Tribal Court Jurisdiction (II)
Yesterday I argued that Plains Commerce Bank has a number of flaws. Today I want to discuss the fundamental uniqueness of tribal court jurisdiction in the American system. (As a caveat, the following analysis is intentionally brief and leaves out much of the complexity of the field to keep it relatively generally accessible.)
Several aspects of tribal jurisdiction are unusual and make it difficult to compare the limits on tribal courts to those on non-tribal courts. For instance, does Plains Commerce Bank impose a subject matter jurisdiction or a personal jurisdiction limit on the tribal court? The answer, of course, is that it is both. The case depends on the identity of the land owner and the nature of the regulated activity.
More fundamentally, the Supreme Court has assumed that tribal courts are different from all other courts. The general American rule is that all courts have concurrent jurisdiction if they have personal jurisdiction. On facts equivalent to those in Plains Commerce Bank, you could imagine a New York bank created a series of long-term contractual relationships with a California company relating to land located in California. If the California company wanted to bring tort and contract claims arising from that relationship, there’s no real doubt that the bank could be sued in either New York or California after Burger King. If courts are worried about the conflict between the interests of the two states, they resolve the conflicts through a choice of law regime. As Plains Commerce Bank shows, though, with some exceptions, there is generally an exclusive jurisdiction model when it comes to tribes and the interest question is resolved at the jurisdictional stage. If the Supreme Court thinks the tribe does not have a sufficient interest, it is not forced to apply a different law – it lacks jurisdiction completely.
Why does the Court do this? The answer lies in a second oddity of tribal jurisdiction. Even as the Supreme Court assumes tribes are different from all other courts, it assumes that all tribal courts are identical. The Court has consistently expressed a deep (and in my view, unfair) suspicion of tribal courts. The Chief Justice repeats this suspicion in Plains Commerce Bank when he notes that “Indian courts differ from traditional American courts in a number of significant respects,” and that “non-members have no say in the law and regulations that govern tribal territory.” (The Court also states “the Bill of Rights does not apply to Indian tribes.” Even though the Constitutional Bill of Rights does not apply in tribal court, a largely equivalent statutory set of right applies through the Indian Civil Rights Act.). For this proposition, Plains Commerce Bank relies on Justice Souter’s concurrence in Nevada v. Hicks, where he said:
Tribal courts also differ from other American courts (and often from one another) in their structure, in the substantive law they apply, and in the independence of their judges. Although some modern tribal courts mirror American courts and are guided by written codes, rules, procedures, and guidelines, tribal law is still frequently unwritten, being based instead on the values, mores, and norms of a tribe and expressed in its customs, traditions, and practices, and is often handed down orally or by example from one generation to another. The resulting law applicable in tribal courts is a complex mix of tribal codes and federal, state, and traditional law which would be unusually difficult for an outsider to sort out.
(citations and quotations omitted). At its core, this is a due process fear. The Court believes that non-members should not be subjected to tribal jurisdiction because all tribal courts will be unfair. Of course, if that is the issue, we should see this as a factual question. If the concern is tribal court fairness, we should start treating tribes differently and ask whether the applicable tribal court system in a given case is in fact “difficult for an outsider to sort out.” If it is, there is an argument that a limited jurisdiction model makes some sense. Tomorrow I’ll argue, though, that in the vast majority of cases, this fear is unfounded and tribal court systems are fair and comprehensible. I will also discuss what Plains Commerce Bank would have looked like if we treated tribes differently.