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18 N.Y.U. J.L. & Bus. 1 (2021-2022)

handle is hein.journals/nyujolbu18 and id is 1 raw text is: NEW YORK UNIVERSITY JOURNAL OF LAW & BUSINESS VOLUME 18 FALL 2021 NUMBER 1 IT'S NONE OF YOUR BUSINESS: STATE REGULATION OF TRIBAL BUSINESSES UNDERMINES SOVEREIGNTY AND JUSTICE SAM J. CARTER AND ROBIN M. ROTMAN* The U.S. Constitution grants the federal government plenary power over American Indian affairs, yet states are increasingly attempting to assert reg- ulatory 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 offederal, 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; fed- eral 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 obliga- tion to prevent state interference with tribes' treaty-protected rights. Finally, in light of recent legislative proposals and executive actions, this Article as- serts that removing barriers to American Indian participation in the politi- cal process at all levels will support economic development and self-determi- nation 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. * Sam J. Carter is a graduate student at the University of Missouri. Robin M. Rotman, JD, is an Assistant Professor of Energy and Environmental Law and Policy at the University of Missouri. The authors thank Mark H. Palmer, Ph.D. and Jordan M. Thompson, JD, for their expert review of this Article. 1 Imaged with Permission of N.Y.U. Journal of Law & Business

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