Elizabeth Reese has posted “The Other American Law,” forthcoming from the Stanford Law Review, on SSRN.
Here is the abstract:
American legal scholarship focuses, almost exclusively, on state and federal law. However, there are an additional 574 federally recognized tribal governments within the United States whose laws are largely ignored. This article brings to the fore the exclusion of tribal governments and their laws from our mainstream conception of “American law” and identifies this exclusion as both an inconsistent omission and a missed opportunity. Tribal law should be no less “American law” than federal and state law. Tribal law is also made, enforced, and followed by American citizens, and tribal governments have a distinct place as a sub-sovereign within the American system of overlapping sovereigns. Nor is it clearly less important, as tribes govern millions of Americans and as much land as California. And yet, tribal law is excluded from our shared conception of “American law”—and thereby our research projects, classrooms, and even conversations. This exclusion perpetuates the “othering” of tribal law and governments and harmful present day misunderstandings or invisibilities for both Indian people and their governments. Tribal governments were previously delegitimized and described as “lawless” in order to legitimize legal theories of conquest. But tribal law is real, and it is time to end its marginalization. Moreover, tribal law is vast, varied, and can be innovative. As demonstrated by the three examples in this piece, tribal governments struggle with the same kinds of problems that the other American sovereigns face, and their similarities, differences, successes, failures, innovations, etc. can inform other American sovereign’s work or public law questions more broadly. Omitting tribal law from American legal scholarship is not only a troubling inconsistency, it is a missed opportunity to tap a potentially valuable resource—a disservice to the search for good government ideas. Tribal law belongs in the mainstream study of American law and legal systems. This article places it there.