Noah Feldman on the Impact of Western Sky-Inspired Litigation on Tribal Sovereignty

Noah Feldman has posted “Tribes Don’t Get a Pass on Federal Law” on Bloomberg. HT How Appealing.

Despite the title (oh those editors!), tribal sovereignty isn’t mentioned until the last two paragraphs:

[Judge] Wilkinson tried to duck the deepest question in the case: Would it be all right to take federal law out of the picture altogether if Indian law applied instead? In this case, in practice, the recourse to tribal law would’ve been empty. But what if the Cheyenne River Sioux did have a robust arbitration mechanism in place or rules to guide an arbitration?

Under the decision, that shouldn’t matter: The court held that any agreement that rejects the application of federal law can’t be enforced. At the margin, this decision may actually reduce Indian tribes’ sovereignty. Whether it will help protect consumers from predatory lenders will depend on how other courts cite it.

These are good points. They could be tempered with a couple minor quibbles, mostly that the Cheyenne River Sioux Tribe, as I understand it, had nothing to do with Western Sky’s dispute resolution strategies. Perhaps anything the court said about that’s tribes sovereignty has to be dicta, and my reading of the opinion didn’t see anything like that (unlike the Seventh Circuit’s decision in Jackson).

This will be good fodder for consideration at the ASU e-Commerce meeting later this week….


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