Decolonizing the Supreme Court: Expanding Tribal Adjudicating Authority Over Non-Member Disputes
Leading up to the American Revolution, relations between tribes and colonial powers were seen as equivalent to those between separate and sovereign nations. Treaties were formed in congruence with the view that American Indian tribes had exclusive jurisdiction over their lands and legal rights to property. The framers of the Constitution adopted a centralized policy bestowing the federal government with enumerated powers to establish treaties and regulate commerce with tribes--much in the same way that the federal government deals with other foreign nations.
The most significant contribution to case law regarding tribal nations’ status as sovereign entities lies within the Marshall Court’s trio of cases: Johnson v. M’intosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832). Johnson established that private citizens could not purchase land from Native Americans, and in Cherokee Nation, the Court ruled that the Cherokees were a dependent nation with a relationship to the U.S like that of a “ward to its guardian.” [1] Chief Justice John Marshall determined in Worcester that tribes were “independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial.” [2] Ultimately, while this went unenforced at the time, his description of a tribe’s power in relation to the state and federal government remains some of the strongest language in support of tribal sovereignty. Despite the fact that in the last twenty nine years, the Supreme Court has ruled against tribal interests in 72% of the fifty-five cases it heard that dealt with this matter, the current Court is beginning to come back to the ideology of Marshall in Worcester, ruling in favor of tribal interests. [3] Through recent rulings in cases involving treaties where land disputes arose between tribes and the United States government, there is growing precedent being established for a renewed increase in tribal authority over nonmember disputes in civil courts.
Today, United States law dictates that American Indian tribes act as quasi-sovereign entities within the larger nation. Tribes cannot exercise criminal or civil jurisdiction over nonmembers -- individuals who are not a part of a particular tribe. Given this, however, there are several major exceptions to this rule. These exceptions are explicated in the Montana v. U.S. Supreme Court case of 1981. The Crow Tribe of Montana sought to prohibit hunting and fishing within its reservation to anyone who was not a member of the tribe, relying on treaties that created the territory to do so. Montana, however, asserted that it in fact had the ultimate authority to regulate the hunting and fishing of nonmembers within the reservation. The Supreme Court held that the “inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” [4] While this might seem like a hindrance to tribal authority, the Court identified two exceptions to this principle--the Montana exceptions--that maintained some of their power. The first exception is that a tribe may regulate, through taxation or other means, the activities of nonmembers who enter consensual relationships with them by way of contracts or commercial dealing. The second is that a tribe can exercise civil authority when the conduct of a nonmember threatens the political integrity, economic security, or welfare of the tribe. [5]
Although there have been instances of encroachment on tribal authority even within these exceptions, the holding in Montana still establishes a legal framework for the expansion and preservation of some tribal jurisdiction. With no explicit constitutional backbone to define federal power over tribal law, a divestiture of power to tribal courts over nonmember disputes is a crucial step in restoring full tribal sovereignty, a move that this case slightly gives hope for.
An example of the Montana ruling in action comes from the 2016 case Dollar General Corporation v. Mississippi Band of Choctaw Indians. This case followed a 13-year-old member of the Choctaw tribe who was allegedly sexually assaulted in 2003 by the manager of the Dollar General Corporation, a business that operated on Choctaw land. In a unanimous opinion, the Court drew upon Montana, holding that the facts of Dollar General Corporation met the first Montana exception, thus allowing the Choctaw tribal court to exercise jurisdiction over the Dollar General store operated on tribal land. [7] Although a favorable ruling for the Choctaw tribal court, the case set no further precedent to the question of tribal adjudication. The ambiguity surrounding the Supreme Court’s civil divestiture jurisprudence must be resolved by solidifying the fundamental principles of tribal court jurisprudence over nonmember disputes, with the Montana exceptions being consistently recognized and applied to cases. [8]
Twice this year as well, the Supreme Court has ruled in favor of tribal rights in cases involving tribe and state land disputes. Herrera v. Wyoming (2019) brought a major victory of the Crow Tribe after a long-lasting hunting rights battle between the tribe and the state of Wyoming. Clayvin Herrera, a member of the Crow Tribe, was cited with two hunting misdemeanors. He moved to dismiss the citations, arguing the Supremacy Clause of the US Constitution and Laramie Treaty of 1868 gave him the right to hunt off of reservation land. The Supreme Court in this case concluded that Wyoming’s admission to the Union did not revoke the Crow Tribe’s 1868 federal treaty to hunt on the “unoccupied lands of the United States.” [9] Additionally, the Court ruled in Washington v. Cougar Den (2019) that the state of Washington’s fuel taxes violated an 1855 treaty that guaranteed the Yakama tribe the right to travel freely on public highways. Despite the ongoing battle between tribal autonomy and United States authority, these victories demonstrate that treaties granting autonomy and authority to tribes do in fact matter. [10]
Although Congress can still abrogate and amend treaties with little tribal input, Montana, Dollar General Corporation, Washington and Herrera have laid a critical foundation from which to establish a precedent for the expanse of tribal rights through treaty interpretation. With the right case that deals with conflict between a tribe and a nonmember, there lies a strong possibility that the Court would more clearly delineate tribal adjudication powers in favor of their autonomy.
[1] Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (Supreme Court 1831).
[2] Hallie McDonald, “A Dollar For Your Thoughts: Dollar General And The Supreme Court’s Struggle With Tribal Civil Jurisdiction,” Hofstra Law Review, https://www.hofstralawreview.org/wp-content/uploads/2018/02/CC.3.McDonald.pdf , 404 (2018).
[3] id, at 400
[4]"Montana v. United States." Oyez. Accessed October 29, 2019. https://www.oyez.org/cases/1980/79-1128 (Supreme Court 1981).
[5] Jane Smith, “Tribal Jurisdiction over Nonmembers: A Legal Overview,” Congressional Research Service Support, https://fas.org/sgp/crs/misc/R43324.pdf, 1 (2013).
[6] Hallie McDonald, “ A Dollar For Your Thoughts: Dollar General And The Supreme Court’s Struggle With Tribal Civil Jurisdiction,” Hofstra Law Review, https://www.hofstralawreview.org/wp-content/uploads/2018/02/CC.3.McDonald.pdf , 406 (2018).
[7]"Dollar General Corporation v. Mississippi Band of Choctaw Indians." Oyez. Accessed October 29, 2019. https://www.oyez.org/cases/2015/13-1496 (Supreme Court 2016).
[8] Hallie McDonald, “ A Dollar For Your Thoughts: Dollar General And The Supreme Court’s Struggle With Tribal Civil Jurisdiction,” Hofstra Law Review, https://www.hofstralawreview.org/wp-content/uploads/2018/02/CC.3.McDonald.pdf , 427 (2018).
[9] "Herrera v. Wyoming." Oyez. Accessed October 29, 2019. https://www.oyez.org/cases/2018/17-532 (Supreme Court 2019).
[10] Daniel Vock, “In Tribe v. State Cases, Supreme Court Shifts Support to Native Americans,” Governing (2019), https://mises.org/wire/us-supreme-court-right-rule-favor-tribal-sovereignty-0, (Visited October 9, 2019).