Tribal Jurisdiction—A Historical Bargain

Matthew L.M. Fletcher and Leah Jurss

This Article intends to compare the modern practices and understandings of nonmembers doing business with Indian nations and inside of Indian country with the analogous practices and understandings of non-Indians engaged in similar activities in the period before the modern Indian self-determination era. Though non-Indians and nonmembers occasionally object to tribal jurisdiction, the long history of tribal governance and economic regulation demonstrates that nonmembers have received and continue to receive the benefit of a bargain that places them under considerable tribal regulation in exchange for access to tribal markets. For nonmembers to argue that they have not consented to tribal jurisdiction, at any stage of American history, is to ignore the very real economic benefits the nonmembers have received from their Indian country business activities. It is to claim something for nothing.