Tribal Land, Tribal Territory

• Publication year: 2022

Tribal Land, Tribal Territory

Katherine Florey
University of California, Davis, School of Law, florey@gmail.com

Tribal Land, Tribal Territory

Cover Page Footnote
Martin Luther King, Jr. Professor of Law, University of California, Davis, School of Law. Thanks to Andrea Chandrasekher, John Hunt, Peter Lee, and Al Lin for helpful comments and to Lydia Chen and Carolyn Downs for superb research assistance.

TRIBAL LAND, TRIBAL TERRITORY

Katherine Florey^*

[Page 967]

In the summer of 2020, two significant events brought into focus the relationship between Indigenous nations in the United States and the land that they govern. First, in a controversy that made national headlines, several tribes in South Dakota clashed with Gov. Kristi Noem about their power to impose COVID-19-related checkpoints on state highways passing through Indian country. Borders have potent symbolism; by detaining drivers even briefly at theirs, the South Dakota tribes made plain that travelers were entering a separate jurisdiction in which different rules and policies applied. At the same time that the checkpoint controversy was brewing, the Supreme Court decided the pathbreaking case of McGirt v. Oklahoma. While only incidentally about tribal territorial jurisdiction, Justice Gorsuch's opinion spoke directly to what it means for land to be tribal territory, suggesting that a tribe may retain jurisdiction over a reservation even if parts of it are sold to private owners. This would be an unremarkable statement in any other context, but it is near-revolutionary in federal Indian law, where Supreme Court-created doctrine has left tribes with very little ability to regulate non-Indians on fee land. This Article takes these two developments as a starting point for reflecting on the relationship between tribal land and tribal territory. It aims to undertake a comprehensive account of the varied strands of doctrine the Court has put forth on this subject, including the limits on tribal regulatory authority over fee land under Montana v. United States, the ever-shifting right to exclude that the Court has characterized in numerous and inconsistent ways, and the uncertain relationship between the two. After surveying current doctrine, the Article suggests a reimagining of both Montana and the right to exclude in a way that would facilitate a return to the territorial control that tribes traditionally exercised.

[Page 968]

Table of Contents

I. Introduction....................................................................970

II. The Evolution of Tribal Land Status Exceptionalism ..........................................................................................978

A. land and sovereignty in other contexts.........979

1. Sovereignty and Territory................................979
2. The Right to Exclude........................................980
3. Sovereigns and Land Ownership.....................982

B. the transformation of tribal territory..........985

1. Indigenous Systems of Property and Territory 985
2. Colonialism and Tribal Land .......................... 987
3. Allotment ........................................................... 992
4. Early Discussions of Allotment and the Right to Exclude............................................................. 995

III. Land and Territory in Current Indian Law Doctrine .........................................................................................998

A. nonmember ownership as a limit on tribal sovereignty...............................................................999

1. Implicit Divestiture, Nonmembers, and the New Significance of Ownership under Montana ... 999
2. Montana's Implications for Land Status on Reservations...................................................1007
3. Land in and out of Tribal Hands...................1010
4. Land and Diminishment................................1014

B. the right to exclude..........................................1017

1. The Right to Exclude As a Separate Basis for Tribal Power..................................................1017
2. Brendale and Varied Views of the Right to Exclude........................................................... 1022
3. Merging the Right to Exclude with Montana 1027

a. The Right to Exclude as Independent of Montana......................................................... 1027

[Page 969]

b. The Right to Exclude as a Component of the Montana Test................................................1031

IV. From Tribal Land to Tribal Territory....................1038

A. the real-world consequences of the land status focus........................................................................1038
B. territorial governance with limited tools .. 1042
C. tribal territory and the future of the supreme court doctrine.......................................................1046

1. The Right to Exclude As Sovereign Power and Foundation for Regulation............................1047
2. Reconsidering Montana..................................1051

V. Conclusion....................................................................1055

[Page 970]

I. Introduction

In the summer of 2020, two significant events brought into focus the relationship between Indigenous nations in the United States and the land that they govern. First, several tribes in South Dakota, including the Cheyenne River Sioux Tribe, the Oglala Sioux Tribe, and the Rosebud Sioux Tribe, clashed with Governor Kristi Noem about their power to impose COVID-19-related checkpoints¹ on state highways passing through Indian country.² The controversy, which made national headlines, highlighted the tribes' efforts to stop the virus from ravaging their population in a state that had largely eschewed COVID-19 precautions.³ At the same time, the checkpoints were also a potent expression of tribes' sovereignty over territory—perhaps the very reason Governor Noem resisted them so vigorously. Borders have potent symbolism; by detaining drivers even briefly at theirs, the South Dakota tribes made plain that travelers were entering a separate jurisdiction in which different rules and policies applied. (Notably, notwithstanding Governor Noem's efforts, the checkpoints remained in place until infection rates declined and the tribes had access to vaccines.⁴ )

[Page 971]

At the same time that Governor Noem was threatening legal action to remove the tribal checkpoints, a second important event occurred: The Supreme Court decided the pathbreaking case McGirt v. Oklahoma.⁵ The case—which concerned the validity of a state conviction for a crime arising on land alleged to be part of the Cherokee Nation's reservation⁶ —was on the surface only incidentally about the meaning of tribal territorial control.⁷ Yet, in finding that the reservation's original borders remained intact and thus encompassed the area in question, Justice Gorsuch's opinion spoke directly to what it means for land to be tribal territory. Noting that the federal government had "issued . . . land patents to many homesteaders throughout the West" without diminishing federal sovereignty over the land, Justice Gorsuch concluded that "there is no reason why Congress cannot reserve land for tribes in much the same way, allowing them to continue to exercise governmental functions over land even if they no longer own it communally."⁸

The observation that governmental power over land remains the same even when the land changes hands would be commonplace if made about any other sovereign power. Yet, it is in considerable tension with many of the Court's past statements suggesting that the ownership status of land is an important—and, in some cases, determinative⁹ —factor in whether the tribe can regulate activities

[Page 972]

there.¹⁰ Scholars and tribal advocates have long objected to this view, contending that tribal sovereignty should not be coextensive with tribal ownership—in other words, that tribes should be treated not as mere landowners but as ordinary sovereigns possessing territorial jurisdiction over everything within their borders.¹¹ Until very recently, however, this position made little headway with the Supreme Court. Rather, the Court has applied a complicated and fact-specific set of principles under which the existence of tribal civil jurisdiction¹² depends on the membership status of the parties involved,¹³ whether the land on which the conduct occurred is tribal land or private fee land,¹⁴ and whether one of two narrow exceptions is present.¹⁵

The Court's approach in this regard differs radically from the conceptions of sovereignty and territory that prevail in virtually every other context. In general, sovereign governments have almost entirely uncontested jurisdiction over land and activities within a certain bordered physical space.¹⁶ I write these words from privately owned fee land in California, but I am not permitted to break California law—by, say, manufacturing methamphetamine or keeping a wild animal without a permit—just because I do so from the sanctity of my home. Likewise, the applicability of California

[Page 973]

law on these points does not vary if I change my location to a friend's house or sell my property to someone else.¹⁷

The foregoing principles are generally true of states and nations¹⁸ and, through much of U.S. history, were widely considered to apply to tribal sovereigns as well.¹⁹ In recent decades, however, the Supreme Court has come to view tribal sovereignty in a far more constrained light, developing two alternative conceptual models of how tribes gain legitimate authority. Under the first of these models, tribal power is founded on tribal membership and consent—the idea that, by joining the tribe, tribe members implicitly accede to tribal jurisdiction.²⁰ This consent-based model of jurisdiction does not necessarily follow tribe members when they leave the reservation (although in some situations courts have suggested that it might),²¹ but it otherwise applies...