Resisting Federal Courts on Tribal Jurisdiction

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This paper is part of a call for a paradigm-shifting re-examination by Indian tribes and Indian people about their place in the American constitutional structure. For tribal advocates to prevail in the federal judiciary, they must force federal judges to rethink everything they know about federal Indian law. There are at least two ways to do this. Tribal advocates and American Indian law scholars must first establish a baseline of knowledge and information about the realities of Indian Country in the 21st century. This work is nascent and ongoing, if not burgeoning, but frankly is far from enough. A second strategy must be a strategy itself, litigation with an eye toward presenting the best cases before the federal judiciary and the Supreme Court. As any litigator knows, facts win a case, not general truths.

In this paper, I argue a theory of tribal consent and resistance to federal government control embodied in the Supreme Court’s assertion of federal court supervision of tribal court civil jurisdiction. The pure federal common law cause of action expounded by the Supreme Court in 1985’s National Farmers Union v. Crow Tribe is ripe for reexamination, if not outright reversal. Tribes never consented to such a broad-based assertion of federal court jurisdiction, although tribes could consent if asked. I propose methods by which tribes and their appellate counsel can resist such jurisdiction, and perhaps in the same breath establish a meaningful recognition by the Supreme Court of the legitimacy of tribal justice systems.


Work published when author not on Michigan Law faculty.