Jackie Gardina has posted “Federal Preemption: A Roadmap for the Application of Tribal Law in State Courts,” forthcoming in the American Indian Law Review. [Also available at BEPRESS.]
Here is the abstract:
This article contends that state courts are not necessarily free to apply state law when the state court is exercising concurrent adjudicative jurisdiction with tribal courts. Instead 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, 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 laws and have those laws applied to disputes over which they have 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 that the state’s choice of law rules can be bypassed, they should be.
Turtle Talk 