Tribal Jurisdiction over non members
This week, we will explore tribal jurisdiction over non-members through three cases: Williams v. Lee (1959), U.S. v. Mazurie (1975), and Oliphant v. Suquamish (1978). Finally, we will explore Supreme Court cases governing tribal civil regulatory authority over nonmembers from 1981-1989.
Week 6 Video Requirements
All videos include closed captions.
• Lecture 10 – Tribal Jurisdiction over Nonmembers 1: Early Law and the Start of Modern Judicial Diminishment Right click to an external site.)
o PowerPoint: Lecture 10
• Lecture 11 – Tribal Jurisdiction over Nonmembers 2: Foundational Modern Precedents and Congressional Authorization of State Jurisdiction in Indian Country (Right click to an external site.)
o PowerPoint: Lecture 11
Required Readings
Anderson et al., American Indian Law: Cases and Commentary (4th edition)
• Tribal Jurisdiction over Nonmembers 1: Early Law and the Start of Modern Judicial Diminishment
• Tribal Jurisdiction over Nonmembers 2: Modern Judicial Diminishment of Tribal Civil Jurisdiction (1981-1997)
o Edition 4: Chapter 8 I & II A-B pp. 551-577
o Edition 3: pp. 521-574
Assignment/Question
In legal discussions, it is often said, “bad facts make bad law.” This phrase has often been applied to Oliphant, because the case involved a very small tribe exerting jurisdiction over an area owned almost entirely by nonmembers on nonmember lands. Since Oliphant and throughout the Montana line of cases, the Supreme Court seems to show a real distrust of tribal governments exerting authority over nonmembers. In addition to tribal interests losing in a number of high profile cases, Professor Matthew Fletcher has shown that the modern Supreme Court has been much less likely to grant review of lower court decisions in which tribes lose, but more likely to review and reverse cases in which tribes won.
1. Should tribes avoid litigation, in order to avoid the risk of a loss that will be applied to all tribes? If yes, how might tribes still advance their interests outside the courtroom?
2. Although the Supreme Court has shown increasing mistrust of tribal governments, Congress has shown significant support through statutes such as the Tribal Law and Order Act of 2010 and the 2013 amendments to the Violence Against Women Act, both of which expanded tribal criminal jurisdiction, including over non-Indians. Given your knowledge of Indian law, can you reconcile the role of the Court and Congress in this setting?
Guidelines
300 words minimum.
• A minimum of 5 sources is required. The type of source requirements include 1) Required reading 2) Professor Helton’s video lectures, and 3) legal sources discussed in the current unit.
• Use multiple in-text citations in your post.
o All sources must be cited in your initial post at least once. Multiple citations of a source are often needed.
o Use the legal format for legal sources. In other words, cite treaties, cases, and statutes as well as Executive Orders and the Constitution using the legal format in the text of your post.
• Include a reference list at the end of the initial discussion post. The reference list should be in alphabetical order. Do not use footnotes.
• All citations and references must be in the proper format. Use these documents to assist you.
o
Citing Sources Document-Revised_5.21.2021.pdf
Quotations: Do not use quotes in your discussion post. Instead, paraphrase and summarize quotes and other information by using your own words. Be sure to include citations for all information that is summarized and paraphrased.
No Outside Sources- Use only the course material
Book Reference: Anderson, R. T., Krakoff, S. A., & Berger, B. (2020). American Indian Law Cases and Commentary (4th ed.). St. Paul MN: West Academic Publishing
Example of lecture reference: Helton, T. (2021). Lecture 2: Federal-Tribal Relations, College of Law, Norman, OK, University of Oklahoma.
