Adjudication in Indian Country: The Confusing Parameters of State, Federal, and Tribal Jurisdiction

I. INTRODUCTION As a gauge of the strength of the United States government's commitment to the development of a vital and vigorous tribal judicial system, the Supreme Court could hardly appear more positive and unwavering in the language of its decided cases. In Williams v. Lee,(1) the Court issued its first modern opinion stressing the importance of tribal courts as the desired mechanism for ensuring tribal self-determination.(2) That 1959 decision held that the Arizona state court system lacked subject matter jurisdiction(3) over a lawsuit brought by a non-Indian reservation trader to collect a debt allegedly owed him by the on-reservation Indian defendants.(4) Recognizing state court jurisdiction, the Court stressed, would "undermine the authority of the tribal courts ... and hence would infringe on the right of the Indians to govern themselves."(5) Nearly three decades later, in Iowa Mutual Insurance Co. v. LaPlante,(6) Justice Marshall's opinion took the same pro-tribal court stance, emphasizing that "[c]ivil jurisdiction over [the activities of non-Indians on reservation lands] presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute."(7) In the context of litigated disputes, of course, these sweeping affirmations have been translated into specific jurisdictional holdings. The Supreme Court, as the arbiter of conflicting assertions of state, tribal, and federal power to adjudicate a pending lawsuit, has issued a number of important opinions that have attempted to delineate the borders of each forum's adjudicatory powers.(8) Unfortunately, lower courts have interpreted the Court's decisions allocating adjudicatory jurisdiction over disputes involving Indians or occurring in Indian country(9) as establishing mechanical, identity-based rules of access.(10) Moreover, the Court has created different, and at times contradictory, lines of precedent depending on the competing forums involved: that is, one set of rules applies to determine the legitimacy of state court adjudication, while different considerations shape the contours of federal court jurisdiction.(11) To confuse matters more, the Court's staunch endorsement of tribal court adjudicatory power has been offset somewhat by its expansive definition of federal question jurisdiction in Indian country,(12) and by its increasingly restrictive statements about the scope of tribal governmental power over non-Indians.(13) In disputes over the bounds of state adjudicatory power, the Court has held that state courts cannot adjudicate on-reservation disputes involving either a non-Indian plaintiff and an Indian defendant(14) or an Indian plaintiff and Indian defendant;(15) in such situations only tribal court adjudication is permissible. If the plaintiff is a tribe or an individual Indian suing a non-Indian, however, Supreme Court cases suggest that state courts must adjudicate the controversy.(16) In lawsuits involving multiple parties and multifaceted contacts both on and off the reservation, the rules become less clear, and broad swaths of concurrent tribal and state court adjudicatory jurisdiction appear to be emerging.(17) In contrast to the rules developed for state court adjudication, the holdings of several recent cases have instructed federal courts to require that remedies in tribal courts be exhausted in seemingly all lawsuits involving Indians, on-reservation contacts, or a disputed tribal power.(18) This Article focuses on the rules developed for state and federal courts to determine the scope of their respective adjudicatory jurisdictional powers in lawsuits relating to Indian country.(19) After reviewing the major Supreme Court decisions in this area, this Article asserts that both the lower courts and the Supreme Court itself have converted erroneously those holdings into per se rules of judicial access that depend on nothing other than the identity of the litigants. …