Friday, April 28, 2006

Tribal Court Jurisdiction and the Non-Member

Those dismayed by the recent decisions of the United States Supreme purporting to limit some tribal court jurisdiction over nonmembers, sometimes on the illusory fears of unfairness, should review a recent article by Professor Bethany Berger of the Wayne State University School of Law recently published in Arizona State University Law Journal entitled Tribal Courts and the Outsider.

After reviewing years of reported decisions from the Navajo Nation, Professor Berger reports that in cases where non-Indians and other nonmembers were involved in litigation in Navajo courts, they prevailed approximately 48% of the time and did not approximately 52% of the time, a relatively balanced and fair handling of their claims. This finding is significant because the Navajo Nation courts are among the most traditional tribal courts in the nation, frequently employing Navajo customary law where it applies to resolve disputes that come become for them. Professor Berger's thoughtful and thorough study seems to disprove as illusory the fears frequently heard by non-Indian attorneys of unfairness and mistreatment of nonmembers in tribal courts. It also brands as perhaps racial phobia the expressed distrust of tribal courts often voiced by the United States Supreme Court. This article strikes me as a necessary attachment to any legal brief about jurisdiction of tribal courts over non-Indians or other nonmembers.

Indian Tribal Land and Trust Status

While preparing for a talk delivered at a recent conference on the Indian Trust Doctrine sponsored by the Indian Legal Program of Arizona State University College of Law (now the Sandra Day O'Connor College of Law), I came to the startingly realization that I knew of no legal reason why tribally held Indian land (as opposed to individually owned Indian allotments) were held in trust by the federal government. While the federal government claims trust ownership of most tribal and lands and those of us who teach federal Indian law have accepted and taught this claim as gospel for years, its actual legal justification eluded me.

No federal statute expressly authorizes such trust status. Only one out of the over 400 treaties with Indian tribes mentions Indian tribal land being held in trust by the federal government. The failure of the other treaties to so expressly provide might suggest a contrary indication. The fact that lands given to removed southeastern tribes in the Indian Territory, now eastern Oklahoma, frequently were granted and are currently held by the tribes in fee simple, rather than in trust status, suggests that there was no tradition or common understanding in the 1830s that Indian tribal lands were to be held by the federal government in trust. Certainly, by the time of the enactment of section 5 of the Indian Reorganization Act of 1934, a common understanding had emerged that tribal lands should be held in trust by the federal government. No one dobuts that federal trust status at core was intended to restrict alienation or taxation of those tribal lands. Some of those restrictions are actually codified, as in 25 U.S.C. sec. 177 restraining the alienation of Indian land. Unfortunately, trust status also has meant federal mismanagement of tribal lands and some federal statutes deal with such management, particularly in the area of timber and mineral development. But is there any actual legal justification for the claim of the United States to legally hold tribal lands in trust status? To date I have been unable to find one and would appreciate other comments or thoughts on the matter.