf. Philip Morris USA, Inc. v. King Mountain Tobacco Co., 569 F.3d 932, 939 (9th Cir. 2009) (noting Supreme Court "le[ft] open whether tribes' adjudicative jurisdiction over nonmembers is narrower than the legislative jurisdiction").
13. 450 U.S. 544, 564 (1981).
14. Strate v. A-1 Contractors, 520 U.S. 438, 446 (1997).
15. 520 U.S. 438 (1997).
16. This Note uses the terms "legislative" and "regulatory" interchangeably when discussing tribal jurisdiction, as does much of the literature. E.g., Laurie Reynolds, "Jurisdiction" in Federal Indian Law: Confusion, Contradiction, and Supreme Court Precedent, 27 N.M. L. Rev. 359 (1997) (using terms "legislative jurisdiction" and "regulatory jurisdiction" interchangeably).
17. United States v. Wheeler, 435 U.S. 313, 323 (1978).
18. United States v. Mazurie, 419 U.S. 544, 557 (1975).
19. See Cohen's Handbook of Federal Indian Law § 7.01 (Nell Jessup Newton ed., 2012) [hereinafter Cohen's Handbook] (defining "adjudicatory" and "legislative jurisdiction").
20. Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 168 (1982) ("Tribal sovereignty is neither derived from nor protected by the Constitution.").
21. See, e.g., McFarland v. McFarland, 19 S.E.2d 77, 82 (Va. 1942) ("The several States of the United States, except as prescribed otherwise by the Federal Constitution, bear a relationship to each other of independent sovereigns, each having exclusive sovereignty and power over persons and property within its jurisdiction.").
22. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). Note that this language contradicts the "independent sovereign" language recognized by the Court in other decisions.
23. Talton v. Mayes, 163 U.S. 376, 383 (1896) ("The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights.").
24. See Cohen's Handbook of Federal Indian Law § 7.01 (Nell Jessup Newton ed., 2012) [hereinafter Cohen's Handbook] (defining "adjudicatory" and "legislative jurisdiction").
25. William C. Canby, Jr., American Indian Law in a Nutshell 148 (5th ed. 2009).
26. See Cohen's Handbook of Federal Indian Law § 7.01 (Nell Jessup Newton ed., 2012) [hereinafter Cohen's Handbook] (defining "adjudicatory" and "legislative jurisdiction").
27. 32 Journals of the Continental Congress 1774-1789, at 340-41 (Roscoe R. Hill ed., 1936) (indicating U.S. government also reserved power to regulate by "laws founded in justice and humanity" in order to "prevent[] wrongs being done to [the Indians]" and "preserv[e] peace and friendship with them").
28. See Cohen's Handbook of Federal Indian Law § 7.01 (Nell Jessup Newton ed., 2012) [hereinafter Cohen's Handbook] (defining "adjudicatory" and "legislative jurisdiction").
29. See Vine Deloria Jr. & David E. Wilkins, Tribes, Treaties, and Constitutional Tribulations 28 (1999) (discussing sending of agents of agents and treaty commissioners to deal with tribes).
30. See Cohen's Handbook of Federal Indian Law § 7.01 (Nell Jessup Newton ed., 2012) [hereinafter Cohen's Handbook] (defining "adjudicatory" and "legislative jurisdiction").
31. See Vine Deloria Jr. & David E. Wilkins, Tribes, Treaties, and Constitutional Tribulations 28 (1999) (discussing sending of agents of agents and treaty commissioners to deal with tribes).
32. In addition, the federal government began to "carv[e] up reservation lands into individual homesteads, allotting some to tribal members and opening up the remainder for disposal to railroads and non-Indian settlement." Sarah Krakoff, Tribal Civil Judicial Jurisdiction over Nonmembers: A Practical Guide for Judges, 81 U. Colo. L. Rev. 1187, 1198 (2010).
33. See Cohen's Handbook of Federal Indian Law § 7.01 (Nell Jessup Newton ed., 2012) [hereinafter Cohen's Handbook] (defining "adjudicatory" and "legislative jurisdiction").
34. See Act of Mar. 3, 1885, ch. 341, § 9, 23 Stat. 362, 385 (codified as amended at 18 U.S.C. § 1153 (2012)) (providing for jurisdiction over "murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny" committed by Indians).
35. 118 U.S. 375, 384-85 (1886).
36. See Cohen's Handbook of Federal Indian Law § 7.01 (Nell Jessup Newton ed., 2012) [hereinafter Cohen's Handbook] (defining "adjudicatory" and "legislative jurisdiction").
37. See Nancy Thorington, Civil and Criminal Jurisdiction over Matters Arising in Indian Country: A Roadmap for Improving Interaction Among Tribal, State and Federal Governments, 31 McGeorge L. Rev. 973, 985 (2000) (describing passage of law "requiring tribal consent before states could assume …jurisdiction over Indian country after 1968").
38. William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 373-74 (1990) (describing change in support for Termination).
39. See Special Message to the Congress on the Problems of the American Indian: "The Forgotten American," 1 Pub. Papers 335, 336 (Mar. 6, 1968), available at http://www.presidency.ucsb.edu/ws/?pid=28709 (on file with the Columbia Law Review) ("I propose a new goal for our Indian programs: A goal that ends the old debate about 'termination' of Indian programs and stresses self-determination; a goal that erases old attitudes of paternalism and promotes partnership self-help." (quoting President Lyndon B. Johnson)).
40. 25 U.S.C. §§ 1301-1304.
41. Ryan Dreveskracht, Tribal Court Jurisdiction and Native Nation Economies: A Trip Down the Rabbit Hole, 67 Nat'l Law. Guild Rev. 65, 69 (2010) ("The only solution [to tribal jurisdiction over nonmembers] has been to divest tribal courts of jurisdiction, and this is exactly what the Supreme Court has been doing.").
42. Compare U.S. Const. amend. XIV, § 1 ("No State shall …deprive any person of life, liberty, or property, without due process of law …." (emphasis added)), with 25 U.S.C. § 1302(a)(8) ("No Indian tribe shall …deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law." (emphasis added)).
43. Interestingly, the legislative history of the bill only addresses, and specifically targets, the rights of Indians in tribal courts. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 69 n.28 (1978).
44. Ryan Dreveskracht, Tribal Court Jurisdiction and Native Nation Economies: A Trip Down the Rabbit Hole, 67 Nat'l Law. Guild Rev. 65, 69 (2010) ("The only solution [to tribal jurisdiction over nonmembers] has been to divest tribal courts of jurisdiction, and this is exactly what the Supreme Court has been doing.").
45. See Special Message to the Congress on the Problems of the American Indian: "The Forgotten American," 1 Pub. Papers 335, 336 (Mar. 6, 1968), available at http://www.presidency.ucsb.edu/ws/?pid=28709 (on file with the Columbia Law Review) ("I propose a new goal for our Indian programs: A goal that ends the old debate about 'termination' of Indian programs and stresses self-determination; a goal that erases old attitudes of paternalism and promotes partnership self-help." (quoting President Lyndon B. Johnson)).
46. See John P. LaVelle, Implicit Divestiture Reconsidered: Outtakes from the Cohen's Handbook Cutting-Room Floor, 38 Conn. L. Rev. 731, 732 (2006) [hereinafter LaVelle, Divestiture] ("[T]he Supreme Court has [decided] a series of cases imposing additional limitations on tribal authority by means of …judicially crafted theory ….").
47. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195 (1978).
48. 495 U.S. 676, 684 (1990).
49. United States v. Lara, 541 U.S. 193 (2004).
50. Act of Oct. 28, 1991 § 1.
51. William C. Canby, Jr., American Indian Law in a Nutshell 148 (5th ed. 2009).
52. See Press Release, DOJ, Justice Department Announces Three Tribes to Implement Special Domestic Violence Criminal Jurisdiction Under VAWA 2013 (Feb. 6, 2014), http://www.justice.gov/opa/pr/2014/February/14-ag-126.html (on file with the Columbia Law Review). This action has not been challenged in court.
53. 450 U.S. 544, 564 (1981).
54. Strate v. A-1 Contractors, 520 U.S. 438, 446 (1997).
55. Montana, 450 U.S. at 565-66.
56. Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408, 431 (1989) (discussing Montana).
57. 471 U.S. 845, 852-53 (1985).
58. 480 U.S. 9, 18 (1987). The Court further stressed tribal ownership of the land as an important factor in finding tribal jurisdiction over nonmember actions on tribal lands.
59. 520 U.S. 438 (1997).
60. The exhaustion rule, generally, requires that "defendants in tribal court actions must exhaust available tribal court remedies before proceeding with a parallel action in federal court." Timothy W. Joranko, Exhaustion of Tribal Remedies in the Lower Courts After National Farmers Union and Iowa Mutual : Toward a Consistent Treatment of Tribal Courts by the Federal Judicial System, 78 Minn. L. Rev. 259, 259 (1993) (footnote omitted).
61. Strate, 520 U.S. at 459 ("The Montana rule, therefore, and not its exceptions, applies to this case.").
62. Iowa Mutual, 480 U.S. at 10.
63. 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 535, 537 (Carol Goldberg et al. eds., 2011) [hereinafter LaVelle, Retreat] (calling Montana "one of the most important and controversial Indian law decisions ever announced by the Supreme Court").
64. See David H. Getches et al., Cases and Materials on Federal Indian Law 531 (6th ed. 2011) (noting Supreme Court has never upheld jurisdiction under a Montana exception and lower courts rarely do so).
65. 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 535, 537 (Carol Goldberg et al. eds., 2011) [hereinafter LaVelle, Retreat] (calling Montana "one of the most important and controversial Indian law decisions ever announced by the Supreme Court").
66. Atkinson Trading Co. v. Shirley, 532 U.S. 645, 655 (2001).
67. Montana v. United States, 450 U.S. 544, 565 (1981).
68. Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 341 (2008).
69. See Cohen's Handbook of Federal Indian Law § 7.01 (Nell Jessup Newton ed., 2012) [hereinafter Cohen's Handbook] (defining "adjudicatory" and "legislative jurisdiction").
70. Bugenig v. Hoopa Valley Tribe, 229 F.3d 1210, 1223 (9th Cir. 2000)
71. Cheromiah v. United States, 55 F. Supp. 2d 1295, 1305 (D.N.M. 1999)
72. LaFromboise v. Leavitt, 439 F.3d 792, 794 (8th Cir. 2006).
73. Stephen L. Pevar, The Rights of Indians and Tribes 155 (4th ed. 2012) (providing additional examples).
74. Strate, 520 U.S. at 453.
75. Cf. Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408, 431 (1989) (concluding federal-court proceedings should be stayed pending resolution in tribal court). Finding tribal jurisdiction over a nonmember under Montana only permits jurisdiction over issues that have a direct nexus with the activity that permitted a finding of jurisdiction-a finding of jurisdiction under Montana does not then permit general exercises of jurisdiction.
76. See Atkinson, 532 U.S. at 659 (noting precedent "precludes extension of tribal civil authority beyond these limits").
77. Hicks, 533 U.S. at 358 ("[This] leaves open the question whether a tribe's adjudicative jurisdiction over nonmember defendants equals its legislative jurisdiction.").
78. Plains Commerce Bank, 554 U.S. at 330 (discussing Strate, but not addressing relationship between adjudicatory and regulatory power).
79. 533 U.S. at 358.
80. 554 U.S. at 330 (emphasis added).
81. See Cohen's Handbook of Federal Indian Law § 7.01 (Nell Jessup Newton ed., 2012) [hereinafter Cohen's Handbook] (defining "adjudicatory" and "legislative jurisdiction").
82. Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 19 (1987)
83. Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 851-52 (1985).
84. Drumm v. Brown, 716 A.2d 50, 54 (Conn. 1998)
85. Lemke ex rel. Teta v. Brooks, 614 N.W.2d 242, 245 (Minn. Ct. App. 2000)
86. Michael Minnis & Assocs., P.C. v. Kaw Nation, 90 P.3d 1009, 1014 (Okla. Civ. App. 2003).
87. See Cohen's Handbook of Federal Indian Law § 7.01 (Nell Jessup Newton ed., 2012) [hereinafter Cohen's Handbook] (defining "adjudicatory" and "legislative jurisdiction").
88. See, e.g., Katherine J. Florey, Indian Country's Borders: Territoriality, Immunity, and the Construction of Tribal Sovereignty, 51 B.C. L. Rev. 595, 645 (2010) (noting concerns about bias "may be subject to criticisms …, [but] it is nonetheless likely that the problem …is to some extent real").
89. See, e.g., Frank Pommersheim, "Our Federalism" in the Context of Federal Courts and Tribal Courts: An Open Letter to the Federal Courts' Teaching and Scholarly Community, 71 U. Colo. L. Rev. 123, 163 (2000).
90. Strate v. A-1 Contractors, 520 U.S. 438, 459 (1997).
91. See, e.g., Dolgencorp, Inc. v. Miss. Band of Choctaw Indians, 732 F.3d, 421 (5th Cir. 2013) (Smith, J., dissenting) (expressing concern about lack of Fourteenth Amendment protections in tribal courts).
92. Greywater v. Joshua, 846 F.2d 486, 489 (8th Cir. 1988) (raising fairness concerns about jury exclusively composed of Sioux Indians determining nonmember claims).
93. Aaron F. Arnold et al., State and Tribal Courts: Strategies for Bridging the Divide, 47 Gonz. L. Rev. 801, 817 (2011) ("There [is] …a widespread misperception among state court practitioners that tribal courts are biased against non-Indians …. [T]his view reaches the highest levels of government.").
94. Jesse Sixkiller, Note, Procedural Fairness: Ensuring Tribal Civil Jurisdiction After Plains Commerce Bank, 26 Ariz. J. Int'l & Comp. L. 779, 802 (2009) (arguing Supreme Court limitation on tribal jurisdiction results from due process concerns).
95. See, e.g., Peter Nicolas, American-Style Justice in No Man's Land, 36 Ga. L. Rev. 895, 969 (2002) ("[T]he Supreme Court has been very active in taking measures to protect non-Indian parties from the threat of bias in tribal courts.").
96. See David H. Getches et al., Cases and Materials on Federal Indian Law 531 (6th ed. 2011) (noting Supreme Court has never upheld jurisdiction under a Montana exception and lower courts rarely do so).
97. 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 535, 537 (Carol Goldberg et al. eds., 2011) [hereinafter LaVelle, Retreat] (calling Montana "one of the most important and controversial Indian law decisions ever announced by the Supreme Court").
98. See, e.g., Bethany R. Berger, Justice and the Outsider: Jurisdiction over Nonmembers in Tribal Legal Systems, 37 Ariz. St. L.J. 1047, 1094 (2005) ("The data regarding the experience of nonmembers in the Navajo courts do not support the assumption of the United States Supreme Court that nonmembers will be at a disadvantage in tribal courts.").
99. Mark D. Rosen, Multiple Authoritative Interpreters of Quasi-Constitutional Federal Law: Of Tribal Courts and the Indian Civil Rights Act, 69 Fordham L. Rev. 479, 573-78 (2000) (conducting broad review of decisions in Indian courts and concluding majority of cases free of bias against nonmembers).
100. Mark D. Rosen, Multiple Authoritative Interpreters of Quasi-Constitutional Federal Law: Of Tribal Courts and the Indian Civil Rights Act, 69 Fordham L. Rev. 479, 573-78 (2000) (conducting broad review of decisions in Indian courts and concluding majority of cases free of bias against nonmembers).
101. See David H. Getches et al., Cases and Materials on Federal Indian Law 531 (6th ed. 2011) (noting Supreme Court has never upheld jurisdiction under a Montana exception and lower courts rarely do so).
102. Philip J. Weiser, Federal Common Law, Cooperative Federalism, and the Enforcement of the Telecom Act, 76 N.Y.U. L. Rev. 1692, 1696 (2001)
103. Clare Boronow, Note, Closing the Accountability Gap for Indian Tribes: Balancing the Right to Self-Determination with the Right to a Remedy, 98 Va. L. Rev. 1373, 1390-97 (2012) (discussing multiple instances of civil and human rights violations committed by tribes for which tribes denied all remedies).
104. See Cohen's Handbook of Federal Indian Law § 7.01 (Nell Jessup Newton ed., 2012) [hereinafter Cohen's Handbook] (defining "adjudicatory" and "legislative jurisdiction").
105. Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 79 Fed. Reg. 4748, 4748-53 (Jan. 29, 2014). Saying that the bias or lack thereof of one tribe is necessarily relevant to assessing the bias of another tribe assumes that tribes are interchangeable and similarly situated, which seems unlikely among 566 different entities.
106. Cf. United States v. Lara, 541 U.S. 193, 212 (2004) (Kennedy, J., concurring) ("To hold that Congress can subject [a nonmember], within our domestic borders, to a sovereignty outside the basic structure of the Constitution is a serious step …. [It] is unprecedented.").
107. Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 Harv. L. Rev. 433, 459 (2005) [hereinafter Frickey, Exceptionalism] (noting Strate Court "was concerned about a nonmember defendant being relegated to an unfair, foreign forum"). Also, tribal courts are notably underfunded, which may give rise to additional due process concerns.
108. Tribal Law Journal, Univ. of N.M. Sch. of Law, Tribal Court Handbook: Pueblo of Jemez Tribal Court 8, 10 (2010), available at http://lawschool.unm.edu/tlj/handbook/ pdfs/Jemez2010.pdf (on file with the Columbia Law Review) (providing questionnaire for Pueblo of Jemez tribe, which indicated lack of written opinions and inaccessibility of tribal laws to nonmembers).
109. See Max Minzner, Treating Tribes Differently: Civil Jurisdiction Inside and Outside Indian Country, 6 Nev. L.J. 89, 104 (2005) ("In [tribal] courts, custom often trumps other sources of decisional law, including statutes and federal law, …dissimilar to the use of common law in state courts. In these types of courts, there is some reason to believe that non-members …lack[] a level playing field.").
110. Pat Sekaquaptewa, Key Concepts in the Finding, Definition and Consideration of Custom Law in Tribal Lawmaking, 32 Am. Indian L. Rev. 319, 334-46 (2008) (discussing case in which judge had to call over ten witnesses to help decide character and applicability of oral custom in land dispute).
111. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, 1031 (Can.) (admitting oral tradition regarding land ownership as evidence in Canadian court).
112. Tribal Law Journal, Univ. of N.M. Sch. of Law, Tribal Court Handbook: Pueblo of Jemez Tribal Court 8, 10 (2010), available at http://lawschool.unm.edu/tlj/handbook/ pdfs/Jemez2010.pdf (on file with the Columbia Law Review) (providing questionnaire for Pueblo of Jemez tribe, which indicated lack of written opinions and inaccessibility of tribal laws to nonmembers).
113. Tribal Law Journal, Univ. of N.M. Sch. of Law, Tribal Court Handbook: Pueblo of Jemez Tribal Court 8, 10 (2010), available at http://lawschool.unm.edu/tlj/handbook/ pdfs/Jemez2010.pdf (on file with the Columbia Law Review) (providing questionnaire for Pueblo of Jemez tribe, which indicated lack of written opinions and inaccessibility of tribal laws to nonmembers).
114. State ex rel. Peterson v. Dist. Court of Ninth Judicial Dist., 617 P.2d 1056, 1070- 71 (Wyo. 1980) (Raper, C.J., concurring) (discussing "[m]any of [the] internal problems" of tribal court that raised concerns about nonmember rights).
115. Stephen L. Pevar, The Rights of Indians and Tribes 155 (4th ed. 2012) (providing additional examples).
116. Dale Beck Furnish, Sorting Out Civil Jurisdiction in Indian Country After Plains Commerce Bank: State Courts and the Judicial Sovereignty of the Navajo Nation, 33 Am. Indian L. Rev. 385, 389-92 (2009) (describing extent and sophistication of Navajo tribal courts).
117. See, e.g., Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 19 (1987) ("Unless a federal court determines that the Tribal Court lacked jurisdiction, however, proper deference to the tribal court system precludes relitigation of issues raised …and resolved in the Tribal Courts.").
118. The narrowing of ICRA, 25 U.S.C. §§ 1301-1304 (2012).
119. Ryan Dreveskracht, Tribal Court Jurisdiction and Native Nation Economies: A Trip Down the Rabbit Hole, 67 Nat'l Law. Guild Rev. 65, 69 (2010) ("The only solution [to tribal jurisdiction over nonmembers] has been to divest tribal courts of jurisdiction, and this is exactly what the Supreme Court has been doing.").
120. Stephen L. Pevar, The Rights of Indians and Tribes 155 (4th ed. 2012) (providing additional examples).
121. See, e.g., Dry Creek Lodge, Inc. v. United States, 515 F.2d 926, 932-35 (10th Cir. 1975) (holding ICRA provided right of action against Indian tribes for violations of rights created by ICRA that were substantively similar to Bill of Rights).
122. However, in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 61-62 (1978), the Supreme Court held that tribal sovereign immunity barred suits against tribes under ICRA and also held that the only viable private right of action under ICRA was a habeas petition by individuals detained under the authority of a tribe. This holding effectively insulated tribes from federal oversight in federal courts and left tribal courts as the only enforcers of ICRA.
123. Cf. Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 885 (2d Cir. 1996) ("[F]ederal enforcement of the substantive provisions of [ICRA] is limited to those cases in which the remedy sought is a writ of habeas corpus.").
124. Blake A. Watson, The Curious Case of Disappearing Federal Jurisdiction over Federal Enforcement of Federal Law: A Vehicle for Reassessment of the Tribal Exhaustion/Abstention Doctrine, 80 Marq. L. Rev. 531, 602 (1997) ("[T]here is (at present) no possibility of Supreme Court review of tribal court decisions-even when tribal courts construe (or invalidate) federal statutes.").
125. Fox Film Corp. v. Muller, 296 U.S. 207, 210-11 (1935)
126. Eric B. Schnurer, The Inadequate and Dependent "Adequate and Independent State Grounds" Doctrine, 18 Hastings Const. L.Q. 371, 375- 76 (1991) (discussing potential reasons for prudential and jurisdictional view of adequate and independent state grounds).
127. Cf. Katherine Florey, Beyond Uniqueness: Reimagining Tribal Courts' Jurisdiction, 101 Calif. L. Rev. 1499, 1557 (2013) [hereinafter Florey, Uniqueness] ("[S]pecifically in the area of tribal judicial powers …reasonable concerns about fairness, bias, and unfair surprise exist when nonmembers, particularly those only marginally connected with the tribe, are haled into tribal courts as defendants.").
128. United States v. Wheeler, 435 U.S. 313, 322-23 (1978).
129. See, e.g., Robert T. Anderson, Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280, 87 Wash. L. Rev. 915, 956-58 (2012) (calling for tribally controlled restoration of tribal jurisdiction).
130. Cf. Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1, 23 (2002) ("[U]nder international law principles, a sovereign's jurisdiction to legally regulate conduct was coterminous with its territory.").
131. Colin S. Diver, Statutory Interpretation in the Administrative State, 133 U. Pa. L. Rev. 549, 582 (1985) ("Statutory interpretation, like any form of literary interpretation, is unavoidably an act of creating meaning.").
132. Black's Law Dictionary 1523 (9th ed. 2009) (defining "sovereign").
133. See Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 856 (1985) ("Our cases have often recognized that Congress is committed to a policy of supporting tribal self-government and self-determination.").
134. Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 16 (1987).
135. See Basil Cook Enters., Inc. v. St. Regis Mohawk Tribe, 117 F.3d 61, 66 (2d Cir. 1997) ("Federal courts, as a general matter, lack competence to decide matters of tribal law ….").
136. Cf. 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, 1689 (2006) ("Commentators have worried, first, that state-court adjudication of tribal disputes would weaken the power of tribal courts.").
137. See, e.g., Robert T. Anderson, Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280, 87 Wash. L. Rev. 915, 956-58 (2012) (calling for tribally controlled restoration of tribal jurisdiction).
138. Philip P. Frickey, A Common Law for Our Age of Colonialism: The Judicial Divestiture of Indian Tribal Authority over Nonmembers, 109 Yale L.J. 1, 47 (1999) [hereinafter Frickey, Colonialism] (criticizing "extreme problems with the result and rationale" of cases divesting tribes of jurisdiction over nonmembers).
139. Ann E. Tweedy, Connecting the Dots Between the Constitution, the Marshall Trilogy, and United States v. Lara: Notes Toward a Blueprint for the Next Legislative Restoration of Tribal Sovereignty, 42 U. Mich. J.L. Reform 651, 701 (2009) (suggesting ways to restore "tribal sovereignty [that] has been divested").
140. Int'l Shoe Co. v. Washington, 326 U.S. 310, 321 (1945) (holding in-state activities can create jurisdiction over nonresidents).
141. See Houston v. Moore, 18 U.S. (5 Wheat.) 1, 25-26 (1820) (holding state courts competent to decide issues of federal law when not expressly forbidden by Congress).
142. Tafflin v. Levitt, 493 U.S. 455, 458-59 (1990) (same).
143. Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477-78 (1981) (same).
144. Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507-08 (1962) (same).
145. Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511, 517-18 (1898) (same).
146. Claflin v. Houseman, 93 U.S. 130, 136-37 (1876) (same).
147. Black's Law Dictionary 1523 (9th ed. 2009) (defining "sovereign").
148. Cf. Katherine Florey, Beyond Uniqueness: Reimagining Tribal Courts' Jurisdiction, 101 Calif. L. Rev. 1499, 1557 (2013) [hereinafter Florey, Uniqueness] ("[S]pecifically in the area of tribal judicial powers …reasonable concerns about fairness, bias, and unfair surprise exist when nonmembers, particularly those only marginally connected with the tribe, are haled into tribal courts as defendants.").
149. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980) ("Due process requires that the defendant be given adequate notice of the suit.").
150. See Fed. R. Civ. P. 12(b) (permitting only defendant challenges to personal jurisdiction).
151. See, e.g., Tafflin v. Levitt, 493 U.S. 455, 458 (1990) (presuming states can enforce federal law).
152. 28 U.S.C. § 1332 (2012). Diversity occurs when opposing parties are residents of different states.
153. See, e.g., Frank Pommersheim, "Our Federalism" in the Context of Federal Courts and Tribal Courts: An Open Letter to the Federal Courts' Teaching and Scholarly Community, 71 U. Colo. L. Rev. 123, 163 (2000).
154. Aerojet-Gen. Corp. v. Askew, 511 F.2d 710, 716 n.6 (5th Cir. 1975) ("The very purpose of federal diversity jurisdiction is to avoid bias against parties from outside the forum state.").
155. See, e.g., Akhil Reed Amar, The Two-Tiered Structure of the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499, 1535 (1990) (discussing and critiquing Rooker-Feldman doctrine, which permits only Supreme Court to review state court determinations of federal law).
156. Blake A. Watson, The Curious Case of Disappearing Federal Jurisdiction over Federal Enforcement of Federal Law: A Vehicle for Reassessment of the Tribal Exhaustion/Abstention Doctrine, 80 Marq. L. Rev. 531, 602 (1997) ("[T]here is (at present) no possibility of Supreme Court review of tribal court decisions-even when tribal courts construe (or invalidate) federal statutes.").
157. U.S. Const. art. VI, § 2.
158. Instead of permitting review of federal law determinations made by tribal courts, current Supreme Court jurisprudence, under Montana, simply prevents tribal courts from determining most federal law in the first place. See, e.g., Nevada v. Hicks, 533 U.S. 353, 366-69 (2001) (holding tribal courts cannot determine § 1983 claims).
159. This Note does not attempt a complete survey of the history of federal court jurisdiction. This section focuses on the changes in federal courts affecting their ability to hear cases outside of federal legislative jurisdiction.
160. See generally Richard H. Fallon, Jr. et al., Hart and Wechsler's The Federal Courts and the Federal System 607-742 (6th ed. 2009) (discussing expansion of federal court power and jurisdiction).
161. Charles Warren, Federal Criminal Laws and the State Courts, 38 Harv. L. Rev. 545, 547 (1925).
162. See Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 78-79 (codified as amended at 28 U.S.C. § 1332 (2012)) (granting jurisdiction to district courts when parties are completely diverse).
163. 28 U.S.C. § 1332 (2012). Diversity occurs when opposing parties are residents of different states.
164. 28 U.S.C. § 1367.
165. See, e.g., Miller Aviation v. Milwaukee Cnty. Bd. of Supervisors, 273 F.3d 722, 732 (7th Cir. 2001) (citing efficiency as reason for exercising supplemental jurisdiction).
166. Peter Raven-Hansen, The Forgotten Proviso of § 1367(b) (and Why We Forgot), 74 Ind. L.J. 197, 208 (1998) (suggesting codifying "efficiency goal" of supplemental jurisdiction).
167. 28 U.S.C. § 1367(c).
168. See Anna Sappington, Is Lara the Answer to Implicit Divestiture? A Critical Analysis of the Congressional Delegation Exception, 7 Wyo. L. Rev. 149, 168 (2007).
169. United States v. Lara, 541 U.S. 193, 200-02 (2004).
170. Note, however, that federal courts have been reluctant to accept congressional definitions of jurisdiction when such congressional changes would affect a defendant's due process rights, even when that defendant is not an American citizen and is not on U.S. territory. See, e.g., Boumediene v. Bush, 553 U.S. 723, 733-36 (2008) (holding due process applies to noncitizen held at Guantánamo, despite federal law to the contrary). As such, if tribal courts are seen as legitimate threats to nonmember due process, it is unlikely that the Court would permit an expansion of tribal jurisdiction.
171. However, the current examples of congressionally expanded jurisdiction are likely inapplicable to tribal courts: There is no argument that tribal courts provide a better forum for diverse parties, and supplemental jurisdiction, congressionally granted as a matter of efficiency, is restricted by Strate, since supplemental jurisdiction allows a court to adjudicate outside of its legislative authority.
172. See, e.g., Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 17-18 (1987) (accepting tribal courts are entitled to deference by federal courts).
173. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) (explaining agencies are entitled to great deference from federal courts). Federal law only requires that states give full faith and credit to certain kinds of tribal court decisions, but most states have some legislation recognizing the validity of substantive tribal court determinations.
174. Stacy L. Leeds, Cross- Jurisdictional Recognition and Enforcement of Judgments: A Tribal Court Perspective, 76 N.D. L. Rev. 311, 336-37 (2000) (outlining specific examples of states that require or do not require full faith and credit for tribal decisions).
175. See John Monahan & Laurens Walker, Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law, 134 U. Pa. L. Rev. 477, 483-84 (1986) (noting Supreme Court has not extended distinction far outside administrative law).
176. Broz v. Schweiker, 677 F.2d 1351, 1357 (11th Cir. 1982).
177. Kenneth Culp Davis, An Approach to Problems of Evidence in the Administrative Process, 55 Harv. L. Rev. 364, 404-07 (1942)
178. Heckler v. Broz, 461 U.S. 952 (1983).
179. Londoner v. Denver, 210 U.S. 373, 386 (1908) (requiring hearing and opportunity to object to findings for tax targeting specific homeowners in Colorado).
180. See Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445-46 (1915) (noting Londoner had similar facts, but distinguishing because Londoner tax burdened "relatively small number of persons" and those persons were "exceptionally affected").
181. Kenneth Culp Davis, An Approach to Problems of Evidence in the Administrative Process, 55 Harv. L. Rev. 364, 404-07 (1942)
182. Tribes have jurisdiction over "'the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements'" and conduct that is "demonstrably serious and …imperil[s] the political integrity, the economic security, or the health and welfare of the tribe." Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408, 428, 431 (1989).
183. Montana v. United States, 450 U.S. 544, 565 (1981).
184. See, e.g., Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 344 (2008) (Ginsburg, J., concurring in part, concurring in the judgment, and dissenting in part) (expressing opinion that both powers are coterminous).
185. This is the approach the Court took in Oliphant. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212 (1978) ("Indian tribes do not have inherent jurisdiction to try and to punish non-Indians.").
186. Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802, 805 (9th Cir. 2011).
187. Despite the Supreme Court's holding in Nevada v. Hicks, 533 U.S. 353, 360 (2001), that land status is "only one factor to consider in determining" whether a tribe has jurisdiction.
188. Water Wheel, 642 F.3d at 815.
189. This distinction has been rejected by other circuits. See, e.g., Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1153 (10th Cir. 2011) (applying Montana to all attempts by tribal courts to exercise jurisdiction over nonmembers).
190. Water Wheel, 642 F.3d at 816.
191. See Cohen's Handbook of Federal Indian Law § 7.01 (Nell Jessup Newton ed., 2012) [hereinafter Cohen's Handbook] (defining "adjudicatory" and "legislative jurisdiction").
192. See, e.g., Morrison v. Olson, 487 U.S. 654, 711-12 (1988) (Scalia, J., dissenting) (expressing concern about difficulty of consistent application of balancing tests).
193. Cf. Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 885 (2d Cir. 1996) ("[F]ederal enforcement of the substantive provisions of [ICRA] is limited to those cases in which the remedy sought is a writ of habeas corpus.").
194. Amy Conners, Note, The Scalpel and the Ax: Federal Review of Tribal Decisions in the Interest of Tribal Sovereignty, 44 Colum. Hum. Rts. L. Rev. 199, 201 (2012) ("[There is] only one avenue for a dissatisfied tribal court defendant to get into federal court: a challenge to the tribe's jurisdiction.").
195. Jesse Sixkiller, Note, Procedural Fairness: Ensuring Tribal Civil Jurisdiction After Plains Commerce Bank, 26 Ariz. J. Int'l & Comp. L. 779, 802 (2009) (arguing Supreme Court limitation on tribal jurisdiction results from due process concerns).
196. See, e.g., Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802, 805 (9th Cir. 2011) (holding tribes have broad adjudicatory jurisdiction).
197. See, e.g., Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1153 (10th Cir. 2011) (finding no tribal jurisdiction over nonmember).
198. See Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 344 (2008) (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part) (expressing opinion that both powers are coterminous).
199. See, e.g., Bethany R. Berger, Justice and the Outsider: Jurisdiction over Nonmembers in Tribal Legal Systems, 37 Ariz. St. L.J. 1047, 1094 (2005) ("The data regarding the experience of nonmembers in the Navajo courts do not support the assumption of the United States Supreme Court that nonmembers will be at a disadvantage in tribal courts.").
200. Amy Conners, Note, The Scalpel and the Ax: Federal Review of Tribal Decisions in the Interest of Tribal Sovereignty, 44 Colum. Hum. Rts. L. Rev. 199, 201 (2012) ("[There is] only one avenue for a dissatisfied tribal court defendant to get into federal court: a challenge to the tribe's jurisdiction.").
201. Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 Harv. L. Rev. 433, 459 (2005) [hereinafter Frickey, Exceptionalism] (noting Strate Court "was concerned about a nonmember defendant being relegated to an unfair, foreign forum"). Also, tribal courts are notably underfunded, which may give rise to additional due process concerns.
202. See John Monahan & Laurens Walker, Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law, 134 U. Pa. L. Rev. 477, 483-84 (1986) (noting Supreme Court has not extended distinction far outside administrative law).
203. Richard F. Hahn, Note, Constitutional Limits on the Power to Exclude Aliens, 82 Colum. L. Rev. 957, 995 n.278 (1982) ("At a minimum, due process requires notice and an opportunity to be heard …. The right to be heard …implies …the right to a neutral magistrate, to call witnesses, to be represented by counsel, and to a decision on the record.").
204. Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 Harv. L. Rev. 433, 459 (2005) [hereinafter Frickey, Exceptionalism] (noting Strate Court "was concerned about a nonmember defendant being relegated to an unfair, foreign forum"). Also, tribal courts are notably underfunded, which may give rise to additional due process concerns.
205. Cf. Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 885 (2d Cir. 1996) ("[F]ederal enforcement of the substantive provisions of [ICRA] is limited to those cases in which the remedy sought is a writ of habeas corpus.").
206. 25 U.S.C. § 1302(a)(8) (2012) ("No Indian tribe in exercising powers of self-government shall deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.").
207. Cf. Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 885 (2d Cir. 1996) ("[F]ederal enforcement of the substantive provisions of [ICRA] is limited to those cases in which the remedy sought is a writ of habeas corpus.").
208. See, e.g., Frank Pommersheim, "Our Federalism" in the Context of Federal Courts and Tribal Courts: An Open Letter to the Federal Courts' Teaching and Scholarly Community, 71 U. Colo. L. Rev. 123, 163 (2000).
209. Robert N. Clinton, There Is No Federal Supremacy Clause for Indian Tribes, 34 Ariz. St. L.J. 113, 161 (2002) ("The federal government has no greater claim to supremacy for its law over the Indian tribes than it has for the supremacy of its law over Great Britain, Canada, or Mexico!").
210. Jesse Sixkiller, Note, Procedural Fairness: Ensuring Tribal Civil Jurisdiction After Plains Commerce Bank, 26 Ariz. J. Int'l & Comp. L. 779, 802 (2009) (arguing Supreme Court limitation on tribal jurisdiction results from due process concerns).
211. Steven Paul McSloy, Back to the Future: Native American Sovereignty in the 21st Century, 20 N.Y.U. Rev. L. & Soc. Change 217, 275-78 (1993) (discussing complete divestiture of criminal jurisdiction over nonmembers).
212. See, e.g., Dolgencorp, Inc. v. Miss. Band of Choctaw Indians, 732 F.3d, 421 (5th Cir. 2013) (Smith, J., dissenting) (expressing concern about lack of Fourteenth Amendment protections in tribal courts).
213. Strate v. A-1 Contractors, 520 U.S. 438, 459 (1997).
214. Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 Harv. L. Rev. 433, 459 (2005) [hereinafter Frickey, Exceptionalism] (noting Strate Court "was concerned about a nonmember defendant being relegated to an unfair, foreign forum"). Also, tribal courts are notably underfunded, which may give rise to additional due process concerns.
215. Cf. Goldberg v. Kelly, 397 U.S. 254, 267 (1970).
216. Grannis v. Ordean, 234 U.S. 385, 394 (1914).
217. See World Touch Gaming, Inc. v. Massena Mgmt., LLC, 117 F. Supp. 2d 271, 275-76 (N.D.N.Y. 2000) (holding companies that do business with tribal entities cannot claim ignorance as defense to enforcement of law).
218. Lobo Gaming, Inc. v. Pit River Tribe of Cal., No. C037661, 2002 WL 922136, at *4 (Cal. Ct. App. May 7, 2002) (holding sophisticated companies are charged with researching tribal law prior to business interactions).
219. Danka Funding Co., LLC v. Sky City Casino, 747 A.2d 837, 842 (N.J. Super. Ct. Law Div. 1999) (holding because plaintiff knew it was dealing with tribe, plaintiff had duty to understand applicable law).
220. Smith v. Salish Kootenai Coll., 434 F.3d 1127, 1138 (9th Cir. 2006) ("[C]onsensual relationship analysis under Montana resembles …Due Process Clause analysis for purposes of personal jurisdiction." (internal quotation marks omitted)).
221. Cf. Katherine Florey, Beyond Uniqueness: Reimagining Tribal Courts' Jurisdiction, 101 Calif. L. Rev. 1499, 1557 (2013) [hereinafter Florey, Uniqueness] ("[S]pecifically in the area of tribal judicial powers …reasonable concerns about fairness, bias, and unfair surprise exist when nonmembers, particularly those only marginally connected with the tribe, are haled into tribal courts as defendants.").
222. Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 346 (2008) (Ginsburg, J., concurring in part, concurring in the judgment, and dissenting in part) (supporting use of forum selection clauses in contracts between tribes and nonmembers).
223. See William V. Vetter, Doing Business with Indians and the Three "S"es: Secretarial Approval, Sovereign Immunity, and Subject Matter Jurisdiction, 36 Ariz. L. Rev. 169, 169 (1994) ("Indian tribes and individuals are no longer economically isolated …. The number and value of economic contracts between Indian and non-Indian enterprises are increasing rapidly.").
224. Stephen L. Pevar, The Rights of Indians and Tribes 155 (4th ed. 2012) (providing additional examples).
225. Atkinson Trading Co. v. Shirley, 532 U.S. 645, 659 (2001).
226. Brendale v. Confederated Tribes & Bands of the Yakima Nation, 492 U.S. 408, 431 (1989).
227. See, e.g., Bethany R. Berger, Justice and the Outsider: Jurisdiction over Nonmembers in Tribal Legal Systems, 37 Ariz. St. L.J. 1047, 1094 (2005) ("The data regarding the experience of nonmembers in the Navajo courts do not support the assumption of the United States Supreme Court that nonmembers will be at a disadvantage in tribal courts.").
228. See, e.g., N.D. Comm'n to Study Racial & Ethnic Bias in the Courts, Final Report and Recommendations 114 (2012), available at http://www.ndcourts.gov/court/ committees/bias_commission/FinalReport2012.pdf (on file with the Columbia Law Review) ("Focus group [members] observed that tribal court politics can have significant influence on decisions and individual treatment.").
229. See John P. LaVelle, Implicit Divestiture Reconsidered: Outtakes from the Cohen's Handbook Cutting-Room Floor, 38 Conn. L. Rev. 731, 732 (2006) [hereinafter LaVelle, Divestiture] ("[T]he Supreme Court has [decided] a series of cases imposing additional limitations on tribal authority by means of …judicially crafted theory ….").
230. See Stanley v. Illinois, 405 U.S. 645, 656 (1972) ("[Efficiency] is a proper state interest worthy of cognizance …[b]ut the Constitution recognizes higher values than speed and efficiency …. [T]he Due Process Clause …[was] designed to protect the …citizenry from the overbearing concern for efficiency." (citation omitted)).
231. Michael J. Trebilcock & Edward M. Iacobucci, Designing Competition Law Institutions: Values, Structure, and Mandate, 41 Loy. U. Chi. L.J. 455, 458 (2010) ("Competing concerns also exist between …efficiency and due process protections.").
232. Philip P. Frickey, A Common Law for Our Age of Colonialism: The Judicial Divestiture of Indian Tribal Authority over Nonmembers, 109 Yale L.J. 1, 47 (1999) [hereinafter Frickey, Colonialism] (criticizing "extreme problems with the result and rationale" of cases divesting tribes of jurisdiction over nonmembers).
233. David H. Getches, Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 Calif. L. Rev. 1573, 1654 (1996) (advocating Supreme Court return to foundational principles of Indian sovereignty over other views of sovereignty).
234. E.g., Grant Christensen, Judging Indian Law: What Factors Influence Individual Justice's Votes on Indian Law in the Modern Era, 43 U. Tol. L. Rev. 267, 309 (2012).