Chapter 5 General Civil Regulatory Jurisdiction
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43 General Civil Regulatory Jurisdiction 43 P.180, n.89. Add the following to the end of the footnote: Another commentator, however, has suggested that “Congress should carefully deliberate” over proposed legislation that would extend tribal criminal jurisdiction to non-Indians and cited Justice Kennedy’s concurrence insofar as it stressed the importance of the “federal structure.” Patience Drake Roggensack, Plains Commerce Bank’s Potential Collision with the Expansion of Tribal Court Jurisdiction by Senate Bill 3320, 38 U. Balt. L. Rev. 29, 41 (2008); see also Ann E. Tweedy, Connecting the Dots Between the Constitution, the Marshall Trilogy, and United States v. Lara: Notes Toward a Blueprint for the Next Legislative Restoration of Tribal Sovereignty, 42 U. Mich. J.L. Reform 651, 700 (2009) (although questioning analytical legitimacy of Justice Kennedy’s concerns, concluding that “his opinion unequivocally suggests that to decrease its vulnerability , any restoration statute should, to the extent possible, provide for protection of individual constitutional rights”). P.183, n. 115. Add the following to line 2 after “E.g.,”: Ann E. Tweedy, Connecting the Dots Between the Constitution, the Marshall Trilogy, and United States v. Lara: Notes Toward a Blueprint for the Next Legislative Restoration of Tribal Sovereignty, 42 U. Mich. J.L. Reform 651, 717 (2009) (under Lara “[t]he scope of possible restoration, based on constitutional provisions as well as the Court’s earliest Indian law jurisprudence, is quite broad[,]” but “because of the danger that the Court’s distrust of tribes and increasing enforcement of constitutional norms will influence its evaluation of any legislative restoration, a legislative restoration should include protections for individual rights and extensive findings supporting restoration” and be “optional for tribes”); P.186, n.126. Add the following to the end of the footnote before the period: ; see MacArthur v. San Juan County, 566 F. Supp. 2d 1239, 1245 (D. Utah 2008) (rejecting contention that scope of inherent tribal authority constituted a nonjusticiable political question committed to Congress and the Executive Branch, since “much of the existing legal authority defining the subject-­ matter jurisdiction of Indian tribal courts over non-Indian litigants consists Chapter 5 General Civil Regulatory Jurisdiction 44 2011 Supplement—American Indian Law Deskbook, Fourth Edition of judicially made federal Indian law, that is, federal case law precedent representing a species of federal common law—which common law federal courts develop as a necessary expedient when Congress has not spoken to a particular issue”) (internal quotation marks omitted), aff’d without published op., 355 F. App’x 243 (10th Cir. 2009), cert. denied, 130 S. Ct. 2378 (2010) P.186, n.134. Add the following to the end of the footnote before the period: ; see generally Katherine J. Florey, Indian Country’s Borders: Territoriality, Immunity , and the Construction of Tribal Sovereignty, 51 B.C. L. Rev. 595, 609 (2010) (arguing that “[i]n a series of cases, the Court has limited the geographical dimension of tribal sovereignty still further by relying primarily on membership status within a tribe rather than the ownership status of land in determining who tribes can regulate[,]” and identifying Oliphant as where “[t]his progression began”) P.200, n.221. Add the following to the end of the footnote before the period: ; see Philip Morris USA, Inc. v. King Mountain Tobacco Co., 569 F.3d 932, 942 (9th Cir. 2009) (that the tribal court defendant had a consensual relationship with reservation tribal retailers as to sale of its cigarettes did not constitute the consent contemplated under the first Montana exception with respect to a suit by a rival tribal tobacco manufacturer over a trademark dispute; “[t]he mere fact that a nonmember has some consensual commercial contacts with a tribe does not mean that the tribe has jurisdiction over all suits involving that nonmember, or even over all such suits that arise within the reservation; the suit must also arise out of those consensual contacts”) P.200, n.222. Replace “Id.” with “532 U.S.”. P.208, n.267. Add the following to the end of the footnote before the period: ; see Attorney’s Process and Investigation Servs., Inc. v. Sac & Fox Tribe, 609 F.3d 927, 939, 940–41 (8th Cir. 2010), cert. denied, 131 S. Ct. 1003 (2011) (second Montana exception applied where tribal court defendant’s employees “organiz[ed] a physical attack by thirty or more outsiders armed with batons and at least one firearm against the Tribe’s facilities and the tribal members inside, including the duly elected council” and thereby...