In Theory, In Practice: Judging State Jurisdiction in Indian Country

CAROLE GOLDBERG

International relations theory suggests some new ways of thinking about the conflict between states and tribes over
jurisdiction in Indian country.  Realists portray the struggle as a clash of self-interested political actors, with the most
powerful prevailing.  Norms-driven theory suggests that perceptions of which legal system satisfies widely accepted
standards for fair and effective justice will determine which entity is allowed jurisdiction.  Since norms-driven analysis
seems more prevalent in Supreme Court decisions, this Article pursues its implications for tribal-state jurisdictional conflicts,
finding that federal courts and other decision-makers seem to favor state over tribal jurisdiction because state jurisdiction is
perceived to be more likely to deliver fair and effective justice.  The Article questions that assumption, challenging some
empirical evidence that appears to support it in a civil context and presenting the results of empirical research that indicates
that tribal communities view state criminal justice as unfair and ineffective within Indian country.