This is the second post that presents the Sections from the 2018 American Indian Law Annual Meeting draft that deals with tribal powers over nonmembers. The previous post presented the Black Letter and Comments from § 34, Civil Regulatory and Adjudicatory Authority over Nonmembers.

Black Letter and Comments from Tentative Draft No. 2:

§ 35. Tribal-Court Exhaustion Rule

(a) Whether a tribe has the power to exercise civil jurisdiction over nonmembers should be first examined by tribal courts, subject to the exceptions set forth in subsection (c). 

(b) Nonmembers must exhaust all tribal remedies, including appellate review, before seeking federal-court review. 

(c) Tribal-court exhaustion is excused if:

(1) exhaustion would be futile because of the lack of an adequate opportunity to challenge the tribe’s jurisdiction;

(2) the action violates express federal jurisdictional prohibitions; 

(3) an assertion of tribal jurisdiction is motivated by the court’s desire to harass or is conducted in bad faith; or 

(4) tribal jurisdiction is plainly lacking so that the exhaustion of tribal remedies would serve no purpose other than delay.


a. Purpose of the rule. The Supreme Court has recognized the federal government’s commitment to a policy of supporting tribal self-government and self-determination. That policy favors a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to decide the factual and legal bases for the challenge. Moreover, the orderly administration of justice in the federal court is served by allowing a full record to be developed in the tribal court before either the merits or any question concerning appropriate relief is addressed. Finally, adjudication of matters impairing reservation affairs by any nontribal court also infringes upon tribal law-making authority, because tribal courts are best qualified to interpret and apply tribal law.

Exhaustion of tribal-court remedies also encourages tribal courts to explain to the parties the precise basis for their conclusions on whether they have jurisdiction and provides other courts with the benefit of their expertise in such matters in the event of further judicial review. The existence and extent of a tribal court’s jurisdiction requires a careful examination of tribal sovereignty and the extent to which that sovereignty has been altered, divested, or diminished, as well as a detailed study of relevant statutes, executive-branch policy as embodied in treaties, and administrative or judicial decisions.

b. Tribal appellate courts. The federal policy of promoting tribal self-government encompasses the development of the entire tribal-court system, including appellate courts. At a minimum, exhaustion of tribal remedies means that tribal appellate courts must have the opportunity to review the determinations of the lower tribal courts. For example, a tribal appellate court’s determination that the tribal court has jurisdiction satisfies the exhaustion requirement. Until tribal appellate review is complete, federal courts should not accept a challenge to tribal-court jurisdiction.

c. Federal subject-matter jurisdiction. After tribal remedies have been exhausted, federal courts may decide as a matter of federal law whether a tribe has the power to exercise civil jurisdiction over nonmembers. Indian tribes occupy a unique status under federal law, including statutes, treaties, administrative regulations, and judicial decisions. Federal courts long have decided questions concerning the extent to which Indian tribes have retained the power to regulate nonmembers, relying upon federal law as the governing rule of decision. The question whether an Indian tribe retains the power to compel nonmembers to submit to the civil jurisdiction of a tribal court is one that must be answered by reference to federal law and is a “federal question” under 28 U.S.C. § 1331.

d. Prudential rule, not jurisdictional. Tribal-court exhaustion is required as a matter of comity, not as a jurisdictional prerequisite. As such, there are exceptions to the exhaustion rule. Moreover, an inquiring court must make a particularized examination of the facts and circumstances attendant to the dispute in order to determine whether comity suggests a need for exhaustion of tribal remedies as a precursor to federal-court adjudication.

e. Exceptions. Obvious cases in which exhaustion is excused include instances in which the tribe provides no forum to address a challenge to the tribe’s jurisdiction. See subsection (c)(1). Other instances include federal statutes that foreclose tribal jurisdiction over a particular subject area. See subsection (c)(2).

Courts also have limited the exception for harassment and bad faith to an inquiry into the actions of the tribal court itself, not the parties. See subsection (c)(3). Comity principles suggest that a broader inquiry into the actions of the parties would undermine the trust that federal courts and Congress have accorded to tribal justice systems.

In cases in which tribal-court jurisdiction over a nonmember is plainly lacking, the exhaustion of tribal remedies before a federal court proceeds with an action would only lead to delay. Thus, in cases in which it is plain that a tribal court lacks jurisdiction, exhaustion is not required. See subsection (c)(4).

The presumption favoring exhaustion of tribal remedies is rarely excused when a colorable claim of tribal-court jurisdiction has been asserted. For example, lower courts have held that civil disputes arising out of the activities of nonmembers on Indian lands almost always require exhaustion if they arise on Indian lands or involve the tribe or tribal members or citizens as defendants.

f. Allegations of bias and incompetence. Allegations of local bias and incompetence of the tribal forum are not among the exceptions to the exhaustion requirement established by the Supreme Court. To recognize these exceptions would be contrary to the congressional policy promoting the development of tribal courts. Moreover, the Indian Civil Rights Act, 25 U.S.C. § 1302, provides nonmembers with various protections against unfair treatment in the tribal courts.

Matthew L.M. Fletcher

Reporter, American Indian Law Restatement

Matthew L.M. Fletcher is the Harry Burns Hutchins Collegiate Professor of Law at University of Michigan Law School. He teaches and writes in the areas of federal Indian law, American Indian tribal law, Anishinaabe legal and political philosophy, constitutional law, federal courts, and legal ethics.  He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians and sits as the Chief Justice of the Pokagon Band of Potawatomi Indians and the Poarch Band of Creek Indians.

Wenona T. Singel

Associate Reporter, American Indian Law Restatement

Wenona T. Singel is an Associate Professor of Law at Michigan State University College of Law and the Associate Director of the Indigenous Law & Policy Center. She served as Deputy Legal Counsel for the office of Governor Gretchen Whitmer from January of 2019 through January of 2021, advising Governor Whitmer on tribal-state affairs. Her other professional activities have included serving as the Chief Appellate Justice for the Little Traverse Bay Bands of Odawa Indians and service as the Chief Appellate Judge for the Grand Traverse Band of Ottawa and Chippewa Indians. She is a magna cum laude graduate of Harvard College, and she received a J.D. from Harvard Law School.

Kaighn Smith, Jr.

Associate Reporter, American Indian Law Restatement

Kaighn Smith, Jr., leads Drummond Woodsum’s nationwide Indian Law Practice Group. He has represented Indian nations and their enterprises for more than 25 years in cases that focus on jurisdiction and sovereignty disputes, labor and employment relations, complex transactional disputes, environmental matters, and fishing and water rights.


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