Peter Nicolas, American-Style Justice in No Man's Land, 36 Ga. L. Rev. 895 (2002), https://digitalcommons.law.uw.edu/faculty-articles/297
Georgia Law Review
Article III courts, Indian country, jurisdiction
This Article seeks to fill the gap in the existing literature by exploring the constitutional limits on federal court subject matter jurisdiction in the context of civil disputes arising in Indian Country and civil disputes arising elsewhere involving Indian tribes, tribal entities, and tribal members.
Part II of this Article catalogues the universe of "no forum" and "biased forum" jurisdictional quagmires with respect to civil disputes arising in Indian Country or those arising elsewhere involving Indian tribes, tribal entities, and tribal members, examining the existing legal obstacles that prevent federal, state, and tribal courts from exercising jurisdiction over the "no forum" cases, and those obstacles to federal jurisdiction over "biased forum" cases.
Part III of this Article examines the constitutional authority for and the ways in which Congress has historically expanded the jurisdiction of Article III courts and created specialized, non-Article III courts both to address geographic gaps in adjudicative jurisdiction and to provide a check against local court bias.
Part IV of this Article applies these principles to the "no forum" and "biased forum" problems in Indian Law, and demonstrates that Congress has the authority to eradicate these problems by either creating specialized, non-Article III courts or expanding the jurisdiction of the existing federal courts.
This Article concludes that if Indian tribes wish to avoid further ad hoc erosion of their sovereignty by federal and state courts, they must work with Congress to create federal solutions to the "no forum" and "biased forum" problems. The goal of this Article is by no means to advocate a particular method of solving these jurisdictional problems. Rather, this Article seeks to accomplish two goals, one policy-oriented and the other jurisprudential. The policy goal is to provide an exhaustive analysis of the constitutional scope and limitations of federal judicial power so as to enable tribal and congressional leaders to solve the "no forum" and "biased forum" problems with full knowledge of the available options. The jurisprudential goal is to provide a much needed catalyst for increasing cross-pollination between the parallel fields of Federal Courts and Indian Law, in the hopes that the latter will not only continue to develop in its own right but will be integrated into and will enrich the former.