Personal jurisdiction in tribal courts.

• Author: Castleman, David A.

INTRODUCTION

Long before the first European immigrants set foot on American shores, Indian tribes had systems to administer justice. (1) Long after the federal government had effectively subjugated tribal governments, Congress passed the Indian Reorganization Act (2) to encourage tribes to "organize Western-style governments." (3) Formal court systems, "a relatively recent development in Indian Country," (4) are essential components of a functioning Western-style government. These court systems have grown substantially over the past three decades. (5) In 1974, the American Indian Law Training Program began publishing the Indian Law Reporter to collect "on a monthly basis all current developments in the field of Indian law." (6) It was not until 1983 that the reporter also began to publish tribal court cases. (7) In 2004, the Indian Law Reporter published eighty-two tribal court decisions (mostly appellate cases), (8) which is roughly as many as the number of formal written opinions issued annually by the United States Supreme Court. (9) The development and growth of tribal court systems (10) is a key element of tribal sovereignty. For the federal government to remain committed to its current policy of promoting tribal self-government, it must support these growing systems.

For tribal court systems to be effective, they must adjudicate the disputes that legitimately come before them. This requires that a tribal court have the power to exercise jurisdiction over both the dispute and the parties. Although federal courts have paid close attention to the limits of tribal subject matter jurisdiction, personal jurisdiction is often overlooked. (11) Because tribal courts have the power to "enter[] ... multi-million dollar judgment[s]," (12) whether tribal courts have personal jurisdiction over the parties before them is a question of supreme importance to potential litigants.

In this Comment, I argue that the Indian Civil Rights Act of 1968 (ICRA), (13) via its due process clause, limits tribal courts' exercise of personal jurisdiction over nonconsenting defendants. The external limitations on tribal jurisdiction in general come from federal law. For instance, in Strate v. A-1 Contractors, the Supreme Court severely curtailed tribal court subject matter jurisdiction over a nonmember to cases where she has entered into a consensual relationship with the tribe, or where the political integrity, economic security, or health and welfare of the tribe is at stake. (14)

The limiting of tribal power by the Supreme Court has been extremely controversial, especially because the plenary power doctrine vests in Congress the power to regulate Indian tribes. (15) Even if the plenary power doctrine does not prevent the Supreme Court from acting where Congress has remained silent, the doctrine does require deference to Congress where it has acted. (16) Thus, if Congress enacts a statute that defines the scope of tribal power, then the federal courts must follow that statute, even if they had developed law to the contrary. For instance, in 1990, the Supreme Court created a new rule divesting tribes of their criminal jurisdiction over nonmember Indians, despite the absence of action by Congress. (17) Congress soon thereafter "fixed" this problematic holding by legislating that, to the contrary, tribes do have criminal jurisdiction over nonmember Indians. (18)

Unlike the area of tribal court subject matter jurisdiction, where Congress has not acted, Congress has acted in the area of tribal court personal jurisdiction by passing the due process clause of the ICRA. (19) Both the text and the legislative history of the ICRA indicate that the ICRA's due process clause should be interpreted similarly to the Fourteenth Amendment's (20) and in accordance with the modern conception of personal jurisdiction first announced in International Shoe Co. v. Washington. (21) Furthermore, interpreting tribal personal jurisdiction using International Shoe is not merely a theoretical possibility. Some tribal courts, even in prominent cases, have shown a willingness to apply federal due process precedent in interpreting their own jurisdictional statutes. (22)

However, when dealing with the law of tribal courts, simply defining the source and scope of the court's jurisdiction is only the first step of the analysis; outlining the scope of federal review is the second step. In Santa Clara Pueblo v. Martinez, using the now-antiquated Cort v. Ash analysis, (23) the Supreme Court refused to imply a federal cause of action to allow plaintiffs to enforce the ICRA outside of tribal court. (24) Ten years later, in National Farmers Union Insurance Cos. v. Crow Tribe of Indians, the Supreme Court held that federal law governs tribal court jurisdiction, and thus an action to challenge tribal court jurisdiction was a federal question. (25) However, National Farmers only concerned subject matter jurisdiction, which was not governed by any federal statute. Although Martinez is distinguishable, the question remains whether National Farmers will be extended to disputes over personal jurisdiction. The Supreme Court should not, and most likely would not, find an implied cause of action to enforce the ICRA as it applies to the exercise of personal jurisdiction by tribal courts. Under the Court's current Alexander v. Sandoval analysis, (26) which is substantially more restrictive than the Cort test on which the Martinez Court relied, the Court is unlikely to allow litigants a private right of action to challenge personal jurisdiction in tribal courts.

This Comment proceeds in four parts. In Part I, I briefly discuss the jurisdictional landscape. In Part II, I contend that the ICRA limits tribal courts' personal jurisdiction. In Part III, I survey how some tribal courts have incorporated constitutional concepts of personal jurisdiction into their own jurisprudence. In Part IV, I argue against creating a federal cause of action to directly challenge the personal jurisdiction of tribal courts.

1. THE JURISDICTIONAL LANDSCAPE

   Successfully navigating the quagmire of tribal jurisdiction would require a guidebook far beyond the scope of this Comment. In this Part, however, I will briefly set the stage for the rest of my argument. First, I will review the standards for subject matter and personal jurisdiction in federal and state courts. Then, I will lay out the basics of jurisdiction in tribal court.

   1. The Jurisdiction of Federal and State Courts (27)

      Federal courts are courts of limited subject matter jurisdiction and may only adjudicate matters over which they have been explicitly granted jurisdiction by both the Constitution and federal statute. (28) "The practical effect of this proposition is that there is a presumption against federal jurisdiction: whereas the ability to hear a case is presumed in state courts of general jurisdiction, in the federal system the existence of subject matter jurisdiction must be demonstrated at the outset...." (29) Additionally, although state courts are competent to hear actions that arise under federal law, (30) in such cases Congress may encourage, or even require, federal jurisdiction. (31)

      Of course, having jurisdiction over the subject matter of an action is only half of the picture. The court "also must have jurisdiction over the persons or property involved in the action." (32) In order for a court to obtain personal jurisdiction over a nonconsenting defendant, it must have the authority under state law to do so, and the exercise of such jurisdiction must not violate constitutional due process requirements. While state laws (33) vary, some states have enacted long-arm statutes that permit their courts to acquire jurisdiction to the full extent that due process allows. (34) The constitutional limitations on personal jurisdiction come from the Due Process Clauses of the Fifth and Fourteenth Amendments. (35) Due process requires either actual presence (36) or minimum contacts between the defendant and the forum state. (37) Having briefly summarized the jurisdictional standards in federal and state courts, I turn now to the peculiarities of jurisdiction in tribal courts.

   2. The Jurisdiction of Tribal Courts

      Two centuries ago, Chief Justice John Marshall declared that Indian tribes are "domestic dependent nations," (38) a term recently described by the Supreme Court as its "traditional understanding of the tribes' status." (39) In 2004, in United States v. Lara, the Supreme Court held that a tribe acted as a separate sovereign distinct from the United States when it exercised its criminal jurisdiction over a nonmember Indian. (40) The Court has also recognized "the plenary power of Congress over the affairs of native Americans" (41) stemming from the Indian Commerce Clause. (42) It might be tempting to think that the law of the sovereign should determine the jurisdiction of its courts. (43) However, because the tribes are under the control of the federal government, the scope of tribal court jurisdiction is also a matter of federal law.

      Furthermore, the existence of tribal court jurisdiction may turn on the legal status of the parties in the dispute. (44) Broadly speaking, this concept is not peculiar to tribal courts; for instance, the existence of subject matter jurisdiction in federal court may turn on the citizenship of the parties. (45) In Indian law, there are two distinctions that may be relevant, depending on the jurisdictional issue: whether someone is an Indian or a non-Indian, and whether someone is a member or a nonmember of a particular tribe. An Indian is merely someone who "(1) ha[s] some Indian blood, and (2) [is] regarded as an Indian by his or her community." (46) However, an Indian may also be a member of a particular tribe, which generally means that she is enrolled in that tribe. (47) Thus, for tribal jurisdictional purposes, there are three classes of person that are relevant: non-Indian, Indian nonmember, and...