Adjudication in Indian country: the confusing parameters of state, federal, and tribal jurisdiction.

• Author: Reynolds, Laurie

1. INTRODUCTION

   As a gauge of the strength of the United States government's commitment to the development of a vital and vigorous tribal judicial system, the Supreme Court could hardly appear more positive and unwavering in the language of its decided cases. In Williams v. Lee,(1) the Court issued its first modern opinion stressing the importance of tribal courts as the desired mechanism for ensuring tribal self-determination.(2) That 1959 decision held that the Arizona state court system lacked subject matter jurisdiction(3) over a lawsuit brought by a non-Indian reservation trader to collect a debt allegedly owed him by the on-reservation Indian defendants.(4) Recognizing state court jurisdiction, the Court stressed, would "undermine the authority of the tribal courts ... and hence would infringe on the right of the Indians to govern themselves."(5) Nearly three decades later, in Iowa Mutual Insurance Co. v. LaPlante,(6) Justice Marshall's opinion took the same pro-tribal court stance, emphasizing that "[c]ivil jurisdiction over [the activities of non-Indians on reservation lands] presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute."(7)

   In the context of litigated disputes, of course, these sweeping affirmations have been translated into specific jurisdictional holdings. The Supreme Court, as the arbiter of conflicting assertions of state, tribal, and federal power to adjudicate a pending lawsuit, has issued a number of important opinions that have attempted to delineate the borders of each forum's adjudicatory powers.(8) Unfortunately, lower courts have interpreted the Court's decisions allocating adjudicatory jurisdiction over disputes involving Indians or occurring in Indian country(9) as establishing mechanical, identity-based rules of access.(10) Moreover, the Court has created different, and at times contradictory, lines of precedent depending on the competing forums involved: that is, one set of rules applies to determine the legitimacy of state court adjudication, while different considerations shape the contours of federal court jurisdiction.(11) To confuse matters more, the Court's staunch endorsement of tribal court adjudicatory power has been offset somewhat by its expansive definition of federal question jurisdiction in Indian country,(12) and by its increasingly restrictive statements about the scope of tribal governmental power over non-Indians.(13)

   In disputes over the bounds of state adjudicatory power, the Court has held that state courts cannot adjudicate on-reservation disputes involving either a non-Indian plaintiff and an Indian defendant(14) or an Indian plaintiff and Indian defendant;(15) in such situations only tribal court adjudication is permissible. If the plaintiff is a tribe or an individual Indian suing a non-Indian, however, Supreme Court cases suggest that state courts must adjudicate the controversy.(16) In lawsuits involving multiple parties and multifaceted contacts both on and off the reservation, the rules become less clear, and broad swaths of concurrent tribal and state court adjudicatory jurisdiction appear to be emerging.(17) In contrast to the rules developed for state court adjudication, the holdings of several recent cases have instructed federal courts to require that remedies in tribal courts be exhausted in seemingly all lawsuits involving Indians, on-reservation contacts, or a disputed tribal power.(18)

   This Article focuses on the rules developed for state and federal courts to determine the scope of their respective adjudicatory jurisdictional powers in lawsuits relating to Indian country.(19) After reviewing the major Supreme Court decisions in this area, this Article asserts that both the lower courts and the Supreme Court itself have converted erroneously those holdings into per se rules of judicial access that depend on nothing other than the identity of the litigants.(20) The Article then argues that the Court should return to the important guiding principles it articulated in those cases, and that refocusing the inquiry to require careful analysis of relevant tribal interests can produce a more reasoned allocation of adjudicatory jurisdiction. In the process, each court's adjudicatory jurisdictional framework will lose the predictability generated by the current rules, but in exchange, jurisdictional analysis will become more coherent, ensuring a more faithful adherence to well-established judicial doctrines respecting inherent tribal sovereignty and tribal self-determination.

   Finally, this Article argues that federal courts should continue the "hands-off" approach endorsed by the Supreme Court in its recent articulation of the doctrine of exhaustion of tribal remedies.(21) With increasing awareness that tribes should have primary responsibility for the scope of their own courts' jurisdiction, the Court has insisted that jurisdictional disputes be resolved, at least initially, by a tribal court. This Article applauds that trend but urges the Court to reconsider the expansive avenues of post-tribal court challenges that it has established in federal courts.(22) Subsequently, this Article proposes that Congress legislate to provide a writ of certiorari from tribal court judgments to ensure consistency between those decisions and federal law.(23) The Article concludes by arguing that rejecting identity-based, per se rules, combined with limiting federal judicial review of tribal court judgments to the writ of certiorari, will better ensure that a firmly established tribal judicial branch will enhance the legitimacy of tribal governments, provide stability in commercial transactions, and offer a fair and efficient forum for adjudicating the rights and liabilities of Indians and non-Indians in Indian country.

2. THE CURRENT ALLOCATION OF ADJUDICATORY JURISDICTION IN INDIAN COUNTRY: A TRIPARTITE CONUNDRUM

   1. State Court Adjudicatory Jurisdiction

      For state courts, the presence of an Indian or tribal litigant or an on-reservation transaction creates serious questions about the state forum's ability to adjudicate a pending lawsuit. State law principles of general subject matter jurisdiction(24) must yield to the Supreme Court's pronouncements on the scope of state adjudicatory jurisdiction of lawsuits related to Indian affairs. These rules establish two distinct, and at times seemingly inconsistent, lines of cases: one requiring state court adjudicatory jurisdiction in some instances,(25) the other prohibiting state court adjudication in other cases.(26) In addition to these judicially created jurisdictional rules, distrust of tribal courts and principles of equal access to state judicial forums may result in a grudging and narrow relinquishment of subject matter jurisdiction over controversies that involve Indians or occur in Indian country.(27)

      1. Prohibiting State Court Adjudication: Williams v. Lee(28) and its Progeny

      The Supreme Court's holding in Williams was straightforward but important: the Court held that the Arizona state courts were without jurisdiction to adjudicate a lawsuit filed by a non-Indian trader against an on-reservation Indian couple for a debt allegedly incurred on the reservation.(29) Crucial to the Court's decision were the defendants' status as reservation Indians(30) and the on-reservation location of the transaction.(31) The actual doctrinal basis underlying the holding, however, was somewhat unclear. The Court offered two alternative theories, noting that the assertion of Arizona adjudicatory jurisdiction both infringed impermissibly on retained tribal sovereignty(32) and was preempted by contrary congressional intent.(33)

      Placed in its factual context, the Court's holding emerges as a carefully balanced opinion that recognized the reality that, without federal protection, the jurisdictional powers of tribal courts would remain undeveloped in the shadow of their state court counterparts. Because the limited scope of most tribal ordinances at that time prevented assertion of adjudicatory jurisdiction over unwilling non-Indian defendants,(34) the Court's refusal to establish exclusive tribal adjudicatory jurisdiction over a lawsuit brought by a non-Indian against reservation Indians would have had the practical effect of eliminating tribal court adjudication of most disputes involving non-Indians. In addition, the Court was impressed by the Navajo tribe's "greatly improved ... legal system" and "better-trained personnel,"(35) and by its courts' ability to exercise jurisdiction over suits by "outsiders against Indian defendants."(36) Moreover, the Court surely must have realized that state courts would be unlikely or unable to decipher and apply tribal law to those disputes for which a choice of law analysis would indicate its appropriateness.(37) Finally, the Court derived a negative inference of congressional intent from the fact that although current federal law provided a mechanism for states to assume broad-ranging jurisdiction over Indian reservations, Arizona had declined to exercise that option.(38)

      Seventeen years later, in Fisher v. District Court,(39) the Supreme Court reiterated and reinforced the Williams rule by holding that a Montana state court could not adjudicate an adoption proceeding in which all parties were tribal members and reservation residents. Again, the Court stressed the parties' Indian identity(40) and the on-reservation locus of the dispute(41) as crucial factual underpinnings to its conclusion that tribal court jurisdiction to resolve the adoption dispute was exclusive. Moreover, the Court was impressed by the readiness of the tribal court to adjudicate this controversy; the opinion emphasized the applicable tribal constitution, the tribal ordinance conferring jurisdiction upon a tribal court to adjudicate intratribal adoption proceedings, and the tribal court's advisory opinion to the Montana court in this case.(42)...