Turtle Talk

Grand Christensen has posted “Tribal Court Judgments” on SSRN.

Here is the abstract:

Does a state court have to enforce a judgment issued by a tribal court? In 1991 the Arizona Supreme Court surveyed the current treatment of tribal court judgments and concluded that a majority of courts “extend[ ] the application of the full faith and credit clause” to decisions rendered by tribal courts. Just fifteen years later the Southern District of Florida castigated the Miccosukee Tribe for making the same representation; reasoning that “the clear majority of states addressing the issue have concluded that Indian tribes” are outside of the Full Faith and Credit Statute.

This Article corrects the judicial record. First, it actually surveys the split among state laws and concludes that most states that have considered the issue treat tribal court judgments as enforceable beyond the traditional comity extended to judgments from foreign courts, although not all of these states describe this recognition as full faith and credit. Second, it makes a normative argument, suggesting that the Supreme Court’s recent decision in a relatively obscure bankruptcy case, Lac du Flambeau v. Coughlin, actually resolves the conflict and mandates that state courts extend full faith and credit to tribal court judgments. Finally, the Article considers the limited enumerated powers of Congress and the federal courts, to suggest that while states must give full faith and credit to tribal court judgments, tribes are free to decide for themselves whether to reciprocally recognize state court judgments.

The implications are profound. The judicial record is replete with hundreds of cases, across dozens of states, searching for guidance on the scope of the Full Faith and Credit Statute when applied to Indian tribes. There is a circuit split. There are federal courts refusing to comply with nineteenth century Supreme Court precedent that has never been overturned. The congressional response has been piecemeal, requiring full faith and credit in specific circumstances, without ever articulating a standard for the recognition of other tribal court judgments. This Article unifies history and practice, statute and precedent, to articulate a single consolidated theory of the recognition of tribal court judgments.