The Supreme Court has, in recent years, developed a detailed set of rules governing whether cases with tribal contacts should be heard in a state or tribal forum. It is therefore all the more remarkable that courts considering such cases have devoted almost no attention to the question of which law should apply once a forum has been chosen. Instead, courts have broadly assumed, without explicit consideration of the issue, that the forum in which the case is brought will apply its own law. Where state courts are concerned, two problems exist with this approach. First, the assumption that state court will apply state law and tribal courts tribal law puts a too-high premium on the plaintiff's initial choice of forum, leading to uncertainty and inefficiency. Second, and more substantively, this approach gives insufficient weight to tribes' sovereign status, because it fails to consider that tribal standards of conduct may be relevant to deciding cases with tribal contacts. This article offers at least a partial solution to these difficulties. It argues that, under the choice-of-law principles followed by most states, tribal law would ordinarily govern many of the cases with tribal contacts that are heard in state court. Wider application of tribal law in state court might help to address these concerns by reducing the jurisdictional friction between states and tribes and permitting tribal interests to be more fully taken into account in deciding cases. Because choice-of-law doctrine is characteristically flexible, it provides an ideal way to balance the interest of tribes, states, and litigants. Further, state-court application of tribal law in such situations would not (as some commentators have assumed) conflict with federal law or with tribal autonomy.

Recommended Citation

Florey, Katherine J. “Choosing Tribal Law: Why State Choice-of-Law Principles Should Apply to Disputes with Tribal Contacts.” American University Law Review 55, no.6 (August 2006): 1627-1696.