Justice and the Outsider: Jurisdiction over Non-Members in Tribal Legal Systems
In this Article, I examine and test the assumptions of the United States Supreme Court regarding justice and those considered outsiders to Indian tribes. Over the last quarter century, the Court has progressively limited tribal jurisdiction over both non-Indians and Indians that are not members of the tribe. I examine these decisions to show that they owe less to established doctrine than to two assumptions about jurisdiction over nonmembers. The first is that outsiders will be at a disadvantage and subjected to bias by tribal courts. The second is that jurisdiction over outsiders has little to do with tribal self-government, which the Court sees as confined to control of tribal members and practices perceived as traditionally Indian.
I test these assumptions using original empirical research regarding the decisions of the Navajo Nation courts. Analyzing 513 cases decided over a 32 year period, I find that the win-loss rate is numerically equal, with 50% of nonmembers winning and 50% losing when they go before the Navajo appellate courts. I complement the numerical analysis with closer analysis of three kinds of cases that might appear particularly vulnerable to bias: child custody cases, cases arising from business relationships, and cases resting on Navajo customary law. These decisions, I find, are both quantitatively and qualitatively balanced. The court, for example, often declines to exercise jurisdiction unfairly obtained, reaches holdings on questions of commercial law that are similar to or more favorable to outsiders than those reached in state or federal courts, and uses Navajo customary law to supplement Navajo codes to avoid unfair results.
I then argue that cases involving nonmembers are disproportionately important in tribal legal systems. Although the Navajo Nation perhaps most closely matches the imagined ideal of a tribe isolated from non-Indians and non-Indian culture, cases involving nonmembers comprise 21% of cases before the Navajo appellate courts over the 32 year period, and 30% of cases decided in the last ten years. As this statistic suggests, formal tribal legal systems play one of their most important roles in resolving disputes arising from conflict with the outside world, and doing so in a way that preserves tribal distinctiveness and cohesion. Given the conflicted history of tribal legal systems as tools of both acculturation and resistance, moreover, jurisdiction over these disputes is crucial in preserving the efficacy and perceived legitimacy of tribal legal systems. It is also important in preserving incentives to fairness within the tribal courts, by creating a sense of the importance of the judicial role and by forcing judges to grapple with difference in tribal societies. Preservation of jurisdiction over outsiders, therefore, is crucial in keeping the federal commitment to tribal self-government.
Indian and Aboriginal Law
Date of this Version
Bethany R. Berger, "Justice and the Outsider: Jurisdiction over Non-Members in Tribal Legal Systems" (February 2, 2004). bepress Legal Series. bepress Legal Series.Working Paper 124.