Federal Preemption: A Roadmap for the Application of Tribal Law in State Courts

This article contends that state courts are not necessarily free to apply state law when the courts are exercising concurrent adjudicative jurisdiction with tribal courts. Instead, Indian law principles of preemption direct state courts to apply tribal law in certain cases. A guiding principle emerges from the preemption analysis: if a tribe has legislative jurisdication over the dispute, tribal law must ordinarily be applied. In these instances, a state's laws, including its choice-of-law rules, are preempted by federal common law because their application interferes with the federal government's and the tribes' interest in promoting tribal self-government, including the tribes' ability to create laws and have those laws applied to disputes over which they have jurisdiction. This article differs in a significant respect from other articles addressing the application of tribal law in state courts. Some commentators have argued that state courts should incorporate tribal law into their traditional choice-of-law analysis. While this argument is certainly viable, it fails to recognize the primacy of tribal law and tribal interests in certain instances. The forum bias inherent in state choice-of-law rules provides limited protection to tribes' sovereignty interest. To the extent that the states' choice-of-law rules can be bypassed, they should be.