Tribal Law: It’s Not That Scary

Tribal law is often presented in a negative light. Indeed, the Supreme Court’s skepticism about tribal law has resulted in severe limitations on tribal jurisdiction. This Article challenges perceptions of tribal law by surveying tribal law. While tribal law does rely on tribal customs, tribal law is largely consistent with mainstream American law.

Tribal laws are often modeled on state codes or the Restatement. This Article contends tribal law mirrors western law for two primary reasons—efficiency and legitimacy. Regarding efficiency, borrowing a western law is easier than creating a law from scratch; plus, many laws are common across cultures. A written western law is also easier to apply to disputes than unwritten tribal customs.

Furthermore, harmonizing tribal law with the law of the surrounding state lowers transaction costs in disputes that cross the reservation border. The other reason tribal law parallels western law is legitimacy. Tribes know people may be suspicious of tribal law and sovereignty. By adopting western-style laws, tribes project an image non-Indians associate with governments.

Thus, utilizing western laws can enhance tribal sovereignty.