Title

Choosing Tribal Law: Why State Choice-of-Law Principles Should Apply to Disputes with Tribal Contacts

Abstract

This article considers a problem in Indian law that has been much commented upon but little explored: When a state court exercises jurisdiction over a case with tribal contacts, what law should govern? While the Supreme Court has developed a detailed set of rules dictating whether cases with tribal contacts should be heard in a state or tribal forum, it has devoted almost no attention to the question of which law should apply once a forum has been chosen. Thus, many state courts have simply assumed, without explicit consideration of the issue, that state law should apply to any case over which they have jurisdiction, even when one or more of the parties is Indian and relevant events took place in Indian country.

This article challenges that assumption. It argues that, under the choice-of-law principles most states follow, tribal law would and should ordinarily govern many of the cases with tribal contacts that are heard in state court. Rejecting common arguments against state-court application of tribal law, this article argues that such a practice will not present insurmountable practical difficulties, nor will it undermine tribal autonomy. In fact, because state choice-of-law principles are characteristically flexible and allow for fact-specific determinations, they are ideally suited to balancing the often-conflicting interests of states, litigants, and tribes. Further, state-court application of tribal law would help tribes to expand their sphere of influence — allowing tribal standards of conduct to govern cases in which the tribe has a stake, regardless of the forum in which those cases are heard.

Disciplines

Civil Rights and Discrimination | Conflict of Laws | Indigenous, Indian, and Aboriginal Law | Litigation

Date of this Version

March 2006