From the Federal Circuit Bar Journal (17 Fed. Circuit B.J. 235 (2008)):

Here’s an excerpt from “Indian Nations and the Federal Government: What Will Justice Require in the Future?”, a part of the 20th Annual Federal Circuit Judicial Conference:

The Court of Federal Claims has asked me to take a few minutes to step back, look out toward the horizon, and even dream a bit, about what the field of Indian law might be and I’m honored to oblige as best I can.

I believe that Indian tribes would receive the high justice they deserve from our courts if judges were to understand two legal doctrines in their full context and to understand them in two different ages. What I will propose is easy to state but difficult to apply. Yet it is realistic and can be done largely or completely by those judges able to invest the time.

I wish that judges could know tribal sovereignty and the trust relationship. I wish further that they could know them under the circumstances at treaty time and under the circumstances today. And I wish that they couldfeel them as well as know them. Lawyers and judges apply most legal rules mechanically. But some patches of law, because of their sensitive content, histories, and human faces, hold elevated places in the law. These are the terrains of the law that wefeel -free speech, due process in a murder trial, freedom from racial discrimination and others-the ones that touch a judge’s soul, the ones that make a judge put in the time, reflect, worry, and insist on pure justice, however that may cut in a particular case. Tribal sovereignty and the trust rightfully belong in that company, the law’s highest company.

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Much of the law of tribal sovereignty comes back to tribal courts. This applies even to cases that do not directly involve tribal court jurisdiction. Should a federal court uphold a tribal tax, zoning ordinance, or fishing or hunting regulation? Non-Indians may be affected. The tribal courts inevitably must be considered because, if the tribe has the substantive lawmaking authority, then disputes will go to tribal court. Can the federal court trust the tribal court?

To a person, state and federal judges know both state and federal courts and how they work. It’s second-nature. But very few know much about tribal courts. Given that, it’s human nature for federal and state judges to be concerned about upholding the jurisdiction of courts that may be incompetent or unfair. This is important: Tribes own 58 million acres in the 48 continuous states-an area larger than Minnesota-and the tribal land base is steadily growing.