Matthew L.M. Fletcher.
Two theories of tribal government authority under federal Indian law—territory-based authority and consent-based authority—are at war. No theory is acceptable to either tribal governance advocates or their opponents. The war plays out most dramatically in conflicts over tribal authority over nonmembers.
The Supreme Court’s own precedents on whether tribes may exercise civil jurisdiction over nonmembers on tribal lands are in deep conflict. Ironically, while the Court has expressed serious concerns about the ability of tribes to guarantee fundamental fairness to nonmembers in general, the Court’s common law procedure for analyzing tribal jurisdiction makes irrelevant any evidence regarding the success or failure of tribal procedural guarantees.
I propose a two-part common law test that first acknowledges a presumption in favor of tribal jurisdiction on tribal lands, where tribal authority is at its apex. The presumption, however, may be rebutted in federal or state court by nonmembers challenging jurisdiction, allowing the parties to litigate whether the tribe has actually protected nonmember rights to fundamental fairness. This proposal unifies the territorial and consensual theories, and brings much needed realism to tribal jurisdictional questions.