Every now and again we like to highlight an interesting tribal court opinion. Personally, I’ve been waiting for many years to see an opinion on this subject, answered in the negative by the court.
Here is the opinion in Port Gamble S’Klallam Tribe v. Hjert.
This case seems almost easy given that the tribal constitution self-limits tribal jurisdiction by referencing federal law, suggesting that Oliphant could control this case (see page 4, quoting the PGST Const.).
What about tribes that do not have such language?
Turtle Talk 
You have not read or summarized the opinion correctly. The Port Gamble S’Klallam Tribal Court of Appeals actually concludes that a non-Indian could consent to tribal court criminal jurisdiction, but that the consent in this particular case was not valid. The Court distinguished Oliphant and its progeny based on (1) no clear statement from the U.S. Supreme Court as to whether it was referring to personal or subject matter jurisdiction in that line of cases, and (2) the U.S. Supreme Court’s express recognition in Duro v. Reina, 495 U.S. 676 (1990) that the Supreme Court had never addressed consent (“We have no occasion in this case to address the effect of a formal acquiescence to tribal jurisdiction that might be made, for example, in return for a tribe’s agreement not to exercise its power to exclude an offender from tribal lands.” Duro, 495 U.S. at 689).
You also have overlooked several EBCI cases that address this specific point. EBCI, like Port Gamble, notes that SCOTUS never distinguished between personal and subject matter jx.
All true. One of these days, I’ll post them. Thanks.
Incidentally, at least two scholars are writing articles about this subject, Paul Spruhan and J. Matthew Martin.