The Jurisdictional “Haze”: An Examination of Tribal Court Contempt Powers Over Non-Indians

BY Joseph Chilton

Recently, in the case of In re Russell, the Cherokee Tribal Court confronted the thorny issue of criminal contempt­. The court ruled that because all courts’ criminal contempt powers are inherent, they fall outside the scope of Oliphant. This Recent Development argues, however, that while imprecise facets of Oliphant and contempt law would make it appropriate for the Cherokee Tribal Court to claim power over summary criminal contempt prosecutions of non-Indians in some circumstances, the court’s blanket decree that criminal contempt is always within a tribal court’s jurisdiction runs counter to current law.

Part I presents the facts of the Cherokee Tribal Court’s order in In re Russell as the backdrop for a discussion of the interplay between contempt law and tribal court jurisdiction. Part II provides a brief overview of tribal criminal court jurisdiction under the Supreme Court’s ruling in Oliphant. Part III surveys the history of contempt law, explaining the sometimes subtle differences between the types of contempt proceedings and how they are jurisdictionally determinative in tribal courts. Part IV applies the principles of Oliphant and contempt law to In re Russell, explaining why the Cherokee Tribal Court stepped beyond its jurisdictional limitations in the case. Part IV concludes by setting forth ways in which tribal courts can, consistent with Oliphant, enforce their authority through their contempt powers.

DOWNLOAD PDF | 90 N.C. L. Rev.1189 (2012)