American Indian Tribes and the Consent Paradigm

Paper Summary:

In an article entitled "The Consent Paradigm: Tribal Sovereignty at the Millennium," published in the Columbia Law Review, author Scott Gould (1996) asserts that federal Indian law has changed to the extent that presently, the nature of tribal power has been transformed from "land-based sovereignty" to "sovereignty based upon consent". The author outlines the Supreme Court's ruling in Montana vs. United States,concerning the authority of the Crow Tribe to regulate hunting and fishing by non-Indians on lands within the Tribe's reservation that were owned in fee simple by non-Indians. This is the benchmark case concerning tribal civil authority over nonmembers. This case was used in the application of another case, Strate, involving an automobile accident between an employee of A-1 Contractors -- a non-Indian owned company with its principal place of business outside the reservation, who was under contract to a wholly-owned corporation owned by the Tribes -- and a non-member, non-Indian (Fredericks), who was the widow of a deceased member of the Tribes. The court's application of the Consent Paradigm to the Strate case provides evidence that it was determined to justify the doctrine on a case-by-case basis.

From the Paper:

"Petitioners argued that the "exhaustion rule," as stated in National Farmers and reiterated in Iowa Mutual, justified the requirement of exhaustion of tribal remedies before allowing federal court challenges to tribal court jurisdiction on prudential considerations because "[c]ivil jurisdiction over such activities [of non-Indians] presumptively lies in the tribal courts unless affirmatively limited by a treaty provision or federal statute." (Iowa Mutual, 480 U.S. at 18.) The Strate Court, however, found this presumption to be reversed, and basing its holding on Montana, relied on an absence of congressional direction enlarging tribal court jurisdiction."

More papers on American Indian Tribes and the Consent Paradigm:

• Research Paper # 114519 : "Algonquin Indian Tribes and the French"
• Research Paper # 105912 : "American Indian Tribes"
• Book Review # 66232 : "North American Indian Ecology"

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