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The Case for 'Expanding' the Abstention Doctrine to Account for the Laws and Policies of the American Indian Tribes
Gonzaga Law Review (2012)
  • Jay Kanassatega, Arizona Summit Law School

The origination and evolution of the abstention doctrine illustrates how the United States Supreme Court has created a workable balance of concurrent federal-state judicial power in circumstances where state law and state policies predominated and accommodated vital federal policy interests. Acknowledging the recent debate among scholars and commentators as to the wisdom of the abstention doctrine, this article advocates in favor of the creation of another application of the doctrine — one that acknowledges both the sovereignty of the American Indian tribes and their democratic governments and the inherent conflict arising from three sovereigns exercising concurrent jurisdiction over the same people, property, and contracts. A seemingly vital federal policy interest, as articulated by Congress’s Indian policy of self-determination, is recognizing the legislative and judicial authorities within Indian tribes and the important governance role they play in Indian Country to formulate and apply the rule of law and administer justice. Identifying an exceptional circumstance to effectuate the nation’s Indian policy through the abstention doctrine presents a unique opportunity to implement effective self-determination for American Indian tribes, as well as government-to-government relations between the Indian tribes, the United States, and the states. Approving a new circumstance for application of the abstention doctrine in Indian Country would provide needed guidance to federal courts (and state courts) to dismiss civil causes of action that encroach on matters better left to the courts of Indian tribes. Such matters include the interpretation of tribal constitutions, statutes, and common law, particularly in the interests of comity. A new exception would also provide a framework to head off the impending conflict between either a federal court or a state court, on one hand, and a tribal court, on the other, by dismissing federal-Indian tribe (and state-Indian tribe) litigation, properly balancing the exercise of judicial power in civil actions among the three jurisdictions, as well as implementing important federal policy interests.

The abstention doctrine is founded on a rich jurisprudence that has been applied to determine which sovereign, the United States or a state, is in the best position to exercise jurisdiction to hear and decide civil disputes involving the same persons, property, or contracts. Part I of this article describes the abstention doctrine, the circumstances in which it has been applied, and the federal policies, interests, and practical considerations that are served by its application. Part II examines the attributes of sovereignty possessed by Indian tribes and is comprised of three sections: (1) a discussion of the attributes of the sovereignty possessed by the Indian tribes as a matter of U.S. law; (2) a discussion of U.S. law, Supreme Court precedent, and national domestic Indian policy as pertaining to concurrent civil jurisdiction in Indian Country; and (3) a discussion of what this means with respect to three sovereign entities possessing authority over the same people and the same territory. Given the sovereignty that Indian tribes possess, Part III identifies some areas of submerged concurrent jurisdictional conflict and discusses how the development of another circumstance within the abstention doctrine — one narrowly tailored to the courts of an Indian tribe — could serve as a scheme for the exercise of concurrent civil jurisdiction among the three sovereigns in Indian Country.

  • abstention doctrine,
  • courts of Indian tribes,
  • civil jurisdiction in Indian Country,
  • Indian law,
  • concurrent jurisdiction,
  • Indian self-determination,
  • Indian tribal sovereignty,
  • United States v. Montana,
  • Public Law 280,
  • judicial federalism,
  • Indian policy,
  • full faith and credit
Publication Date
July 6, 2012
Citation Information
Jay Kanassatega, The Case for "Expanding" the Abstention Doctrine to Account for the Laws and Policies of the American Indian Tribes, 47 Gonz. L. Rev. 589 (2011/12).