Philip H. Tinker of Kanji & Katzen, PLLC, will publish his article, In Search of a Civil Solution: Tribal Authority to Regulate Nonmember Conduct in Indian Country, in the September 2014 issue of the Tulsa Law Review. This paper establishes a framework for tribal governments to use civil enforcement over non-Indian offenders on their reservations, and discusses various strategies to increase the likelihood for such exercises of tribal authority to survive judicial review. The article is available at: http://ssrn.com/abstract=2396940.
Here is the Abstract:
Violence in Indian Country is epidemic. Tribal governments, which ostensibly have primary responsibility for keeping the peace within their territory, are hampered by restrictive federal laws that prohibit Tribes from exercising criminal authority over non-Indians. This is so even where those non-Indian lawbreakers live on the reservation and commit acts of violence against tribal members. Instead, the federal government is responsible for investigating and prosecuting most on-reservation crime. This irrational system is the product an archaic federal policies dating back to the 19th century that have never been adequate to protect Indian communities.
This paper proposes for tribal governments to take a more active role in enforcing their laws against anyone who enters onto tribal lands. Federal law recognizes that Tribes retain some civil authority over non-Indians, under certain rather limited conditions. In order to maximize the scope of this retained authority, Tribes should adopt comprehensive civil law enforcement codes that are carefully designed to meet the United States Supreme Court’s stringent requirements for the exercise of such authority.