§82.5.6 Analysis

• Jurisdiction: Washington

§82.5.6ANALYSIS

Application of CR 82.5 requires an examination of whether the tribal court has subject matter jurisdiction and whether the tribal court's jurisdiction is exclusive or concurrent with state court jurisdiction. If jurisdiction is concurrent, the state court must analyze the factors in CR 82.5(b) and decide whether transfer to the tribal court is appropriate.

Comment: A complete analysis of tribal court adjudicative authority is beyond the scope of this section. A useful source for the practitioner analyzing tribal-state jurisdictional conflicts is Cohen's Handbook of Federal Indian Law, Chapters 6 (tribal/ state relationship) and 7 (civil jurisdiction) (Nell Jessup Newton ed., 2012).

(1)Determining existence of tribal court jurisdiction

The first inquiry in determining the existence of tribal court jurisdiction is whether an applicable treaty or federal statute expressly grants or divests jurisdiction. For example, the Indian Child Welfare Act, 25 U.S.C. §§1901-1963, expressly grants Indian tribes exclusive jurisdiction "over any child custody proceeding involving an Indian child who resides in or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law." 25 U.S.C. §1911(a).

Caveat: Tribal codes typically contain provisions that define the scope of the tribal court's jurisdiction. Such tribal code provisions may expressly limit the type of claims that the tribal court may hear. In a civil dispute between two tribal members, the jurisdictional provisions of the tribal code are dispositive. However, in cases involving non-Indians, federal law limitations on tribal court jurisdiction apply. Many tribal codes are available online through the National Indian Law Library, Tribal Law Gateway: How to Find Tribal Law: Codes and Ordinances, http: 11 www.narf.org I nill I triballaw I codes, htm, (last visited May 30, 2013)

In the more common situation, when no treaty or statute expressly addresses jurisdiction, there is no simple test for determining whether tribal court jurisdiction exists under federal law. Smith v. Salish Kootenai Coll., 434 F.3d 1127, 1130 (9th Cir.), cert, denied, 547 U.S. 1209 (2006). The extent of a tribe's civil jurisdiction often "requires a careful examination of tribal sovereignty and the extent to which that sovereignty has been altered, divested, or diminished, as well as a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and administrative or judicial decisions." Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, All U.S. 845, 855-56, 105 S. Ct. 2447, 85 L. Ed. 2d 818 (1985).

In most cases, the existence of tribal court subject matter jurisdiction under federal law will depend primarily upon: (1) whether the defendant is a tribal member or a nonmember and (2) whether the dispute arises on tribally owned land, land owned by the United States in trust for Indians, or non-Indian fee land. Water Wheel Camp Rec. Area, Inc. v. LaRance, 642 F.3d 802, 815-16 (9th Cir. 2011). In general, tribal courts have subject matter jurisdiction in the following situations:

(1)an action brought by any party (Indian or non-Indian) against a tribal-member defendant, when the claim arises in "Indian country" (a phrase denned in 18 U.S.C. §1151, which includes all land within the borders of an Indian reservation, even if no longer Indian-owned, as well as Indian trust land outside of a reservation), Williams v. Lee, 358 U.S. 217, 79 S. Ct. 269, 3 L. Ed. 2d 251 (1959); Smith, 434 F.3d 1127;

(2)an action brought by an Indian tribe or tribal member against a nonmember, when the claims arise out of the nonmember's activities on tribally owned lands or trust lands within Indian country, Water Wheel, 642 F.3d 802; and

(3)a case brought against a nonmember arising out of actions occurring on or relating to non-Indian fee lands located within Indian country, when a tribal court has jurisdiction only if (a) the nonmember has entered into consensual relationship with the tribe or its members, through commercial dealing, contracts, leases or other arrangements; or (b) the nonmember's conduct threatens or has some direct effect on the political integrity, economic security, or health or welfare of the tribe, Montana v. United States, 450 U.S. 544, 101 S. Ct. 1645, 64 L. Ed. 2d 234 (1981).

Comment: In determining the jurisdiction of Indian tribes, courts have not been consistent in distinguishing between "nonmembers" (e.g., persons, Indian or not, who are not members of the tribe at issue) and "non-Indians" (persons who are not members of any tribe). Compare Montana, 450 U.S. 544 (discussing tribal jurisdiction over "non-members") with Water Wheel, 642 F.3d 802 (discussing tribal jurisdiction over "non-Indians"). In Duro v. Reina, 495 U.S. 676,110 S. Ct. 2053,190 L. Ed. 2d 693 (1990), the Supreme Court distinguished between members and nonmembers for purposes of tribal criminal jurisdiction. However Congress subsequently repudiated this decision in 25 U.S.C §1301(2), which confirms that Indian tribes may "exercise criminal jurisdiction over all Indians." This legislation, and its subsequent affirmance in United States v. Lara, 541 U.S. 193, 124 S. Ct. 1628, 158 L. Ed. 2d 420 (2004), suggests that tribal civil jurisdiction over tribal members also extends to Indians who are not members of the tribe. SeeNat'l Farmers Unionlns., All U.S. at 854-55, &nn.16,17 (indicating that civil jurisdiction generally is broader than criminal).

In general, tribal courts will...