Justice and the Outsider: Jurisdiction Over Non-Members in Tribal Legal Systems

A quarter of a century ago, the Supreme Court issued its opinion in Oliphant v. Suquamish Indian Tribe holding that tribes had no criminal jurisdiction over non-Indians. Since that time, the Court has progressively limited tribal criminal, civil, and regulatory jurisdiction over those that are not enrolled members of the tribe. While the decisions have a veneer of history and precedent, their legal basis is extremely thinso much so that Justice O'Connor called a 2001 decision "unmoored from our precedents." This trend is one of the most important developments in Indian law. It is the focus of sustained attention by scholars, tribes, attorneys, and legislators. A decision regarding criminal jurisdiction over nonmember Indians spurred a congressional reversal in 1991, and the Supreme Court has just heard arguments in a case addressing the nature of this legislative action. Congress, moreover, is debating a broader legislative fix as to civil jurisdiction.