Success Rating
Highly actionable because tribes don't need to WIN a court case to START exercising tribal court jurisdiction — they already have it. Build tribal courts NOW, assert jurisdiction, and create facts on the ground.
YOU CAN DO THIS RIGHT NOW
Per the DOJ Office of Tribal Justice (2000/2023 memo) and Walker v. Rushing, 898 F.2d 672 (8th Cir. 1990): Tribes in P.L. 280 states already retain concurrent criminal jurisdiction. P.L. 280 added a state layer but never removed the tribal layer. You do not need permission from California, Congress, or any court to operate a tribal court system. The authority exists NOW from inherent sovereignty.
Establish or expand tribal court
Codify tribal ordinances
Assert jurisdiction in cases
The Legal Argument
1. A Court Is Sovereign Authority Over Territory
A court is not merely a judicial proceeding — it is a physical manifestation of sovereign authority over territory. When a state court exercises jurisdiction over matters arising on tribal land, it asserts that the land falls within the state's domain. That assertion is legally false. Trust land — held by the United States for a tribe — is by definition outside the ordinary domain of state law.
2. Bryan: Adjudicatory, Not Regulatory
Bryan v. Itasca County drew a critical distinction: P.L. 280 granted only adjudicatory jurisdiction (courts hearing disputes), NOT regulatory jurisdiction (governing conduct). But when a state court enforces criminal law against a tribal member for on-reservation conduct, it is doing more than adjudicating — it is imposing the state's normative order on tribal territory. It is defining what conduct is permissible on that land. That is regulation. That is encumbrance.
3. Trust Land and State Law Are Incompatible
You cannot simultaneously hold land in federal trust and subject it to state regulatory norms. The trust is a federal instrument that preempts state authority. State courts exercising jurisdiction on trust land must treat it as if it were state territory — an impossible legal fiction that contradicts the foundational trust status of Indian Country.
4. Walker v. Rushing: Tribal Courts Never Lost Authority
Walker v. Rushing, 898 F.2d 672 (8th Cir. 1990): P.L. 280 "did not itself divest Indian tribes of their sovereign power to punish their own members." Tribal authority arises from inherent sovereignty, not federal delegation. P.L. 280 added a state concurrent layer but never removed the tribal layer. Tribes have always had the power to operate their own courts.
5. Lexington v. Smith: Tribal Courts Over Nonmembers Too
Lexington Insurance Co. v. Smith, 117 F.4th 1106 (9th Cir. 2024), cert denied May 2025: The 9th Circuit affirmed that tribal courts have jurisdiction over nonmember businesses in consensual commercial relationships with the tribe (Montana Exception 1). This is settled law in California. Tribal courts can adjudicate disputes with any business that does business on tribal land.
6. NCICS Proves It Works in Mendocino County
The Northern California Intertribal Court System (NCICS) already operates in Mendocino County, serving the Hopland Band of Pomo Indians, Cahto Tribe of Laytonville Rancheria, and Coyote Valley Band of Pomo Indians. These tribes have codified ordinances and their own police. Tribal courts are already working in P.L. 280 California. The model exists. It's proven.
Simulation: How to Get Tribal Courts Back
You don't need to win a case first. Start building NOW.
Establish or Expand the Tribal Court System
This can happen TODAY. Per DOJ memo + Walker, tribal courts have concurrent authority. Draft a tribal court code, appoint judges, establish procedures. Use NCICS as a model. Consider an intertribal court coalition if resources are limited.
When Cases Arise, Assert Tribal Court Jurisdiction First
For any dispute involving tribal members on tribal land — civil or criminal — file in tribal court first. Establish the tribal court as the primary forum before the state court can act.
If State Court Attempts Jurisdiction — Move to Dismiss
File motion to dismiss in state court arguing tribal court has primary/exclusive jurisdiction. Cite Bryan (adjudicatory only, not regulatory), Walker (concurrent tribal authority), and the DOJ memo.
Use Lexington v. Smith for Commercial Disputes
For any dispute with a business operating on tribal land — contracts, insurance, property damage, employment — assert tribal court jurisdiction under Montana Exception 1. Lexington (2024, cert denied 2025) is binding 9th Circuit law.
Build a Body of Tribal Court Jurisprudence
Every case the tribal court handles competently and fairly strengthens the argument for expanding tribal jurisdiction. Build the record. Demonstrate that tribal courts are functioning, fair, and capable. This record will be critical evidence in the Consent (Argument III) and Trust Doctrine (Argument VI) challenges.
Petition for TLOA § 1162(d) Federal Jurisdiction
Follow Hoopa Valley's model: petition for concurrent federal criminal jurisdiction under the Tribal Law and Order Act. Does NOT require California's cooperation. Creates a three-way concurrent system (tribal + state + federal) where the tribe exercises primary practical jurisdiction.
Use Tribal Court Record to Support Legislative Retrocession
Once the tribal court has an operational track record, use that evidence to support retrocession legislation. "We don't need California's courts — we have our own, and they work." This converts the legal argument into political leverage.
Strengths
- + Bryan already drew the line at regulatory authority
- + DOJ memo and Walker confirm concurrent tribal authority EXISTS
- + Lexington v. Smith (2024) is fresh 9th Circuit law
- + Builds tribal court capacity regardless of litigation outcome
- + NCICS in Mendocino County proves the model works
- + TLOA § 1162(d) is available without state cooperation
- + No permission needed to start — act from inherent sovereignty
Weaknesses
- - State courts have exercised P.L. 280 jurisdiction for 70 years
- - The adjudicatory/regulatory distinction is sometimes blurred
- - Criminal jurisdiction challenges are harder than civil
- - Requires tribal court infrastructure investment
- - State courts may resist, leading to jurisdictional conflicts
MOST IMMEDIATELY ACTIONABLE
Don't wait for litigation — build tribal courts now. The legal authority already exists. Then use the other arguments (Consent III, Trust Doctrine VI) to push state courts out. This is the argument where you create facts on the ground while the legal battle unfolds.