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Unpublished Paper
Federal Preemption: A Roadmap for the Application of Tribal Law in State Courts
ExpressO (2010)
  • Jackie A Gardina, Vermont Law School
Abstract

This Article contends state courts are not necessarily free to apply state law when the state court is exercising concurrent adjudicative jurisdiction with tribal courts. Indian law principles of pre-emption direct state courts to apply tribal law in certain cases. A guiding principle emerges; if a tribe has legislative jurisdiction over the dispute then tribal law ordinarily must be applied. In these instances, a state’s laws, including its choice of law rules, are preempted by federal common law because their application interferes with the federal government’s and the tribe’s interest in promoting tribal self-government, including the tribe’s ability to create and have their laws applied to disputes over which they have jurisdiction.. In short, states lack legislative jurisdiction. This Article differs in a significant respect from other articles addressing the application of tribal law in state courts. Some commentators have argued that state courts should incorporate tribal law into their traditional choice of law analysis. While this argument is certainly viable, it fails to recognize the primacy of tribal law and tribal interests in certain instances. The forum bias inherent in state choice of law rules provides limited protection to a tribe’s sovereignty interest. To the extent these rule can be bypassed, they should be.

Keywords
  • preemption,
  • tribal law,
  • conflict of law
Disciplines
Publication Date
2010
Citation Information
Jackie A Gardina. "Federal Preemption: A Roadmap for the Application of Tribal Law in State Courts" ExpressO (2010)
Available at: http://works.bepress.com/jackie_gardina/1/