Tribes and Trilateral Federalism: A Study of Criminal Jurisdiction

Abstract

This Article uses criminal jurisdiction to describe tribal political status in our national constitutional order. In 2022, Congress and the Supreme Court altered the already byzantine scheme of criminal jurisdiction on tribal land through the Reauthorization of the Violence Against Women Act ("VAWA") and Oklahoma v. Castro-Huerta, respectively. By instating both tribal and state jurisdiction over a common class of offenders without any structure for coordinating prosecutions, VAWA and Castro-Huerta have jeopardized the rule of law and necessitated a new kind of inter-sovereign cooperation-in other words, they created a federalism problem. The Article adapts existing theories of federalism to understand the import of these federal interventions, illuminate tribal political status in American constitutionalism, and suggest federalism values (e.g. innovation, local self-determination, minority empowerment, effective dissent) to resolve tribe-state conflict.

Keywords: federal Indian law, federalism, criminal jurisdiction, tribal justice