TLJ is inviting scholarly, practitioner, and student submissions addressing legal issues affecting tribal nations and their internal justice systems. Contributions may include tribal court case comments, reflections on tribal systems, the development of tribal law, the value of tribal law, interviews, and teachings. Submissions are due by August 31, 2026, and chosen work will be published by Spring 2027
Marissa Uri has published “Rule 19 and Tribal Representation in Indian Gaming Litigation” in the Stanford Law Review.
Here is the abstract:
Since 1988, when Congress passed the Indian Gaming Regulatory Act (IGRA) into law, many Indian tribes have established gaming as a vital source of economic and political sovereignty. The process envisioned by IGRA, however, has allowed private actors to challenge tribal gaming operations by suing state and federal entities that negotiate the gaming operations with the tribes, rather than the tribes themselves. These third parties have succeeded in legal challenges enjoining tribal gaming without ever making the operating tribe a party to the suit.
Tribes, protected by the well-established doctrine of tribal sovereign immunity, frequently intervene in these suits under Rule 19, arguing that their inability to be joined necessitates dismissal of the case. An emerging disagreement among federal circuit courts underscores the procedural and practical difficulties that courts face in weighing these interests, particularly in assessing whether existing federal or state defendants can adequately represent absent tribal interests such that the case can proceed “in equity and good conscience.” This Note argues that consistent with the deference under Rule 19 case law accorded to other sovereigns, there should be a presumption of dismissal when tribes cannot be joined in discrete gaming challenges due to tribal sovereign immunity. In doing so, this Note examines Indian gaming challenges as a unique form of Administrative Procedure Act litigation and catalogs where federal, state, and tribal gaming interests diverge, underscoring why this divergence poses significant legal and practical threats to tribal sovereignty in a budding area of contemporary Indian law.
Trudel Pare has published “Ensuring Sovereignty in Healthcare: A Comparison of Tribal Healthcare Compacts and Medicaid” in the Yale Law Journal.
Here is the abstract:
This Note examines federal-state and federal-tribe relationships through a comparison of Medicaid and the Indian Health Service (IHS). Analysis of tribal contracting and compacting documents and Medicaid state plans reflects the history of each program: Medicaid is a product of trusting federal-state collaboration, while the IHS reflects a history of distrust between tribes and executive-branch agencies in particular. This finding suggests that IHS compacting and contracting practices have significant lessons for Medicaid as the latter program negotiates with a hostile federal government.
Crispin T. South has published “Let Them Be Tribal Members: Exempting Nonmember Resident Indians from State Taxes” in the Arizona State Law Journal. Here is the abstract:
Under McClanahan v. Arizona State Tax Commission, States are categorically preempted from taxing the income of an Indian who lives within his own Tribe’s reservation and gains his income from reservation sources. Later cases have distinguished McClanahan, holding that the income of Indians who live and work within a different Tribe’s reservation is generally taxable by the State. State income taxation of these non-member resident Indians poses a number of problems for individuals, Tribal governments, and tribal sovereignty as a whole. This Comment argues that to push back against these problems, Tribes ought to enter into membership reciprocity agreements that allow non-member resident Indians to become Tribal members, thus exempting them from state income taxes under McClanahan’s categorical rule.
Emiliana Almanza Lopez has published “Tribal Sovereignty, Sales Tax, and States Interference: Why Tax Compacts May Be the Best Way Forward” in the Minnesota Journal of Law & Inequality. Here is the abstract:
Tribes as sovereigns have the power of taxation. When states seek to impede this power by imposing their own taxes on non-member transactions on Reservations, Tribes must decide if imposing their own Tribal tax outweighs the risk of increased prices deterring business and business partnerships. This is the issue of double taxation. This Note investigates paths of remedy that address the burden of double taxation specific to sales taxes. Specifically, it looks at tax preemption, litigation, and policy. Preemption is difficult, and the existing case law framework on state tax preemption in Indian Country is complex, fact specific, and generally favors the state. Current federal policies fail to address this issue, and states are unlikely to preempt their own taxes without gaining something in return. Tribe-state tax compacts offer a compromise that releives some of the burden borne by Tribes, but also requires concessions. This Note argues that while imperfect, these tax compacts may be the best remedy to double taxation in Indian Country and offers suggestions for how these binding agreements between sovereigns can be used to enforce state respect for Tribal sovereignty.
Here:
A Historical Review of Congressional Plenary Power and Tribal Treaties and the Implications Following Herrera
Skye Hosch Taylor
Unethical Business Practices Plague Native American Cultures and Economies – Solutions to the Ineffectiveness of the Indian Arts and Crafts Act
Benjamin Amoroso Sinder
A Survivor’s Tale: How the Northern and Eastern Districts of Oklahoma Survived the Tidal Wave Collision of McGirt v. Oklahoma
Darbi E. Robertson
Winner, Best Appellate Brief in the 2024 Native American Law Student Association Moot Court Competition
Molly Gunther and Kevin Burdet
Melissa Uri has published “Rule 19 and Tribal Representation in Indian Gaming Litigation” in the Stanford Law Review.
Here is the abstract:
Since 1988, when Congress passed the Indian Gaming Regulatory Act (IGRA) into law, many Indian tribes have established gaming as a vital source of economic and political sovereignty. The process envisioned by IGRA, however, has allowed private actors to challenge tribal gaming operations by suing state and federal entities that negotiate the gaming operations with the tribes, rather than the tribes themselves. These third parties have succeeded in legal challenges enjoining tribal gaming without ever making the operating tribe a party to the suit.
Tribes, protected by the well-established doctrine of tribal sovereign immunity, frequently intervene in these suits under Rule 19, arguing that their inability to be joined necessitates dismissal of the case. An emerging disagreement among federal circuit courts underscores the procedural and practical difficulties that courts face in weighing these interests, particularly in assessing whether existing federal or state defendants can adequately represent absent tribal interests such that the case can proceed “in equity and good conscience.” This Note argues that consistent with the deference under Rule 19 case law accorded to other sovereigns, there should be a presumption of dismissal when tribes cannot be joined in discrete gaming challenges due to tribal sovereign immunity. In doing so, this Note examines Indian gaming challenges as a unique form of Administrative Procedure Act litigation and catalogs where federal, state, and tribal gaming interests diverge, underscoring why this divergence poses significant legal and practical threats to tribal sovereignty in a budding area of contemporary Indian law
Stacy L. Leeds, Samantha Phillips, and Micayla Bledsoe Downes have published “Proactive Solutions in Implementing Tribal Digital Sovereignty” in The Journal of Community Informatics.
Here is the abstract:
This article argues that Tribal Nations must move rapidly from ad hoc digital practices to comprehensive legal and governance frameworks that fully implement Tribal Digital Sovereignty. Drawing on lessons from Indian gaming and other economic sectors, it shows how vendor-driven arrangements, weak contracts, and incomplete jurisdictional assertions have historically created long-term vulnerabilities around data, infrastructure, and regulatory authority. The article reframes digital systems—cloud services, health information technologies, broadband and spectrum, AI tools, and data-intensive enterprises—as core sites of sovereignty rather than as technical back-office functions. It contends that delays in regulating these domains allow external actors to harden jurisdictional and economic advantages that are difficult to unwind.
To provide practical guidance, the article proposes four interlocking “buckets” of legal infrastructure: Tribal codes and regulations that assert digital jurisdiction; contracts and agreements that safeguard data ownership, limit sovereignty waivers, and require portability; easements and infrastructure arrangements that preserve Tribal authority over physical and virtual networks; and business registration systems that capture entities operating digitally in Tribal territories. It situates these tools within Indigenous Data Sovereignty frameworks such as the CARE Principles and emerging Tribal AI governance efforts, including early government policies that embed cultural values and guard against data exfiltration. The article further emphasizes workforce development, procurement strategies, and collaborative regional or inter-Tribal models as necessary conditions for sustained digital self-governance. Taken together, these approaches aim to ensure that Tribal sovereignty is exercised as powerfully in digital spaces as in the governance of land, resources, and institutions.
Geoffrey Heeren has posted “Native Nations, Noncitizens, and the Supremacy Clause,” forthcoming in the Brooklyn Law Review, on SSRN.
Here is the abstract:
Native Nations and noncitizens have often prevailed in the face of adverse state action by asserting treaty rights, arguing that state actions are preempted by federal authority, or relying on federal common law. These claims are largely rooted in the Supremacy Clause of the United States Constitution, rather than Native Nations’ or noncitizens’ rights of their own. At the same time, the Supremacy Clause jurisprudence that developed as Native Nations and noncitizens raised these claims coincided with the growth of federal “plenary power” in both areas, depriving immigrants and Native Nations of strong rights of their own when faced with federal action.
The Supreme Court’s approach to the Supremacy Clause in immigration and federal Indian law is inconsistent with the textualist and originalist method preferred by its majority. Existing scholarship has extensively examined the Supremacy Clause through a textualist lens, but has not addressed federal Indian law and immigration law. This is a particularly stark omission since much Supremacy Clause litigation centers on the experience of Native Nations and noncitizens. This article offers a new framework for Supremacy arguments in Immigration and federal Indian law. Under a textualist reading of the Supremacy Clause, the Court should alter its doctrine concerning self-executing treaties, return to an approach grounded in the inherent sovereignty of Native Nations rather than federal common law, and abandon its strongest form of “plenary power preemption.”
Finally, the article situates these supremacy claims within the larger landscape of the Court’s retrenchment from anti-subordination principles and growing solicitude toward states’ rights. Moving forward, preemption claims may be less effective for the immigrants or Native Nations that assert those claims against states. Moreover, preemption arguments reify the experiences of noncitizens and Native Nations by translating them into arguments about federal power. In contrast, rights claims—even when they do not prevail—can mobilize and ground a political strategy for subordinated groups. In this shifting doctrinal landscape, treaty rights claims may be the supremacy arguments most likely to support a multifaceted movement to empower some historically disempowered groups.
Adam Crepelle has published “Applying the Indian Commerce Clause to Indian Commerce” in the Northwestern University Law Review.
Here is the abstract:
Indian country commerce generates tens of billions of dollars annually and is a constant source of litigation. These disputes typically revolve around jurisdictional conflicts: whether states, tribes, or both possess regulatory authority over the business operating in Indian country, particularly those involving non-Indians. Despite numerous court cases, no clear legal framework has emerged, creating pervasive uncertainty regarding fundamental issues, such as state taxation of tribal transactions and the proper forum for resolving Indian country contract disputes. Interestingly, these commercial cases overlook the Indian Commerce Clause—the constitutional provision designed to address such matters.
This Article argues the Indian Commerce Clause prohibits state regulation of Indian country commerce. The clause’s plain text and original understanding support this interpretation. While the Supreme Court departed from this understanding in the late 19th century, it has never adequately justified this shift. During the 1980s, the United States argued the Indian Commerce Clause bars state taxation of tribal commerce, and the Supreme Court rejected this argument with scant judicial reasoning. Consequently, courts continue to rely on ambiguous, fact-specific tests that undermine tribal sovereignty and economic development.
This Article proposes a revitalized application of the Indian Commerce Clause, advocating for a clear, constitutionally grounded framework. By categorically preempting state intrusion into Indian country commerce, this approach would provide the certainty necessary for tribal economic self-determination to flourish. This Article demonstrates how such a framework would resolve the current jurisdictional chaos, offering specific guidance for its implementation and ultimately promoting a more just and equitable relationship between tribes and states.
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