American Indian Law Deskbook, Third Edition

Chapter 6 - Civil-Adjudicatory Jurisdiction

176 American Indian Law Deskbook, Third Edition Courts adjudicating civil matters connected with Indian country must make the threshold decision of whether subject matter jurisdiction exists or, in the case of federal courts, whether it should be exercised even when present. The core issues involve the standards of review applicable in federal court proceedings following exhaustion of tribal court remedies where the latter court’s jurisdiction is challenged; the extent of a federal court’s obligation to defer to either existing or possible tribal court proceedings when federal question or diversity jurisdiction is asserted over a dispute; and whether a tribe’s or state’s civil adjudicatory jurisdiction is measured by standards comparable to those used to determine regulatory jurisdiction. The increasing activity of tribal courts underscores the need to clarify not only the standards to be used in determining whether their judgments should be recognized in federal and state courts, but also whether tribal courts have a federal law-mandated obligation to extend full faith and credit to federal and state court judgments. These issues are among the most important and controversial in Indian law. I. FEDERAL ADJUDICATORY JURISDICTION Three principal jurisdictional bases exist for initiating federal court actions over controversies arising in Indian country and involving tribes or their members: a special form of federal question jurisdiction under 28 U.S.C.§ 1362 available only to Indian tribes, general federal question jurisdiction under 28 U.S.C. § 1331, and diversity of citizenship jurisdiction under 28 U.S.C.§ 1332. It appears settled in this regard that tribes are not “persons” for purposes of diversity jurisdiction, absent incorporation under section 17 of the Indian Reorganization Act1 or their own laws.2 The only practical significance of 28 U.S.C. § 1362 now derives from its interaction with 28 U.S.C. § 1341, which generally prohibits the exercise of federal jurisdiction over claims relating to the operation of state tax laws. Far more significant are two United Chapter 6 Civil Adjudicatory Jurisdiction 176 1 25 U.S.C. § 477. 2 See American Vantage Cos. v. Table Mountain Rancheria, 292 F.3d 1091, 1095 (9th Cir. 2002). 177 Civil Adjudicatory Jurisdiction States Supreme Court decisions that, as applied by lower courts, have affected dramatically the exercise of general federal question and diversity jurisdiction over claims by nontribal plaintiffs with respect to reservationbased claims. A. 28 U.S.C. § 1362: Special Jurisdictional Authorization for Indian Tribes In 1966 Congress enacted 28 U.S.C. § 1362, which provides that “[t]he district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States.” Tribal status for section 1362 purposes is thus dependent not only upon actual recognition by the Secretary of an entity’s governing body but also upon determination that the entity constitutes an Indian tribe.3 Tribal status presumably should be determined in accordance with ordinary standards.4 Although once in doubt,5 it now appears settled that an Alaskan native village organized under the Indian Reorganization Act (IRA)6 may constitute an “Indian tribe or band” under section 1362.7 Implicit in the tribal status requirement is the inability of individual members to assert section 1362 as a jurisdictional basis.8 Section 1362 further limits its jurisdictional grant to controversies arising “under the Constitution, laws, or treaties of the United States”—i.e., controversies involving federal questions.9 Courts have found the requisite federal question in suits for possession of land claimed pursuant to federal treaty,10 3 Price v. Hawaii, 764 F.2d 623, 626 (9th Cir. 1985). 4 See generally Chapter 2, part II (discussing standards used to resolve tribal status issues). 5 Alaska v. Native Village of Venetie, 856 F.2d 1384, 1387 (9th Cir. 1988) (remarking that the relevant statutory language raises doubts as to whether IRA organization should be construed so conclusively in the case of Alaska Natives). 6 Act of June 18, 1934, 48 Stat. 984 (codified as amended at 25 U.S.C. §§ 461–479). 7 Native Village of Noatak v. Hoffman, 896 F.2d 1157, 1160 (9th Cir. 1990) (answering the question in favor of § 1362 tribal status and reasoning that the involved villages “represent bodies of Indians of the same race united in a community under a single government in a particular territory” and that, even though one...