Home > Journals > Michigan Law Review > MLR > Volume 125 > Issue 2 (2026)
Abstract
Federalism has long been celebrated for its ability to foster policy innovation, transforming states into “laboratories of democracy.” Yet, federalism discourse has largely neglected Indian tribes, the third sovereign in the American constitutional order. Tribes regularly implement novel policies. However, tribal policy innovation is hindered by uncertainty over whether tribes or states govern Indian country activities.
The most influential framework for determining the scope of tribal versus state regulatory power in Indian country is derived from the Supreme Court’s opinion in California v. Cabazon Band of Mission Indians—the case that launched Indian gaming. Cabazon held that tribes cannot permit an activity if the surrounding state prohibits it, but they can permit an activity if the surrounding state regulates it. For example, tribes in California can authorize gaming because California regulates it. However, Utah’s gaming ban prevents tribes within its borders from permitting casinos. The distinction between regulatory and prohibitory is often ambiguous; thus, state specificity invites endless litigation that stifles tribal policy experimentation.
To remedy this uncertainty and fully integrate tribes into the federal system, this Article proposes a “Cabazon-plus” paradigm. Under Cabazon-plus, if any state regulates an activity, all tribes would have exclusive regulatory authority over that activity. This paradigm provides the jurisdictional certainty vital for tribal self-determination and policy innovation. Furthermore, this Article argues Cabazon-plus will ignite tribal economies and benefit state economies, validating tribal sovereignty as a feature—not a bug—of a dynamic federal system.
Recommended Citation
Adam Crepelle,
Tribal Federalism: Expanding the Indian Gaming Paradigm,
125
Mich. L. Rev.
223
(2026).
Available at:
https://repository.law.umich.edu/mlr/vol125/iss2/3