Civil Adjudicatory Jurisdiction
Courts adjudicating civil matters connected with Indian country must make the threshold decision of whether subject matter jurisdiction exists or, in the case of federal courts, whether it should be exercised even when present. The core issues involve the standards of review applicable in federal court proceedings following exhaustion of tribal court remedies where the latter court's jurisdiction is challenged; the extent of a federal court's obligation to defer to either existing or possible tribal court proceedings when federal question or diversity jurisdiction is asserted over a dispute; and whether a tribe's or state's civil adjudicatory jurisdiction is measured by standards comparable to those used to determine regulatory jurisdiction. The increasing activity of tribal courts underscores the need to clarify not only the standards to be used in determining whether their judgments should be recognized in federal and state courts, but also whether tribal courts have a federal law-mandated obligation to extend full faith and credit to federal and state court judgments. These issues are among the most important and controversial in Indian law.
Three principal jurisdictional bases exist for initiating federal court actions over controversies arising in Indian country and involving tribes or their members: a special form of federal question jurisdiction under 28 U.S.C. § 1362 available only to Indian tribes, general federal question jurisdiction under 28 U.S.C. § 1331, and diversity of citizenship jurisdiction under 28 U.S.C. § 1332. It appears settled in this regard that tribes are not “persons” for purposes of diversity jurisdiction, absent incorporation under section 17 of the Indian Reorganization Act 1 or their own laws. 2 The only practical significance of 28 U.S.C. § 1362 now derives from its interaction with 28 U.S.C. § 1341, which generally prohibits the exercise of federal jurisdiction over claims relating to the operation of state tax laws. Far more significant are two United____________________