A Tale of Two Sovereigns: Danger and Opportunity in Tribal-State Court Relations
Washburn University School of Law
March 11, 2013
Tulsa Law Review, Vol. 47, No. 3, 2012
As the many Native American nations gamer economic strength and come into increasing contact with state and local forums, so do the chances that those forums will come face to face with questions of tribal law. The challenges posed by an AngloAmerican court answering questions of tribal law present both danger and opportunity. Opportunities come with strengthened inter-sovereign relationships and with the acknowledgement of tribal legal potency by other forums. Dangers inhere in crosscultural illiteracy and particularly in the temptation to ignore abstention principles and to attack tribal jurisdiction. It may be possible for tribal courts to gain some of the advantages and ameliorate some of the dangers by entering into a variety of cooperative arrangements with state courts. In an arrangement of true parity, these options may also provide avenues for tribal courts to obtain assistance in answering important questions of state law in tribal court cases.
The purpose of this article is to bring together the various options for tribal and state court cooperation for the analysis of tribal law questions. They may include cooperative organizations, abstention, certification, and even formal consultation agreements between particular courts, such as the recent, historic accord between the high courts of New York and New South Wales. The article further concludes that each option has costs and benefits, and that individual tribal nations must each undertake their own costlbenefit analyses to determine which action - or none at all - is the most likely to benefit tribal sovereignty and institutions based on their goals, history, relationships with state and local entities, and even relationships between individual leaders in the state and tribal justice systems.
Number of Pages in PDF File: 34
Keywords: tribal law
Date posted: March 12, 2013