In legal contexts, it is often said that when there are unfavorable facts, the law may not turn out well. This phrase is related to the Oliphant case, where a small tribe exerted its authority over lands owned by nonmembers. Since then, the Supreme Court has been wary of tribal governments exerting control over nonmembers. Professor Matthew Fletcher has found that the modern Supreme Court is more likely to reverse cases where tribes won, but less likely to review cases where tribes lost.

1. Should tribes avoid going to court to avoid the risk of losing, which could harm all tribes? If so, what are some other ways tribes can promote their interests outside of court?

2. Despite the Supreme Court's growing skepticism towards tribal governments, Congress has passed laws such as the Tribal Law and Order Act of 2010 and the 2013 amendments to the Violence Against Women Act, which have expanded tribal criminal jurisdiction, including over non-Indians. Given your understanding of Indian law, how do you reconcile the role of Congress and the Court in this situation?

References

Anderson , R. , Berger , B. , Krakoff , S. , & Frickey , P. (2020). 4 ^th

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)

Williams v. Lee, 358 U.S. 217 (1959)