My paper, “Resisting Federal Courts on Tribal Jurisdiction,” forthcoming in the University of Colorado Law Review‘s 2010 symposium issue, is available for download on SSRN.
The abstract (if you want to call it that):
This paper is part of a call for a paradigm-shifting re-examination by Indian tribes and Indian people about their place in the American constitutional structure. For tribal advocates to prevail in the federal judiciary, they must force federal judges to rethink everything they know about federal Indian law. There are at least two ways to do this. Tribal advocates and American Indian law scholars must first establish a baseline of knowledge and information about the realities of Indian Country in the 21st century. This work is nascent and ongoing, if not burgeoning, but frankly is far from enough. A second strategy must be a strategy itself, litigation with an eye toward presenting the best cases before the federal judiciary and the Supreme Court. As any litigator knows, facts win a case, not general truths.
In this paper, I argue a theory of tribal consent and resistance to federal government control embodied in the Supreme Court’s assertion of federal court supervision of tribal court civil jurisdiction. The pure federal common law cause of action expounded by the Supreme Court in 1985’s National Farmers Union v. Crow Tribe is ripe for reexamination, if not outright reversal. Tribes never consented to such a broad-based assertion of federal court jurisdiction, although tribes could consent if asked. I propose methods by which tribes and their appellate counsel can resist such jurisdiction, and perhaps in the same breath establish a meaningful recognition by the Supreme Court of the legitimacy of tribal justice systems.
Comments appreciated, as this is still a draft.
Turtle Talk 
I think this is an important paper, which I hope is widely read in Indian Country. I believe that if tribal courts continue to operate on the assumption that federal law is supreme, they will end up incorporating colonial federal law into tribal law and create the appearance of implicit consent to imperial domination. The issue of criminal jurisdiction over non-Natives is vital to the establishment of legitimate, competent courts. Even if certain tribes did not wish to exercise such jurisdiction immediately, it is incumbent upon Congress to allow tribal courts to be something other than Jim Crow subordinate justice systems, good enough for Indians but not Americans. It could be an optional assumption, a recognition by the U.S. that tribal courts do have full legal jurisdiction when they are prepared to exercise it. Such legislation could and should include the proviso that anyone charged in federal or tribal court should have the option of transferring the case to the other jurisdiction, a development that would require both forums to compete on the basis of racial fairness and procedural rights. This could serve as the “Middle Ground” between peoples that affirms and recognizes cultural differences on the basis of equality and respect.