The U.S. Constitution grants the federal government plenary power over American Indian affairs, yet states are increasingly attempting to assert regulatory and tax jurisdiction over tribal businesses. This overreach threatens tribal sovereignty and contravenes the terms of treaties entered between the United States and American Indian tribes. This Article begins by examining the legal foundations of federal, state, and tribal relations. It then examines recent cases across four business sectors - gaming, tobacco sales, petroleum sales, and online lending - in order to illustrate the pervasive jurisdictional challenges faced by courts in cases involving tribal businesses. This Article offers three recommendations. First, it argues that the proper first forum for resolving disputes involving tribal businesses is the tribal court system; federal and state courts should be prepared to consider this issue sua sponte if it is not raised by the parties. Second, this Article calls for periodic, systematic audits of federal compliance with Indian treaties, which should evaluate both the federal government’s activities and the federal government’s obligation to prevent state interference with tribes’ treaty-protected rights. Finally, in light of recent legislative proposals and executive actions, this Article asserts that removing barriers to American Indian participation in the political process at all levels will support economic development and self-determination in Indian Country. We contend that all Americans—indigenous or not—have a stake in seeing the federal government uphold its constitutional and treaty-bound commitments to American Indian tribes.
Robin M. Rotman and Sam J. Carter,
It's None of Your Business: State Regulation of Tribal Business Undermines Sovereignty and Justice, 18 New York University Journal of Law & Business
Available at: https://scholarship.law.missouri.edu/facpubs/1006