The Other American Law

Details

Author(s):
Publish Date:
March 1, 2021
Publication Title:
Stanford Law Review
Publisher:
Stanford Law School
Format:
Journal Article Volume 73 Pages 555-636
Citation(s):
  • Elizabeth A. Reese, The Other American Law, 73 Stanford Law Review 555-636 (2021).

Abstract

American legal scholarship focuses almost exclusively on federal, state, and local law. However, there are 574 federally recognized tribal governments within the United States, whose laws are largely ignored. This Article brings to the fore the exclusion of tribal governments and their laws from our mainstream conception of “American law” and identifies this exclusion as both an inconsistent omission and a missed opportunity. Tribal law is no less “American law” than federal or state law. It is made, enforced, and followed by American citizens, and tribal governments have a distinct place as subsovereigns within the American system of overlapping sovereigns. Nor is tribal law an unimportant or small part of the American legal landscape, since these 574 legal systems govern millions of Americans and as much land as California. And yet, tribal law is excluded from our shared conception of “American law”—and therefore from our research projects, classrooms, and even conversations. This exclusion perpetuates the othering of Indians and the invisibility of both Indian people and their governments. Tribal governments were previously delegitimized and described as “lawless” in order to legitimize legal theories of conquest. But tribal law is real, and it is time to end its marginalization. Moreover, tribal law is vast, varied, and often innovative. As demonstrated by the three examples in this piece, tribal governments struggle with the same problems that the other American sovereigns face, and their similarities, differences, successes, failures, and innovations can inform other American sovereigns’ work or public law questions more broadly. Omitting tribal law from American legal scholarship is not only a troubling inconsistency; it is a missed opportunity to tap a potentially valuable resource—a disservice to the search for good government ideas. Tribal law belongs in the mainstream study of American law and legal systems. This Article places it there.