Columbia Law Review Note on State Discrimination against Indians

Shira Kieval has published “Discerning Discrimination in State Treatment of American Indians Going Beyond Reservation Boundaries” in the Columbia Law Review. Here is the abstract:

Generally, federal Indian law cases focus on jurisdiction inside of Indian Country. Occasionally, however, challenges arise about the application of state law to American Indians outside of Indian Country. In 1973, and again in 2005, the Supreme Court announced that “[a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State.” While this statement is fairly accurate historically, it provides practically no direction for states, tribes, or lower courts to apply the rule in specific instances. Since American Indians are members of three distinct American political groups—Indian tribes, the states within which they reside, and the United States—how is discrimination to be discerned? How explicit must federal law be, and how much flexibility do states have in interpreting Congress’s directives? How is the Supreme Court maxim to be applied in the context of state-tribe negotiations, which have become a practical necessity for coexistence but are only occasionally addressed by federal legislation? This Note looks to the roots and rationale of the Supreme Court pronouncement, situating it inside of a larger picture of how states may, must, and cannot treat American Indian state citizens. Ultimately, it provides a framework and four specific rules for applying the Supreme Court pronouncement in disputes regarding the power of states over American Indians beyond the borders of Indian Country, and the rights of those American Indians vis-` a-vis the states.