Washington Law Review


Making It Work: Tribal Innovation, State Reaction, and the Future of Tribes as Regulatory Laboratories

June 19, 2017 | 92 Wash. L. Rev. 713

Abstract: This Article examines a growing phenomenon: even as the Supreme Court has steadily contracted the scope of tribes’ regulatory authority, many tribes have in recent years passed innovative laws and ordinances, often extending well beyond any comparable initiatives at the state or local level. Recently, for example, the Navajo Nation passed a comprehensive taxation scheme designed to discourage the consumption of unhealthy food items and to subsidize the purchase of healthy ones—a scheme far more ambitious than the soda tax efforts that have stalled in many cities and states. Likewise, amid national controversy over marijuana legalization, the Flandreau Santee Sioux Tribe sought to open a “marijuana resort” in a state with strict anti-marijuana policies; meanwhile, other tribes have moved in the opposite direction, banning on-reservation use of drugs and alcohol even where it would be allowable under state law.

Yet while we are accustomed to thinking of states as Brandeisian laboratories of democracy that pioneer innovations from which other jurisdictions can benefit, no ready model exists for how states and tribes should interact within the realm of regulatory experimentation. In practice, state reactions to tribal innovations have ranged from indifference to hostility to imitation, and few doctrines or practices exist to mediate issues that may arise from state-tribal regulatory conflict. Against this unsettled backdrop—which includes 2016’s inconclusive Supreme Court decision in Dollar General Corp. v. Mississippi Band of Choctaw Indians—this Article explores what contribution tribal regulation can and should make to the larger patchwork of regulatory innovation among states. It attempts, first, to survey some notable instances in which tribes have engaged in regulatory experimentation. It then considers the ways in which tribal innovation has affected and been affected by neighboring states, and the degree to which these effects resemble comparable dynamics in the interstate context. It closes by recommending several policies—among them tribal autonomy, clear delineation of tribal and state law’s respective territorial scope, and possible federal involvement—that may serve to foster a productive climate in which states and tribes can mutually influence and learn from each other.

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