Justice and the Outsider: Jurisdiction Over NonMembers in Tribal Legal Systems

Over the last quarter century, the Court has progressively limited tribal jurisdiction over both non-Indians and Indians who are not members of the tribe. The Article examines these decisions to show that they owe less to established Indian law doctrine than to two assumptions: first, that tribal courts will be unfair to outsiders and second, that jurisdiction over outsiders has little to do with tribal self-government. It then tests these assumptions against an examination of all cases decided by the Navajo Nation appellate courts over the last thirty-five years and the history and contemporary situation of tribal legal systems. This investigation reveals that with respect to the first assumption, the Navajo appellate courts are remarkably balanced in hearing cases involving outsiders. Non-Navajos win 47.4 percent and lose 52.6 percent of the cases in which they appear before the courts. The decisions, moreover, appear to be qualitatively balanced, even with respect to cases and issues that might appear particularly vulnerable to bias. This latter finding is supported by a more limited review of decisions by other tribal courts. In contrast with the second assumption, cases involving non-members appear to be crucial for tribal self-government. They comprise a disproportionately large number of cases before the appellate courts, and form an equally disproportionate role in maintaining judicial legitimacy and fairness. This is particularly true given the origin of tribal courts as tools both of non-Indian acculturation and control and tribal resistance, and the current struggle of tribes to thrive under radically changed circumstances without losing their cohesion as distinct communities