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.