Tribal governments are empowered to establish court systems to adjudicate disputes arising within their jurisdictions.  This authority is an essential component of autonomy and self-government for Native Americans, and tribal court judgments are generally entitled to full faith and credit in other American courts.  As such, litigation in tribal court can be a relatively expedient method of dispute resolution for tribal parties in many circumstances.

Tribal law does not always provide remedies for wrongs perpetrated against parties on tribal land, however.  For example, tribal law may not recognize certain types of tort and contract actions commonly available in non-Native jurisdictions.  Similarly, tribal law may impose more restrictive statutes of limitation than those of the tribal party’s host state.  Thus, tribal parties may from time to time find it to their advantage to litigate their claims in state courts.

If the tribal party is located in a Public Law 280 state,1 then taking advantage of an adjoining state’s laws may be as simple as filing an action in the state court system and litigating the claim as any other non-Native party would.  But what if the tortfeasor or breaching party has no meaningful contact with the tribal party’s host state other than their tribal dealings, and is therefore not subject to personal jurisdiction there? Since federal courts generally cannot hear civil actions of tribal parties unless the case presents a federal question,2 this avenue of recovery is also foreclosed to tribal plaintiffs injured by tortious conduct or breach of contract.  This could leave the tribe in the undesirable position of litigating its claims in a distant forum.  The tribal plaintiff would be subject to increased expense, litigating in an unfamiliar (and perhaps unfavorable) jurisdiction, and reliance on untested counsel with whom the tribe has no standing relationship.

This problem may present itself when, for example, a Nevada gaming business sells goods or services to tribal gaming facilities in Minnesota and misappropriates money or other property to itself.  If the tribal government does not recognize actions such as breach of contract, unjust enrichment, fraud, or conversion, or the tribal statute of limitations has already run, then tribal court may not be an option for the plaintiff.  In this example, if the Nevada defendant conducts no business in Minnesota outside of tribal boundaries (as may well be the case if the foreign business is a gaming-related vendor), the defendant could argue it is not subject to personal jurisdiction in Minnesota.

Unfortunately, even in Public Law 280 states, it is unclear whether the state can assert personal jurisdiction over foreign defendants acting within tribal borders.  Public Law 280 certainly affords states subject matter jurisdiction over such disputes, but is silent as to whether it grants them personal jurisdiction over foreign defendants acting solely on tribal property.3

Nevertheless, a good case can be made that Public Law 280 implies the assertion of personal jurisdiction over foreign defendants acting on tribal land.  Public Law 280’s civil arm only grants subject matter jurisdiction to states for civil wrongs occurring on tribal land—an area that the state traditionally has no power over.  But, what good is the grant of subject matter jurisdiction to state courts if they could never assert personal jurisdiction over a defendant, unless the defendant so happens to be served in the state, or resides or operates there?  Given that much of the personal jurisdiction case law concerns itself with the imposition of personal jurisdiction only where the defendant’s in-forum actions are related to the dispute, it would be odd indeed if Public Law 280 only allowed state courts to assert jurisdiction where the defendant’s contact with the forum state is unrelated to that dispute.

Moreover, the state’s long-arm statute may afford an alternate basis for the assertion of personal jurisdiction over an out-of-state defendant.  Long arm statutes are frequently written broadly to grant personal jurisdiction over defendants to the extent that their actions are subject to subject matter jurisdiction in the state.  Since Public Law 280 affords several states with subject matter jurisdiction to hear disputes arising out of conduct on tribal land, it may be argued that the long arm statute reaches into the state’s tribal areas, such that the state court can assert personal jurisdiction over the foreign defendant.

As an added (and potentially powerful) bonus, Public Law 280’s civil provisions prevent the state court application of tribal law to the dispute.4 If the state’s laws are more favorable to the tribal party, then the tribe can essentially foreclose the application of the unfavorable tribal law to the dispute simply by asserting their claim in state court.  If the tribe can successfully argue for the exercise of personal jurisdiction over the defendant, it will have two forums to choose from, and can file its claim wherever the facts of the case suggest will provide the best return for its litigation dollars.

1 These states are: Alaska, California, most of Minnesota, Nebraska, most of Oregon, and Wisconsin. 28 U.S.C. § 1360(a).↩
2 28 U.S.C. § 1362; see also Miccosukee Tribe of Indians v. Kraus-Anderson Contr. Co., 607 F.3d 1268, 1276 (11th Cir. 2010) (explaining that unincorporated tribes cannot assert diversity jurisdiction in federal court).↩
3 28 U.S.C. § 1360(a).↩
4 See 28 U.S.C. § 1360(c) (preventing state courts from applying “inconsistent” tribal law).↩

August 27, 2013