Service of Process on Indian Reservations

The choice of topics for the Blogfolio is intentionally eclectic. Herewith the fruit of research we did for a client several years ago on the admittedly obscure but surprisingly interesting topic of service of process on Indian reservations.

Service of process on Indian reservations has long confused United States process servers. Many service firms avoid Indian reservations altogether, while others approach the issue with trepidation, half-fearing that they are going to be chased off the reservation at bow-and-arrow point. The reality is that successful service can be effectuated if one appreciates one simple fact: Indian tribes enjoy sovereignty over their reservations.

The Constitution establishes that Native American tribes are unique entities that resemble states in some respects and foreign countries in others. The history of Indian sovereignty over the intervening years has been checkered to say the least, but the past thirty years have seen a redress of the balance in favor of tribal autonomy. That autonomy includes the existence of tribal police and tribal courts, whose jurisdiction generally preempts the authority of the governments of the states in which the reservations are situated.

This is the origin of the difficulties inherent in service of process on Indian reservations. The process server desiring to serve a subpoena on a reservation in most cases possesses no authority to effectuate service. The case is akin to an American process server wanting to serve an American subpoena in France, an action that impinges upon French sovereignty. Although the fact is little known outside the legal profession, having a subpoena from one court system does not grant the right to serve that subpoena anywhere. In the example of an American subpoena needing to be served in France, the service must be effectuated by a French process server operating according to French law. The process whereby the subpoena is made over to the French courts is known as domestication. Moreover, domestication applies to out-of-state subpoenas as well as international ones: a California subpoena to be served in Arizona must go through the Arizona courts before it can be served.

As the mechanics of domestication vary from state to state and country to country, so do different tribes have different systems for service of process. The scenario that turns up most frequently is one in which the service documents are forwarded to the tribal court. The court then domesticates the subpoena, at which point it is entrusted to the reservation’s own process server for delivery.

A second scenario allows for non-resident servers of process to effect service on the reservation, although not in the way in which service is ordinarily performed. The tribal authorities must still be consulted, but these reservations employ no process server of their own. Therefore, once the documents have been domesticated, the non-resident server is allowed onto the reservation, but with an Indian escort, who guides the process server to the subject, and then off the reservation. For the process server, this scenario has the advantage of providing first-hand knowledge that the service was properly effectuated.

A third option, inconvenient but sometimes necessary, is serving a reservation resident when he is not on tribal lands. This usually requires a surveillance operation to determine when and where the subject can be found off the reservation, but, at times, that may be simper than having to go through tribal channels. Of course, if the subject is not someone who routinely goes off the reservation, this option is not viable.

There are a couple last-ditch approaches to the problem as well. The first is the option of certified mail. That, however, comes with all the flaws attached to any service by mail – the most obvious of which is that one cannot be absolutely sure that the documents reached the subject. This is why, although it is a legal option in many jurisdictions, service by mail is generally avoided by United States process servers. In the case of tribal lands, service by mail is even more problematic, as most Indian reservations do not have regular United States Postal Service delivery. If iron-clad service is the goal, the mail option should be avoided if at all possible.

By way of last resort, there is one final scenario that may be employed, although it is not always practicable. While state officials have highly limited jurisdiction on Indian reservations, tribal lands do fall under the jurisdiction of the federal government. A federal marshal, therefore, can exercise his authority on an Indian reservation, and his assistance in effecting service on an elusive resident of a reservation can conceivably be enlisted.

While service of process on tribal lands has its interesting complexities, it is hardly baffling. All that is needed to effectuate service is a knowledge of tribal laws and a respectful approach to tribal autonomy. That respect is the key factor; bearing it in mind, most of the difficulties attached to the question disappear.

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