Matthew L. M. Fletcher (Michigan State University College of Law) has posted A Unifying Theory of Tribal Civil Jurisdiction (Arizona State Law Journal, Forthcoming) on SSRN. Here is the abstract:
This paper addresses one of the most dynamic and useful areas of American Indian law. I situate my arguments between two competing and intractable theories dominating the field – the consent theory, which limits tribal jurisdiction to those who expressly consent to tribal governance; and the territory theory, which expands tribal jurisdiction to anyone in Indian country. The consent theory unnecessarily undercuts tribal authority on Indian lands, assuming without evidence that nonconsenters will not receive a fair shake in tribal forums. Meanwhile, the territory theory unnecessarily exposes nonconsenters to Indian authority on non-Indian owned land, where tribal power is weakest and least justified.
I propose a simpler solution that unites the two theories and brings realism to the discussion. Where activities occur on Indian lands, tribal jurisdiction should be presumed subject to a simple fairness test any court could conduct, but that is currently (and ironically) barred by the Supreme Court. The reality is that tribal governments are already successfully exercising this power, but the common law is lax in its recognition of tribal governance, generating unpredictability and confusion.