Excerpted From: Grant Christensen, Article III and Indian Tribes, 108 Minnesota Law Review 1789 (April 2024) (373 Footnotes) (Full Document)

GrantChristensenSince 1896 the Supreme Court has been clear that “the existence of the right in Congress to regulate the manner in which the local powers of [an Indian tribe shall be exercised does not render such local powers Federal powers arising from and created by the Constitution of the United States.” When Congress has remained silent, the federal courts lack the authority to examine the exercise of an Indian tribe's inherent power even when an Indian tribe is alleged to have violated an individual's constitutional rights. Because tribes exercise a sovereignty that antedates the Constitution, absent a treaty or statute the exercise of inherent tribal power does not create a federal question subject to the jurisdiction of the federal courts.

Congress does not always remain silent. For example, in 1968 Congress enacted the Indian Civil Rights Act (ICRA), requiring tribal governments to respect a set of individual rights. But in 1978 the Supreme Court held that even when Congress recognizes individual rights, the violation of those rights by an Indian tribe does not raise a federal question subject to the jurisdiction of the federal courts unless Congress has also crafted a federal remedy to vindicate that federal right. The Court reasoned that “however useful” a federal remedy might be to “securing compliance” with the federally created right, the creation of a common law judicial remedy “plainly would be at odds with the congressional goal of protecting tribal self-government.”

Despite this precedent, in 1985 the Court held in National Farmers Union Insurance Cos. v. Crow Tribe of Indians that whether a tribal court has jurisdiction over a non-Indian for conduct occurring on its reservation creates a justiciable federal question that arises under the federal common law. The right not to be subject to the exercise of a tribe's inherent power, and the concomitant federal court remedy permitting federal judges to construct tribal court jurisdiction whole cloth without any limiting principle by Congress, apparently raised an implied federal question. The Court went so far as to suggest that when Indian tribes are involved it is not just Congress, but also the federal courts that have “plenary” authority.

This Article takes the position that Article III of the United States Constitution does not extend the judicial power to review a tribe's exercise of its inherent authority absent a positive source of federal law, and therefore National Farmers was wrongly decided. The exercise of a tribe's inherent power does not create a federal question until Congress has intervened to affirmatively create a right to contest the exercise of that power in a federal court. This restrained interpretation of federal question jurisdiction properly limits the exercise of the judicial power by the federal courts while also accomplishing Congress's clearly articulated goals of respecting tribal sovereignty and encouraging tribal self-determination.

The consequences of properly limiting the use of the judicial power to review the exercise of an Indian tribe's inherent sovereignty are profound: it would fundamentally remake Indian law. Perhaps most importantly, the Supreme Court lacked subject-matter jurisdiction under Article III to decide some of the most important parts of the Indian law canon; from Oliphant's prohibition on tribal court criminal jurisdiction over non-Indians, to Montana's implied limitation on civil jurisdiction over non-tribal lands, to Cabazon's recognition of a tribe's right to operate gaming facilities that violate a state's gambling ordinances. I argue not that Oliphant, Montana, and Cabazon were wrongly decided--but that they should not have been decided at all.

An exploration of the federal courts' jurisdiction over Indian tribes is long overdue. Professor Judith Resnick has been calling for a more exacting examination of the judicial power in cases involving Indian tribes for years: “The bountiful literature of federal courts' jurisprudence does not, however, consider problems of the relationship between Indian tribes, the federal government, and the states.” This has allowed the creation of a judicial plenary power to go unnoticed and virtually uncritiqued despite its clear violation of the limiting principles of Article III. This Article responds to Professor Resnick's call for more exploration of the tribal sovereign and is intended to provoke questions at the core of federal courts theory and scholarship about the meaning of Article III and the role of tribes as a third sovereign in American jurisprudence.

Part I of this Article begins by explaining the inherent Article III limitations over cases involving Indian tribes and their exercise of inherent power. Because Indian tribes are not persons, the addition of an Indian tribe as a party in federal litigation destroys diversity jurisdiction. This leaves federal question jurisdiction as the exclusive Article III basis for cases involving Indian tribes in a federal court. Part II applies this analysis to National Farmers. It argues that Article III jurisdiction does not extend to common law claims that generally question the ability of a tribe to exercise its inherent sovereignty. While recognizing that federal courts have the authority under Article III to review a tribe's assertion of its inherent powers when the claim raises a constitutional question, allegedly violates a treaty provision, or is authorized by a federal statute--the federal courts do not have the power to create causes of action or implied remedies that are not authorized by some positive source of law. Part III justifies this limitation on the basis of the sui generis nature of tribal sovereignty, which raises countervailing congressional interests in promoting both sovereignty and tribal self-government. In short, tribes are unique and the judicial power of the federal courts to create the common law is inimitably circumscribed in deference to the competing sovereign interests of tribal government. Part IV applies these conclusions to the existing Indian law canon. The Article suggests three principal implications resulting from Article III's denial of subject-matter jurisdiction related to the inherent exercise of tribal power. First, that some of the foundational Indian law cases in the canon should have been dismissed for lack of jurisdiction. Without judicial intervention, a space is created permitting Indian tribes to exercise their inherent powers unless Congress takes affirmative steps to authorize judicial review. Second, permitting Indian tribes to exercise their inherent powers absent intervention by Congress restores the traditional federalism balance between tribal, state, and federal sovereigns that was first articulated by Chief Justice Marshall in the 1830s. Finally, appropriately limiting the use of the judicial power under Article III will change the questions we ask in Indian law cases that make their way to the federal courts. The Article finishes with a few conclusory observations.

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Federal courts are courts of limited jurisdiction. They are permitted to exercise the judicial power only over those cases and controversies contemplated by Article III. There is no judicial plenary power. Adhering to this simple constitutional maxim will fundamentally alter Indian law by limiting the overreach of the federal courts and remaking the field with appropriate deference to the tribal sovereign. The federal courts cannot create or imply a federal common law cause of action absent some enabling authority from a source of positive federal law: the Constitution, a treaty, or federal statute. National Farmers was wrong when it was decided, and it should be reversed in favor of a more restrained interpretation of Article III.

By limiting federal question jurisdiction over Indian tribes exercising their inherent rights to those cases that present questions of clearly established federal law, the federal courts would be respecting the longstanding congressional preference for protection of tribal sovereignty while appropriately limiting the exercise of the judicial power to those cases and controversies contemplated by Article III. While that limitation will necessarily keep some cases out of the federal courts and will change the questions asked by others, it will reestablish the original tribal-state-federal federalism envisioned by Chief Justice Marshall and restore a proper and supportable interpretation of the Constitution's grant of judicial power to the federal courts.

Absent some enabling authority the federal courts may not create new federal causes of action when those causes of action threaten the exercise of an Indian tribe's retained sovereignty. Unwarranted judicial intrusions upon tribal power are judicial activism at its worst and have been championed by those Justices who otherwise profess to believe in a more limited role for the federal courts. Reinvigorating Article III challenges to prevent federal court review of the exercise of tribal inherent power is consistent with both the text of Article III and the intent of Congress.

Associate Professor of Law at Stetson University College of Law. Professor Christensen earned his J.D. from Ohio State and his LL.M. in Indigenous Peoples Law and Policy from the University of Arizona.