The Indigenous nations of the United States have long been subject to federal policy. Since the Civil Rights Era, that federal policy purportedly has been to encourage self-determination and tribal sovereignty. One of the hallmarks of self-determination is the development of Tribal legal systems, which have been actively encouraged and funded by the federal government. As a result, Tribes have been exercising their jurisdiction in ways that were not contemplated decades ago. As Tribes have expressed their sovereignty through their court systems, it is not surprising that states sometimes feel that their own jurisdiction is threatened. This conflict creates a need for increased understanding, communication, and cooperation between Tribal and state governments. The extent to which Tribal-state cooperation succeeds or fails depends in large part upon their ability to understand each other’s philosophical, legal, and historical realities. Cultural barriers to communication can, if left unattended, prevent meaningful cooperation from taking place. Historical myths and prejudices about the First Peoples of the United States threaten to keep Indigenous communities impoverished and marginalized. These myths stem from first contact, and form the root of modern, anti- Tribal policies, legislation, and court decisions. If we agree that Tribal-state relationships should evolve, we must first accept that the historical animosity and distrust are the products of a powerful legacy of colonization, genocide, and oppression

Kowalski, Tonya

Organick, Aliza G.

English

DigitalCommons@University of Nebraska

University of Nebraska - Lincoln DigitalCommons@University of Nebraska - Lincoln Court Review: The Journal of the American Judges Association American Judges Association 2009 From Conflict to Cooperation: State and Tribal Court Relations in the Era of Self-Determination Aliza G. Organick Washburn University School of Law Tonya Kowalski Washburn University School of Law Follow this and additional works at: https://digitalcommons.unl.edu/ajacourtreview Organick, Aliza G. and Kowalski, Tonya, "From Conflict to Cooperation: State and Tribal Court Relations in the Era of Self-Determination" (2009). Court Review: The Journal of the American Judges Association. 283. https://digitalcommons.unl.edu/ajacourtreview/283 This Article is brought to you for free and open access by the American Judges Association at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Court Review: The Journal of the American Judges Association by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. Footnotes1. This essay refers to Indigenous peoples of the United States by anumber of names, including First Peoples, Indigenous nations,Indigenous peoples, and Tribes.2. See generally JEFF CORNTASSEL & RICHARD C. WITMER, FORCEDFEDERALISM: CONTEMPORARY CHALLENGES TO INDIGENOUSNATIONHOOD 3-83 (2008).3. See MARYANN CUSIMANO LOVE, BEYOND SOVEREIGNTY: ISSUES FOR AGLOBAL AGENDA 11-13 (2d ed. 2003). 4. Id.5. Angelique A. EagleWoman (Wambdi Awanwicake Wastewin), ThePhilosophy of Colonization Underlying Taxation Imposed upon TribalNations within the United States, 43 TULSA L. REV. 43, 44 (2007).6. S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 22 (2ded. 2004).7. Id.8. ROBERT N. CLINTON, CAROLE E. GOLDBERG & REBECCA TSOSIE,AMERICAN INDIAN LAW: NATIVE NATIONS AND THE FEDERAL SYSTEM11-26 (4th ed. 2003).9. Id.10. Id.11. Id. at 23-49.12. See RICHARD J. PERRY, FROM TIME IMMEMORIAL: INDIGENOUS PEOPLESAND STATE SYSTEMS 13-17 (1996).13. 31 U.S. 515 (1832).14. Hope M. Babcock, A Civic-Republican Vision of “DomesticDependent Nations” in the Twenty-First Century: Tribal SovereigntyRe-envisioned, Reinvigorated, and Re-empowered, 2005 UTAH L. REV.443, 503.The Indigenous nations1 of the United States have long beensubject to federal policy. Since the Civil Rights Era, thatfederal policy purportedly has been to encourage self-determination and tribal sovereignty. One of the hallmarks ofself-determination is the development of Tribal legal systems,which have been actively encouraged and funded by the federalgovernment. As a result, Tribes have been exercising their juris-diction in ways that were not contemplated decades ago. AsTribes have expressed their sovereignty through their court sys-tems, it is not surprising that states sometimes feel that theirown jurisdiction is threatened. This conflict creates a need forincreased understanding, communication, and cooperationbetween Tribal and state governments. The extent to whichTribal-state cooperation succeeds or fails depends in large partupon their ability to understand each other’s philosophical,legal, and historical realities. Cultural barriers to communica-tion can, if left unattended, prevent meaningful cooperationfrom taking place. Historical myths and prejudices about theFirst Peoples of the United States threaten to keep Indigenouscommunities impoverished and marginalized. These mythsstem from first contact, and form the root of modern, anti-Tribal policies, legislation, and court decisions.2 If we agree thatTribal-state relationships should evolve, we must first acceptthat the historical animosity and distrust are the products of apowerful legacy of colonization, genocide, and oppression.Furthermore, Tribal-state tensions result from a clash ofpolitical philosophies and differing worldviews. From the Euro-American standpoint, the concept of national statehoodevolved from the philosophy of natural law, as well as from thepragmatic desire to centralize power and encourage long-dis-tance trade.3 Modern states are also typically characterized bylarge, somewhat diverse populations.4 In contrast, from theIndigenous standpoint, sovereignty is “interwoven with thesocial, spiritual, intellectual, and economic aspects of the com-munities they serve.”5 Historically speaking, Indigenousnations tended to form around kinship ties or other commu-nity-based relationships. They also tended to have “decentral-ized political structures often linked in confederations, andhave enjoyed shared or overlapping spheres of territorial con-trol.”6 These differences can make it difficult for Westerners tocomprehend Indigenous sovereignty.7 Nevertheless, even by thecolonizers’ definition, Indigenous peoples of the emergingUnited States were sovereign entities, and governmentsengaged with them on an international basis.8 There is ampleevidence that early, pre-colonial settlers, the British Crown, andthe fledgling American government dealt with Indigenousnations as coequal sovereigns, recognizing that North Americanlands were already occupied by Indigenous nations.9As with any topic involving Indigenous peoples, Tribal-statecooperative arrangements must be viewed within their histori-cal context. History shows that the hundreds of early treatyrelationships between Indigenous nations and colonial govern-ments recognized the potential for cooperative arrangements inestablishing trade, building alliances, and defining territory.10These relationships remained the status quo while the balanceof power between Indigenous peoples and colonists remainedrelatively balanced. However, as the United States grew inwealth, military might, and population, that balance of powerchanged.11 The colonies—and eventually the states—covetedIndigenous territory for settlement and expansion. Before long,it became evident that the Crown could not control its subjectsin their hunger for Indigenous lands and for gold.12 The UnitedStates Supreme Court made a decisive move that set the tone forTribal-state relations for centuries to come. In the landmarkcase Worcester v. Georgia,13 the State of Georgia attempted toextend its laws and jurisdiction over the Cherokee Nation. TheSupreme Court “unequivocally rejected any role for states . . .in favor of an exclusive federal-tribal relationship.”14 The Courtpremised its holding on inherent Tribal sovereignty vis à vis thehostile, encroaching state, but, as a matter of policy, clearly alsoAliza G. Organick and Tonya KowalskiFrom Conflict to Cooperation:State and Tribal Court Relations in the Era of Self-Determination48 Court Review - Volume 45 C E S S AY 15. Cherokee Nation v. Georgia, 30 U.S. 1 (1831).16. See DAVID E. WILKINS, AMERICAN INDIAN SOVEREIGNTY AND THE U.S.SUPREME COURT: THE MASKING OF JUSTICE 24 (1997).17. Christine Zuni Cruz, Strengthening What Remains, 7 KAN. J. L. &PUB. POL’Y 18 (1997).18. Frank Pommersheim, Tribal Courts: Providers of Justice andProtectors of Sovereignty, 79 JUDICATURE 110, 112 (1995).19. Id.20. Pat Sekaquaptewa, Tribal Courts and Alternative Dispute Resolution,18 BUS. L. TODAY 23, 23-24 (2008).21. Cf. Gabriel S. Galanda, A Need to Know Indian Law, 64 OR. ST. B.BULL. 62, 62 (Nov. 2003).22. See Zuni Cruz, supra note 17, at 19.23. See generally Tribal Law & Policy Institute, Tribal Healing toWellness Courts, http://www.tribal-institute.org/LISTS/drug_court.htm (last accessed June 5, 2009).24. 109 U.S. 556 (1883).25. SIDNEY L. HARRING, CROW DOG’S CASE: AMERICAN INDIANSOVEREIGNTY, TRIBAL LAW, AND UNITED STATES LAW IN THENINETEENTH CENTURY 119 (1994).26. 18 U.S.C. § 1153.27. Philip P. Frickey, Tribal Law, Tribal Context, and the Federal Courts,18 KAN. J.L. & PUB. POL’Y 24, 30-31 (2008).28. E.g., NATIONAL CONFERENCE OF STATE LEGISLATURES & NATIONALCONGRESS OF AMERICAN INDIANS, GOVERNMENT TO GOVERNMENT:MODELS OF COOPERATION BETWEEN STATES AND TRIBES 8 (2002).29. Stanley G. Feldman & David L. Withey, Resolving State-TribalJurisdictional Dilemmas, 79 JUDICATURE 154, 155 (1995).30. James A. Bransky & Hon. Garfield A. Wood, The State/Tribal CourtForum: Moving Tribal and State Courts from Conflict to Cooperation,72 MICH. B. J. 420, 421 (1993).31. Id. at 156.wished to reserve to the government profitable trade relation-ships. This political sovereignty was qualified by the Court’sdecision one year earlier, declaring the Tribes to be “domesticdependent nations,” a unique brand of internal sovereign thatwas neither a state nor a foreign country.15In the era immediately following these early decisions fromthe Marshall Court, the federal government became the exclu-sive entity to enter into formal relations with Indigenous nationsin the United States. However, this exclusivity created points ofconflict that continue to this day. Additionally, federal policy—both judicial and legislative—has consistently eroded Tribal sov-ereignty, creating a paradox in Tribal-federal-state relations:Tribes have inherent sovereignty, however limited, and yet arecontinually undermined by federal initiatives to erode, assimi-late, and ultimately terminate them.16 Federal erosion ofIndigenous sovereignty leaves the Tribes vulnerable to stateencroachment, furthering the process of sovereign destruction.This cultural and historical context also frames the issue ofcooperation between Tribal and state court systems. One of themost profound expressions of a sovereign’s power to managethe affairs of its people is the exercise of civil and criminal juris-diction. Historically, Tribes have always had dispute-resolutionmechanisms that expressed the cultural values of each Tribe.17In 1934, the federal government encouraged Tribes to createtheir own court systems under the Indian Reorganization Act,but pressured them to adopt largely Anglo-American models ofjurisprudence.18 In the past few decades, Tribal courts haveexperienced explosive growth, hearing complex cases andresponding to federal pressure to maintain many aspects ofAnglo-American jurisprudence, while also “crafting a uniquejurisprudence of vision and cultural integrity.”19 There are cur-rently over 560 federally recognized Tribes and over 250 Tribalcourts in the United States.20 As Tribal courts have grown innumber, ever more practitioners find themselves practicing inTribal jurisdictions on a wide variety of civil, criminal, and fam-ily matters.21 Typically, as a result of the IRA, Tribal courts havelargely Western-style legal systems, often including writtenTribal constitutions and codes, appellate courts, rules of civiland criminal procedure, and even rules for appearance pro hacvice. In addition to the vertical, Western form of justice familiarto state and federal practitioners, Tribes also have rich sourcesof internal common law, as well as holistic dispute resolutionbodies—both traditional and contemporary—such asPeacemaker circles22 and Healing-to-Wellness courts.23Just like other aspects of sovereignty, Tribal courts and theirjurisdiction have suffered from erosion by Congress and bystate and federal judicial decisions. Underlying these decisionsis the myth that Tribal courts somehow lack transparency oreven competence, especially when dealing with non-Indianentities. This myth is reflected in the erosion of criminal juris-diction for “major crimes” and for crimes involving non-Indiandefendants. One of the most famous examples comes from theaftermath of Ex parte Crow Dog,24 in which the Supreme Courtreversed the North Dakota territorial courts’ negation of a Tribaldecision to resolve a homicide through a traditional form ofrestitution25 rather than by capital punishment, thereby recog-nizing the Tribes’ right to express their sovereignty throughcriminal jurisdiction. The cultural norms reflected by this moreholistic, community-centered solution were simply beyond theken of the non-Indigenous, territorial courts that reviewed thedecision. In fact, the Supreme Court’s holding in Crow Dogprompted Congress to divest the Tribes of much of their felonyjurisdiction. The Major Crimes Act26 extended federal jurisdic-tion over an extensive list of felonies occurring in Indian coun-try. Even today, this lack of cultural awareness and understand-ing continues, ironically articulated as a lack of transparency orcompetence on the part of the Tribal courts.27In this era of political, judicial, and economic growth for ourFirst Peoples, there is the potential for either increased conflictor increased cooperation. Fortunately, in at least a handful ofstates, Tribes and states are increasingly looking for opportuni-ties to cooperate, and the last two decades have seen the devel-opment of a number of programs. In the legislative arena, theNational Conference of State Legislatures and the NationalCongress of American Indians have joined forces to study andpromote cooperative agreements based on mutuality andtrust.28 In the judicial arena, one promising result of recentcooperative movements has been the Civil Jurisdiction inIndian Country Project.29 A number of Tribal-state courtforums have also begun around the country, developed largelyunder an initiative by the National Center for State Courts andConference of Chief Justices.30 State courts and Tribal courts aremost likely to resolve jurisdictional differences and protect theintegrity of their Native communities when they establishCourt Review - Volume 45 49agreements recognizing comity and full faith and credit forTribal court judgments; possibly share resources like jails, courtpersonnel, and probation officers; jointly develop legislationthat contemplates cooperation on Indian child-welfare, taxa-tion, and criminal-law enforcement; and promote awareness ofTribal affairs by the state bench and bar.31 One fruitful path foropening these intergovernmental and intercultural discussionsis the listening conference. In one example, the New YorkFederal-State-Tribal Courts Forum, in conjunction with severalother organizations, “convened state and federal judges andcourt officials in sessions with tribal judges, chiefs, clan moth-ers, peacemakers, and other representatives from the justicesystems of New York’s Indian Nations and Tribes, to exchangeinformation and learn about [their] respective concepts of jus-tice.”32Another way in which state courts can support Tribal courtsis by developing jurisdictional agreements to adopt a form ofIndian abstention doctrine. Although the federal Indian-absten-tion doctrine may be eroded by the holding in Nevada v. Hicks,33the Supreme Court has encouraged federal courts to abstainfrom exercising concurrent jurisdiction in Indian country oversuits involving “reservation affairs.”34 The Indian-abstentiondoctrine is similar to various abstention principles betweenstate and federal courts.35 Arguably, state courts that have con-current jurisdiction with Tribal courts, such as Public Law 280jurisdiction, should exercise their discretion to abstain frommatters pertaining to Tribal lands or affairs and should mind-fully employ choice of law principles to defer to Tribal courtjurisdiction where Tribal law applies.36 For example, in 2005,the Wisconsin courts and Wisconsin-based Tribes held a con-ference on jurisdiction, in which they developed a thirteen-fac-tor protocol for determining the proper forum in cases withconcurrent jurisdiction.37This discussion has focused primarily on the state courts’role in cooperating with Tribal communities. But Tribal-statecooperation can also reduce conflict in legislative and executivematters, such as taxation, gaming, natural resources, social ser-vices, policing, and so on.38 While it is generally accepted thatbetter relationships will emerge from increasing intergovern-mental collaboration, there are also major, legitimate concerns.The devolution of many federal-Tribal programs to state, Tribal,and local governments creates pressure for Tribes to enter intostate compacts and contracts, and sometimes even mandatesjoint programs.39 By abdicating its role, the federal governmentis forcing Tribes to negotiate matters that should be reserved tothe Tribal-federal trust relationship.40In this era of “forced federalism,” it is critical for the courts,as well as state and local governments, to understand that theissue at stake for Tribes is nothing less than their sovereignty.41Cultivating healthy Tribal-state relationships requires con-scious, mindful efforts to engage in cross-cultural communica-tion based on “mutual understanding and respect.”42Jurisdictional agreements and other cooperative arrangementsthat support Tribal sovereignty flow back to the states in theform of increased economic activity and social well-being.Therefore, when the opportunity arises for courts to engage inproblem-solving across Tribal-state lines, it benefits both sover-eigns, and most importantly, their people.Aliza G. Organick is an associate professor oflaw at Washburn University School of Law. Sheearned her B.U.S. from the University of NewMexico in 1992 and her J.D. from the Universityof New Mexico in 1996. Professor Organick cre-ated the Tribal and State Court Practice Clinicat Washburn Law, and teaches a variety ofcourses related to tribal court practice,Indigenous peoples, comparative law, and law clinic. She is also aformer visiting assistant professor in the Southwest Indian LawClinic at the University of New Mexico, and the present chair-electof the Association of American Law Schools Section on IndianNations and Indigenous Peoples. Professor Organick is an enrolledmember of the Diné Nation and is born to the Tjenjikinee (CliffDweller) Clan. Professor Organick is co-author of the forthcomingTribal Court Practice Handbook (Carolina Academic Press 2011)(with Tonya Kowalski). Tonya Kowalski is an associate professor of lawat Washburn University School of Law. Sheearned her B.A. from the University of Florida in1992, and her J.D. from Duke University Schoolof Law in 1995. Professor Kowalski teaches legalanalysis, research, and writing, and occasionallyguest lectures in the Washburn Law Clinic onboth legal writing and on tribal court practice.She is a former staff member and former visiting assistant professorin the Indian Legal Clinic at the Sandra Day O’Connor College ofLaw at Arizona State University. Professor Kowalski is co-author ofthe forthcoming Tribal Court Practice Handbook (CarolinaAcademic Press 2011) (with Aliza G. Organick).50 Court Review - Volume 45 32. Marcy L. Kahn, Edward M. Davidowitz & Joy Beane, BuildingBridges Between Parallel Paths: The First New York ListeningConference for Court Officials and Tribal Representatives, 78 N.Y. ST.B. J. 10, 11 (2006).33. 533 U.S. 353 (2001).34. National Farmers Union Ins. Co. v. Crow Tribe of Indians, 471U.S. 845, 856-57 (1985).35. John J. Harte, Validity of a State Court’s Exercise of ConcurrentJurisdiction over Civil Actions Arising in Indian Country: Applicationof the Indian Abstention Doctrine in State Court, 21 AMER. INDIAN L.REV. 63, 76 (1997).36. Id. at 84-102.37. Robert A. Blaeser & Andrea L. Martin, Engendering TribalCourt/State Court Cooperation, 63 BENCH & BAR MINN. 18, 21(2006).38. See NATIONAL CONFERENCE OF STATE LEGISLATURES & NATIONALCONGRESS OF AMERICAN INDIANS, GOVERNMENT TO GOVERNMENT:UNDERSTANDING STATE AND TRIBAL GOVERNMENTS 2 (2000).39. Id. at 5.40. CORNTASSEL & WITMER, supra note 2 at 16-24.41. Gabriel S. Galanda & Anthony S. Broadman, Deal or No Deal?Understanding Indian Country Transactions, 18 BUS. L. TODAY 11,11 (2008).42. MODELS OF COOPERATION, supra note 28 at 7.

From Conflict to Cooperation:
State and Tribal Court Relations in the Era of Self-Determination

State and Tribal sovereigns have historically had a tense relationship, beginning in colonial times, when states vied with the federal government for trading rights and for control of Indian lands. Today, that tension still expresses itself in matters such as gaming compacts, criminal and civil jurisdiction, and taxation, to name just a few. While different sovereigns within a federal system may always vie for resources and power to some extent, it is time for states and Tribes to focus on what a more mutually supportive relationship with Tribal communities has to offer. This Essay explores the history of the two sovereigns’ relationship, how they tend to interact today, and possibilities for positive growth and interaction between them

Organick, Aliza

University of New Mexico

2009 
From Conflict to Cooperation: State and Tribal Court Relations in 
the Era of Self-Determination 
Aliza Organick 
University of New Mexico - School of Law 
Tonya Kowalski 
Washburn University School of Law 
Follow this and additional works at: https://digitalrepository.unm.edu/law_facultyscholarship 
 Part of the Indian and Aboriginal Law Commons 
Recommended Citation 
Aliza Organick & Tonya Kowalski, From Conflict to Cooperation: State and Tribal Court Relations in the Era 
of Self-Determination, 45 Court Review 48 (2009). 
Available at: https://digitalrepository.unm.edu/law_facultyscholarship/694 
This Article is brought to you for free and open access by 
the UNM School of Law at UNM Digital Repository. It has 
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authorized administrator of UNM Digital Repository. For 
more information, please contact amywinter@unm.edu, 
lsloane@salud.unm.edu, sarahrk@unm.edu. 
Footnotes
1. This Essay refers to Indigenous peoples of the United States by a
number of names, including First Peoples, Indigenous nations,
Indigenous peoples, and Tribes.
2. See generally JEFF CORNTASSEL & RICHARD C. WITMER, FORCED
FEDERALISM: CONTEMPORARY CHALLENGES TO INDIGENOUS
NATIONHOOD 3-83 (2008).
3. See MARYANN CUSIMANO LOVE, BEYOND SOVEREIGNTY: ISSUES FOR A
GLOBAL AGENDA 11-13 (2d ed. 2003).
4. Id.
5. Angelique A. EagleWoman (Wambdi Awanwicake Wastewin), The
Philosophy of Colonization Underlying Taxation Imposed upon Tribal
Nations within the United States, 43 TULSA L. REV. 43, 44 (2007).
6. S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 22 (2d
ed. 2004).
7. Id.
8. ROBERT N. CLINTON, CAROLE E. GOLDBERG & REBECCA TSOSIE,
AMERICAN INDIAN LAW: NATIVE NATIONS AND THE FEDERAL SYSTEM
11-26 (4th ed. 2003).
9. Id.
10. Id.
11. Id. at 23-49.
12. See RICHARD J. PERRY, FROM TIME IMMEMORIAL: INDIGENOUS PEOPLES
AND STATE SYSTEMS 13-17 (1996).
13. 31 U.S. 515 (1832).
14. Hope M. Babcock, A Civic-Republican Vision of “Domestic
Dependent Nations” in the Twenty-First Century: Tribal Sovereignty
Re-envisioned, Reinvigorated, and Re-empowered, 2005 UTAH L. REV.
443, 503.
The Indigenous nations1 of the United States have long beensubject to federal policy. Since the Civil Rights Era, thatfederal policy purportedly has been to encourage self
determination and tribal sovereignty. One of the hallmarks of
self-determination is the development of Tribal legal systems,
which have been actively encouraged and funded by the federal
government. As a result, Tribes have been exercising their juris-
diction in ways that were not contemplated decades ago. As
Tribes have expressed their sovereignty through their court sys-
tems, it is not surprising that states sometimes feel that their
own jurisdiction is threatened. This conflict creates a need for
increased understanding, communication, and cooperation
between Tribal and state governments. The extent to which
Tribal-state cooperation succeeds or fails depends in large part
upon their ability to understand each other’s philosophical,
legal, and historical realities. Cultural barriers to communica-
tion can, if left unattended, prevent meaningful cooperation
from taking place. Historical myths and prejudices about the
First Peoples of the United States threaten to keep Indigenous
communities impoverished and marginalized. These myths
stem from first contact, and form the root of modern, anti-
Tribal policies, legislation, and court decisions.2 If we agree that
Tribal-state relationships should evolve, we must first accept
that the historical animosity and distrust are the products of a
powerful legacy of colonization, genocide, and oppression.
Furthermore, Tribal-state tensions result from a clash of
political philosophies and differing worldviews. From the Euro-
American standpoint, the concept of national statehood
evolved from the philosophy of natural law, as well as from the
pragmatic desire to centralize power and encourage long-dis-
tance trade.3 Modern states are also typically characterized by
large, somewhat diverse populations.4 In contrast, from the
Indigenous standpoint, sovereignty is “interwoven with the
social, spiritual, intellectual, and economic aspects of the com-
munities they serve.”5 Historically speaking, Indigenous
nations tended to form around kinship ties or other commu-
nity-based relationships. They also tended to have “decentral-
ized political structures often linked in confederations, and
have enjoyed shared or overlapping spheres of territorial con-
trol.”6 These differences can make it difficult for Westerners to
comprehend Indigenous sovereignty.7 Nevertheless, even by the
colonizers’ definition, Indigenous peoples of the emerging
United States were sovereign entities, and governments
engaged with them on an international basis.8 There is ample
evidence that early, pre-colonial settlers, the British Crown, and
the fledgling American government dealt with Indigenous
nations as co-equal sovereigns, recognizing that North
American lands were already occupied by Indigenous nations.9
As with any topic involving Indigenous peoples, Tribal-state
cooperative arrangements must be viewed within their histori-
cal context. History shows that the hundreds of early treaty
relationships between Indigenous nations and colonial govern-
ments recognized the potential for cooperative arrangements,
particularly in the areas of trade, building alliances, and defin-
ing territory.10 These relationships remained the status quo
while the balance of power between Indigenous peoples and
colonists remained relatively balanced. However, as the United
States grew in wealth, military might, and population, that bal-
ance of power changed.11 The colonies—and eventually the
states—coveted Indigenous territory for settlement and expan-
sion. Before long, it became evident that the Crown could not
control its subjects in their hunger for Indigenous lands and for
gold.12 The United States Supreme Court made a decisive move
that set the tone for Tribal-state relations for centuries to come.
In the landmark case Worcester v. Georgia,13 the State of Georgia
attempted to extend its laws and jurisdiction over the Cherokee
Nation. The Supreme Court “unequivocally rejected any role
for states . . . in favor of an exclusive federal-[T]ribal relation-
ship.”14 The Court premised its holding on inherent Tribal sov-
ereignty vis à vis the hostile, encroaching state, but, as a matter
Aliza G. Organick and Tonya Kowalski
From Conflict to Cooperation:
State and Tribal Court Relations in the Era of Self-Determination
48 Court Review - Volume 45 
C E S S AY
15. Cherokee Nation v. Georgia, 30 U.S. 1 (1831).
16. See DAVID E. WILKINS, AMERICAN INDIAN SOVEREIGNTY AND THE U.S.
SUPREME COURT: THE MASKING OF JUSTICE 24 (1997).
17. Christine Zuni Cruz, Strengthening What Remains, 7 KAN. J. L. &
PUB. POL’Y 18 (1997).
18. Frank Pommersheim, Tribal Courts: Providers of Justice and
Protectors of Sovereignty, 79 JUDICATURE 110, 112 (1995).
19. Id.
20. Pat Sekaquaptewa, Tribal Courts and Alternative Dispute Resolution,
18 BUS. L. TODAY 23, 23-24 (2008).
21. Cf. Gabriel S. Galanda, A Need to Know Indian Law, 64 OR. ST. B.
BULL. 62, 62 (Nov. 2003).
22. See Zuni Cruz, supra note 17, at 19.
23. See generally Tribal Law & Policy Institute, Tribal Healing to
Wellness Courts, http://www.tribal-institute.org/LISTS/drug_
court.htm (last accessed June 5, 2009).
24. 109 U.S. 556 (1883).
25. SIDNEY L. HARRING, CROW DOG’S CASE: AMERICAN INDIAN
SOVEREIGNTY, TRIBAL LAW, AND UNITED STATES LAW IN THE
NINETEENTH CENTURY 119 (1994).
26. 18 U.S.C. § 1153.
27. Philip P. Frickey, Tribal Law, Tribal Context, and the Federal Courts,
18 KAN. J.L. & PUB. POL’Y 24, 30-31 (2008).
28. E.g., NATIONAL CONFERENCE OF STATE LEGISLATURES & NATIONAL
CONGRESS OF AMERICAN INDIANS, GOVERNMENT TO GOVERNMENT:
MODELS OF COOPERATION BETWEEN STATES AND TRIBES 8 (2002).
29. Stanley G. Feldman & David L. Withey, Resolving State-Tribal
Jurisdictional Dilemmas, 79 JUDICATURE 154, 155 (1995).
30. James A. Bransky & Hon. Garfield A. Wood, The State/Tribal Court
Forum: Moving Tribal and State Courts from Conflict to Cooperation,
72 MICH. B. J. 420, 421 (1993).
31. Id. at 156.
of policy, clearly also wished to reserve to the government prof-
itable trade relationships. This political sovereignty was quali-
fied by the Court’s decision one year earlier, declaring the Tribes
to be “domestic dependent nations,” a unique brand of internal
sovereign that was neither a state nor a foreign country.15
In the era immediately following these early decisions from
the Marshall court, the federal government became the exclusive
entity to enter into formal relations with Indigenous nations in
the United States. However, this exclusivity created points of
conflict that continue to this day. Additionally, federal policy—
both judicial and legislative—has consistently eroded Tribal sov-
ereignty, creating a paradox in Tribal-federal-state relations:
Tribes have inherent sovereignty, however limited, and yet are
continually undermined by federal initiatives to erode, assimi-
late, and ultimately terminate them.16 Federal erosion of
Indigenous sovereignty leaves the Tribes vulnerable to state
encroachment, furthering the process of sovereign destruction.
This cultural and historical context also frames the issue of
cooperation between Tribal and state court systems. One of the
most profound expressions of a sovereign’s power to manage
the affairs of its people is the exercise of civil and criminal juris-
diction. Historically, Tribes have always had dispute-resolution
mechanisms that expressed the cultural values of each Tribe.17
In 1934, the federal government encouraged Tribes to create
their own court systems under the Indian Reorganization Act,
but pressured them to adopt largely Anglo-American models of
jurisprudence.18 In the past few decades, Tribal courts have
experienced explosive growth, hearing complex cases and
responding to federal pressure to maintain many aspects of
Anglo-American jurisprudence, while also “crafting a unique
jurisprudence of vision and cultural integrity.”19 There are cur-
rently over 560 federally-recognized Tribes and over 250 Tribal
courts in the United States.20 As Tribal courts have grown in
number, ever more practitioners find themselves practicing in
Tribal jurisdictions on a wide variety of civil, criminal, and fam-
ily matters.21 Typically, as a result of the IRA, Tribal courts have
largely Western-style legal systems, often including written
Tribal constitutions and codes, appellate courts, rules of civil
and criminal procedure, and even rules for appearance pro hac
vice. In addition to the vertical, Western form of justice familiar
to state and federal practitioners, Tribes also have rich sources
of internal common law, as well as holistic dispute resolution
bodies—both traditional and contemporary—such as
Peacemaker circles22 and Healing-to-Wellness courts.23
Just like other aspects of sovereignty, Tribal courts and their
jurisdiction have suffered from erosion by Congress and by
state and federal judicial decisions. Underlying these decisions
is the myth that Tribal courts somehow lack transparency or
even competence, especially when dealing with non-Indian
entities. This myth is reflected in the erosion of criminal juris-
diction for “major crimes” and for crimes involving non-Indian
defendants. One of the most famous examples comes from the
aftermath of Ex parte Crow Dog,24 in which the Supreme Court
reversed the North Dakota territorial courts’ negation of a Tribal
decision to resolve a homicide through a traditional form of
restitution25 rather than by capital punishment, thereby recog-
nizing the Tribes’ right to express their sovereignty through
criminal jurisdiction. The cultural norms reflected by this more
holistic, community-centered solution were simply beyond the
ken of the non-Indigenous, territorial courts that reviewed the
decision. In fact, the Supreme Court’s holding in Crow Dog
prompted Congress to divest the Tribes of much of their felony
jurisdiction. The Major Crimes Act26 extended federal jurisdic-
tion over an extensive list of felonies occurring in Indian coun-
try. Even today, this lack of cultural awareness and understand-
ing continues, ironically articulated as a lack of transparency or
competence on the part of the Tribal courts.27
In this era of political, judicial, and economic growth for our
First Peoples, there is the potential for either increased conflict
or increased cooperation. Fortunately, in at least a handful of
states, Tribes and states are increasingly looking for opportuni-
ties to cooperate, and the last two decades have seen the devel-
opment of a number of programs. In the legislative arena, the
National Conference of State Legislatures and the National
Congress of American Indians have joined forces to study and
promote cooperative agreements based on mutuality and
trust.28 In the judicial arena, one promising result of recent
cooperative movements has been the Civil Jurisdiction in
Indian Country Project.29 A number of Tribal-state court
forums have also begun around the country, developed largely
under an initiative by the National Center for State Courts and
National Conference of Chief Justices.30 State courts and Tribal
courts are most likely to resolve jurisdictional differences and
protect the integrity of their Native communities when they
Court Review - Volume 45 49
establish agreements recognizing comity and full faith and
credit for Tribal court judgments; possibly share resources like
jails, court personnel, and probation officers; jointly develop
legislation that contemplates cooperation on Indian child wel-
fare, taxation, and criminal law enforcement; and promote
awareness of Tribal affairs by the state bench and bar.31 One
fruitful path for opening these intergovernmental and intercul-
tural discussions is the listening conference. In one example,
the New York Federal-State-Tribal Courts Forum, in conjunc-
tion with several other organizations, “convened state and fed-
eral judges and court officials in sessions with tribal judges,
chiefs, clan mothers, peacemakers, and other representatives
from the justice systems of New York’s Indian Nations and
Tribes, to exchange information and learn about [their] respec-
tive concepts of justice.”32
Another way in which state courts can support Tribal courts
is by developing jurisdictional agreements to adopt a form of
Indian abstention doctrine. Although the federal Indian absten-
tion doctrine may be eroded by the holding in Nevada v. Hicks,33
the Supreme Court has encouraged federal courts to abstain
from exercising concurrent jurisdiction in Indian country over
suits involving “reservation affairs.”34 The Indian abstention
doctrine is similar to various abstention principles between
state and federal courts.35 Arguably, state courts that have con-
current jurisdiction with Tribal courts, such as Public Law 280
jurisdiction, should exercise their discretion to abstain from
matters pertaining to Tribal lands or affairs and should mind-
fully employ choice of law principles to defer to Tribal court
jurisdiction where Tribal law applies.36 For example, in 2005,
the Wisconsin courts and Wisconsin-based Tribes held a con-
ference on jurisdiction, in which they developed a thirteen-fac-
tor protocol for determining the proper forum in cases with
concurrent jurisdiction.37
This discussion has focused primarily on the state courts’
role in cooperating with Tribal communities. But Tribal-state
cooperation can also reduce conflict in legislative and executive
matters, such as taxation, gaming, natural resources, social ser-
vices, policing, and so on.38 While it is generally accepted that
better relationships will emerge from increasing intergovern-
mental collaboration, there are also major, legitimate concerns.
The devolution of many federal-Tribal programs to state, Tribal,
and local governments creates pressure for Tribes to enter into
state compacts and contracts, and sometimes even mandates
joint programs.39 By abdicating its role, the federal government
is forcing Tribes to negotiate matters that should be reserved to
the Tribal-federal trust relationship.40
In this era of “forced federalism,” it is critical for the courts,
as well as state and local governments, to understand that the
issue at stake for Tribes is nothing less than their sovereignty.41
Cultivating healthy Tribal-state relationships requires con-
scious, mindful efforts to engage in cross-cultural communica-
tion based on “mutual understanding and respect.”42
Jurisdictional agreements and other cooperative arrangements
that support Tribal sovereignty flow back to the states in the
form of increased economic activity and social well-being.
Therefore, when the opportunity arises for courts to engage in
problem-solving across Tribal-state lines, it benefits both sover-
eigns, and most importantly, their people.
Aliza G. Organick is an Associate Professor of
Law at Washburn University School of Law. She
earned her B.U.S. from the University of New
Mexico in 1992 and her J.D. from the University
of New Mexico in 1996. Professor Organick cre-
ated the Tribal and State Court Practice Clinic
at Washburn Law, and teaches a variety of
courses related to tribal court practice,
Indigenous peoples, comparative law, and law clinic. She is also a
former visiting assistant professor in the Southwest Indian Law
Clinic at the University of New Mexico, and the present Chair-
Elect of the Association of American Law Schools Section on Indian
Nations and Indigenous Peoples. Professor Organick is an enrolled
member of the Diné Nation and is born to the Tjenjikinee (Cliff
Dweller) Clan. Professor Organick is co-author of the forthcoming
Tribal Court Practice Handbook (Carolina Academic Press 2010)
(with Tonya Kowalski). 
Tonya Kowalski is an Associate Professor of Law
at Washburn University School of Law. She
earned her B.A. from the University of Florida in
1992, and her J.D. from Duke University School
of Law in 1995. Professor Kowalski teaches legal
analysis, research, and writing, and occasionally
guest lectures in the Washburn Law Clinic on
both legal writing and on tribal court practice.
She is a former staff member and former visiting assistant professor
in the Indian Legal Clinic at the Sandra Day O’Connor College of
Law at Arizona State University. Professor Kowalski is co-author of
the forthcoming Tribal Court Practice Handbook (Carolina
Academic Press 2010) (with Aliza G. Organick).
50 Court Review - Volume 45 
32. Marcy L. Kahn, Edward M. Davidowitz & Joy Beane, Building
Bridges Between Parallel Paths: The First New York Listening
Conference for Court Officials and Tribal Representatives, 78 N.Y. ST.
B. J. 10, 11 (2006).
33. 533 U.S. 353 (2001).
34. National Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S.
845, 856-57 (1985).
35. John J. Harte, Validity of a State Court’s Exercise of Concurrent
Jurisdiction over Civil Actions Arising in Indian Country: Application
of the Indian Abstention Doctrine in State Court, 21 AMER. INDIAN L.
REV. 63, 76 (1997).
36. Id. at 84-102.
37. Robert A. Blaeser & Andrea L. Martin, Engendering Tribal
Court/State Court Cooperation, 63 BENCH & BAR MINN. 18, 21
(2006).
38. See NATIONAL CONFERENCE OF STATE LEGISLATURES & NATIONAL
CONGRESS OF AMERICAN INDIANS, GOVERNMENT TO GOVERNMENT:
UNDERSTANDING STATE AND TRIBAL GOVERNMENTS 2 (2000).
39. Id. at 5.
40. CORNTASSEL & WITMER, supra note 2 at 16-24.
41. Gabriel S. Galanda & Anthony S. Broadman, Deal or No Deal?
Understanding Indian Country Transactions, 18 Bus. L. Today 11,
11 (2008).
42. MODELS OF COOPERATION, supra note 27 at 7.


From Conflict to Cooperation: State and Tribal Court Relations in the Era of Self-Determination

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From Conflict to Cooperation: State and Tribal Court Relations in the Era of Self-Determination

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