Florey: Tribal Land, Tribal Territory

In Tribal Land, Tribal Territory, forthcoming in the Georgia Law Review, Katherine Florey (University of California–Davis, Law) reflects on the past and future of tribal governments’ territorial jurisdiction in the United States. In this article, Florey constructs a comprehensive account of how tribal land status came to take on its current significance in federal jurispurdence, where the law stands today, and how federal Indian law doctrine might creep toward a more territorial understanding of tribal power. 

This article takes two incidents – tribes in South Dakota asserting jurisdiction over COVID-19 checkpoints on state highways in Indian country and the United States Supreme Court’s decision concerning Oklahama reservation status and tribal jurisdiction in McGirt v. Oklahoma – and uses these developments as a starting point for reflecting on the relationship between tribal land and tribal territory.

Florey aims to undertake a comprehensive account of the varied strands of doctrine the court has put forth on this subject, including the limits on tribal regulatory authority over fee land under Montana v. United States, the ever-shifting right to exclude that the Court has characterized in numerous and inconsistent ways, and the uncertain relationship between the two.

The article first provides historical perspective on the role that land status has played in the law governing tribal authority, arguing that tribes possessed considerable control over their territory even as they lost ownership or possession of much of their ancestral land. Then, it attempts to depict the modern views of tribal jurisdiction and untangle the many strands that make up the Court’s current position on tribal land status. Finally, it looks to current developments and proposes a reimagination of the controlling doctrines that would allow tribes to claim a more comprehensive authority over the spaces within their borders.

Florey argues current doctrine concerning tribal land and territory, both rooted in the ideology of allotment and riddled with ambiguities and inconsistencies, does tribes a severe disservice and that now is an opportune time for courts to move beyond their narrow fixation on tribal land toward a broader understanding of tribal territory. This article argues there are compelling reasons to push the law toward a territorial vision of tribal sovereignty. Florey suggests changes that could come in two ways – (1) by expanding and clarifying the tribal right to exclude and (2) by reconceptualizing Montana as a tailored protection for non-Indian property rights rather than a principle that restricts all exercises of tribal sovereignty.