Tribal Court Jurisdiction (III)

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  1. Mark Seecof says:

    Professor Minzner,

    I’ve been reading your series of posts about tribal courts, etc. with interest. I realize that you wish to discuss the law as it stands, but I’m not sure you can discern the policy motives behind the Supreme Court’s decisions without taking note of the strange context of “dependent sovereignty.” See, e.g., a partial summary in Souter, J.’s dissent in U.S. v. Lara, 541 U.S. 193 (2004).

    Dependent sovereignty is an ad-hoc political compromise of dubious Constitutionality and many of the political actors and judges who cooperate to maintain it recognize that if it is extended too far it may collapse. Since the Indian Citizenship Act of 1924 Congress has likely had no Constitutional authority to delegate (or to recognize) any power over non-members (or former members) to (or “of”) “tribal courts” or “governments.” There simply are no sovereign bands of non-citizen Indians left to deal with. With respect to courts the whole existing scheme for tribal courts affronts the appointments clause and most of Article III, arguably contravenes the Titles of Nobility clause (Article I, Section 9, Clause 8) since tribal membership is a heritable privilege, and undoubtedly produces many violations of the Bill of Rights (which as Heller v. D.C. just reminded us, applies to inferior “governments” established by Congress).

    It might be fine for Congress to permit Indians to maintain voluntary tribal courts (say, the way Roman Catholics maintain canon-law courts) and to authorize State and Federal courts to enforce tribal decisions (within Constitutional limits) as with commercial arbitration, but there is no principle of American law which would permit Congress to force anyone, tribal member or not, to submit to such organs.

    On the other hand, as you have been explaining so clearly, Congress has (ultra-vires, to be sure) delegated power to tribal courts and the Supreme Court has largely tolerated this. Why? Because it seems to many people to be the best way to provide for local affairs of reservation Indians. However, the Supreme Court resists Congress’ moves to extend the baseless jurisdiction of tribal courts to non-members because non-members aggrieved by the obvious partiality of tribal courts would likely raise the equally obvious Constitutional arguments against such jurisdiction before the Supreme Court. The Supreme Court would find it uncongenial either to enforce a clearly improper tribal court scheme against non-Indians or to strike down the tribal court scheme for everyone including Indians.

    I suspect that the Supreme Court’s tendency to assume all tribal courts are alike (even though, as you have shown, they really are not) stems from a desire to see-no-evil. The practical differences among tribal courts are irrelevant from a Federal Constitutional point of view: to the extent that tribal courts exercise improperly delegated Federal power, they are all the same.

    (Could Congress properly delegate any mandatory power to Indian “tribal” courts? I think it could! Congress could authorize local governments and courts on Indian reservations which were truly Federal territory. However, such governments would be subject to the Bill of Rights, to the Privileges and Immunities clause, to the Titles of Nobility clause, to the supervisory power of Article III courts, and to the 15th Amendment– so reservation governments would have to permit equal voting participation by non-tribal-members living in such territories. Even more trouble, from the point of view of many, would be the “forts and magazines” clause (Article I, Section 8, Clause 17) requiring the consent of the legislature of any affected State to expand Federal territory. If Congress obeyed that, it could not so easily give Indians “extraterritoriality” to set up casino gambling.)

    You suggested that tribal courts and the laws they apply could be as just as any and that non-member litigants might do as well in a tribal courts as non-residents in State courts. While I accept your analysis, Caesar’s wife must be above suspicion. A court established by a small, insular tribe applying recondite customary law does not appear fair to non-member litigants. If the Supreme Court could take notice of the difference between, say, the courts of the Navajo Nation and those of some one-busload-of-casino-owners tribe, perhaps it could then manage a fair system of tribal courts. However, the Supreme Court could only divest inadequate tribal courts of jurisdiction on grounds which would necessarily apply to fully-capable tribal courts– grounds which I have touched upon– the various ways today’s tribal courts offend the Constitution. If Congress were to create legitimate reservation governments and courts (that is, based on territory rather than tribal membership) then we could ask the Supreme Court to supervise them properly.