Turtle Talk

Alexandra Fay has posted “Coordinated Sovereignty: Federal Tools for Resolving State-Tribe Conflict,” forthcoming in the Wisconsin Law Review, on SSRN.

Here is the abstract:

American federalism describes the constitutional relationships between three kinds of sovereign political bodies: the federal government, the fifty states, and 575 federally recognized Indian tribes. Yet federalism scholarship often elides the third sovereign, instead exclusively focusing on the relations between states and the federal sovereign. Previously, I argued that trilateral federalism should frame federal approaches to issues involving tribal governance. This Article continues that work, with a structural examination of federal statutory interventions to resolve conflicts between America’s domestic sovereigns, the states and tribes. 

State-tribe conflict is a perennial feature of federal Indian law. This Article engages with examples across various substantive fields of law—including family law, criminal justice, gaming, taxation, and public health—to articulate four models of federal statutory intervention: (1) Federal Preemption, (2) Opt-In, (3) Guided Compacting, and (4) Noninterference. The Article considers their relative strengths, weaknesses, and appropriate contexts. Finally, the Article applies these models to the case study of traffic enforcement in Oklahoma Indian country, a major site of tribe-state conflict in the wake of the Supreme Court’s 2020 decision in McGirt v. Oklahoma.