American Business Law Journal
Volume 60, Issue 1, 61–109, Spring 2023
An Intertribal Business Court
Adam Crepelle*
Few Indian reservations have any semblance of a private sector. Consequently, pov-
erty and unemployment are major problems in much of Indian country. While there
are many reasons why private enterprise is scarce in Indian country, one of the fore-
most reasons is businesses do not trust tribal courts. Businesses’ distrust of tribal
courts is not unique as outsiders often fear bias in foreign tribunals. Similarly, busi-
nesses are often concerned about a court’s capacity to adjudicate complex disputes.
Federal diversity jurisdiction was developed to allay fear of bias, and many states
have developed business courts to address questions about court capacity. Tribes can
overcome these issues by creating an intertribal business court (IBC). Tribes will be
free to sculpt the IBC as they see fit. However, the IBC’s intertribal nature will help
reduce fears of bias, and an IBC’s focus on business disputes will answer doubts
about court capacity. An IBC will also make tribal law more accessible, further
increasing confidence in this new tribunal. As businesses gain greater confidence in
tribal legal institutions through the IBC, they will be more likely to operate in
Indian country. Accordingly, the IBC could help to transform tribal economies.
INTRODUCTION
The rule of law plays a vital role in economic development.
1
The pur-
ported absence of effective legal institutions has long been named a cause
*Associate Professor, Antonin Scalia Law School at George Mason University; Director,
Tribal Law & Economics Program; Associate Justice, Court of Appeals for the Pascua Yaqui
Tribe; Campbell Fellow, The Hoover Institution at Stanford University. I would like to
thank the Law & Economics Center for sponsoring the Tribal Law & Economics Program’s
Research Roundtable on the Law & Economics of Tribal Sovereignty. I would like to thank
the participants in the Roundtable for their thoughtful comments on this article.
1
Rule of Law and Development, U.N. AND THE RULE OF LAW,https://www.un.org/ruleoflaw/rule-
of-law-and-development/ [https://perma.cc/6EXH-F23V] (last visited Dec. 13, 2022).
©2023 The Author. American Business Law Journal published by Wiley Periodicals LLC on
behalf of Academy of Legal Studies in Business.
This is an open access article under the terms of the Creative Commons Attribution-
NonCommercial-NoDerivs License, which permits use and distribution in any medium,
provided the original work is properly cited, the use is non-commercial and no
modifications or adaptations are made.
61
of the poverty afflicting Indian country.
2
Indians
3
have the highest
poverty rate in the United States.
4
Despite composing approximately
one percent of the nation’s population,
5
Indians are the majority popula-
tion in seven of the eight poorest counties in the United States.
6
Indian
country’s poverty rate is likely to remain high for the foreseeable future
because private enterprise is rare on reservations.
7
The absence of pri-
vate enterprise helps to explain why Indian country’s unemployment
2
18 U.S.C. § 1151 (2018) (defining the term “Indian country”); see Adam Crepelle,
Decolonizing Reservation Economies: Returning to Private Enterprise and Trade,12J.B
US.ENTRE-
PRENEURSHIP & L. 413, 455 (2019) (arguing tribes can “[d]evelop [l]aws, [p]olicies, and [g]
overnance [i]nstitutions”to overcome the poverty caused by federally restricted economic
development); Adam Crepelle, Getting Smart About Tribal Commercial Law: How Smart Con-
tracts Can Transform Tribal Economies,46D
EL.J.CORP. L. 469, 474–93 (2022) [hereinafter
Crepelle, Getting Smart] (summarizing how the federal government’s destruction of tribal
institutions has led to poverty).
3
This article uses the term “Indian”rather than “Native American”to denote the Indig-
enous peoples of the United States—Native Hawaiians excepted. “Indian”is used
because it is the proper legal term, see Indians, 25 U.S.C. § 1 (2020), and is often the
preferred term of Indians themselves. See,e.g., MISSISSIPPI BAND OF CHOCTAW INDIANS,
http://www.choctaw.org/ [https://perma.cc/J38D-E48B]; SOUTHERN UTE INDIAN TRIBE,
https://www.southernutensn.gov/ [https://perma.c c/ZR6B-DVQ Y]; QUINAULT INDIAN
NATION,htt p://www.quinaultindiannation.com/ [https://perma.cc/A395-VD69](lastvisited
Dec. 13, 2022).
4
American Indian and Alaska Native Heritage Month: November 2017, U.S. CENSUS BUREAU (Oct.
6, 2017), https://www.census.gov/newsroom/facts-for-features/2017/aianmonth.html [https://
perma.cc/HW4N-UM33].
5
Tina Norris, Paula L. Vines & Elizabeth M. Hoeffel, The American Indian and Alaska Native
Population: 2010, U.S. CENSUS BUREAU at 4 tbl.1 (Jan. 2012), https://www.census.gov/history/
pdf/c2010br-10.pdf [https://perma.cc/M65C-SBPM].
6
Unemployment on Indian Reservations at 50 Percent: The Urgent Need to Create Jobs in Indian
Country: Hearing Before the S. Comm. on Indian Affs., 111th Cong. 2 (2010) (statement of Sen.
Byron L. Dorgan, Chairman, S. Comm. on Indian Affs.).
7
Annie Lowery, Pain on the Reservation, N.Y. TIMES (July 12, 2013), https://www.nytimes.com/
2013/07/13/business/economy/us-budget-cuts-fallheavily-on-american-indians.html [https://
perma.cc/XSN4-N7AM](“There is not as much of a private sector presence in Indian coun-
try, which tends to be high-poverty and high-unemployment to begin with.”); Robert
J. Miller, Creating Economic Development on Indian Reservations, PERC (Sept. 14, 2012), https://
www.perc.org/2012/09/14/creating-economic-development-on-indian-reservations/ [https://
perma.cc/5PKW-G638](“Reservation economies rapidly lose the money that residents
receive because of the absence of small businesses where people can spend their cash on
needed goods and services.”).
62 Vol. 60 / American Business Law Journal
rate perennially hovers around fifty percent.
8
The unemployment rate is
high because businesses are reluctant to invest on reservations.
9
Though there are many barriers to private enterprise in Indian
country,
10
one of the most daunting is fear of tribal legal systems.
11
Tribal courts routinely adjudicate disputes involving non-Indians without
the slightest controversy;
12
nevertheless, businesses believe tribal courts
are biased.
13
In fact, Facebook founder Mark Zuckerberg wrote of the
Blackfeet Nation, “[Outside businesses] find the courts always rule in
favor of tribal members.”
14
Not only are tribal courts allegedly
prejudiced, tribal courts are not bound by the United States
8
See S. Hearing,Unemployment,supra note 6, at 1.
9
Adam Crepelle, How Federal Indian Law Prevents Business Development in Indian Country,
23 U. PA.J.BUS. L. 683, 686 (2021) [hereinafter Crepelle, How FederalIndian Law Prevents].
10
Id. at 688; Adam Crepelle, White Tape and Indian Wards: Removing the Federal Bureaucracy to
Empower Tribal Economies and Self-Government,54U.M
ICH.J.L.REFORM 563 (2021).
11
NAT’LCONF.COMM’RS ON UNIF.STATE L., IMPLEMENTATION GUIDE AND COMMENTARY TO THE
MODEL TRIBAL SECURED TRANSACTIONS ACT 13 (2005), https://www.bia.gov/sites/bia.gov/files/
assets/as-ia/ieed/ieed/pdf/idc1-024560.pdf [https://perma.cc/877U-GF22] (noting “the lack or
insufficiency of tribal commercial law to guide the parties in a business transaction that
would fall within a tribe’s jurisdiction”).
12
Matthew L.M. Fletcher, A Unifying Theory of Tribal Civil Jurisdiction,46ARIZ.ST.L.J.
779, 815–16 (2014) [hereinafter Fletcher, Unifying Theory] (summarizing how tribal “self-
determination and self-governance contracts”have led to increased respect and investment);
Matthew L.M. Fletcher, Contract and (Tribal) Jurisdiction,126Y
ALE L.J.F. 1, 2–3 (2016) [herein-
after Fletcher, Jurisdiction]; Sarah Krakoff, Tribal Civil Judicial Jurisdiction over Nonmembers: A
Practical Guide for Judges,81U.C
OLO.L.REV. 1187, 1193 (2010) (“Many assertions of tribal
authority over nonmembers are uncontroversial and do not result in litigation.”); Dennis
Wagner, Grand Canyon Skywalk Judgment Could Devastate Tribe, USA TODAY (updated Feb.
19, 2013), https://www.usatoday.com/story/news/nation/2013/02/19/grand-canyon-skywalk-
judgment-tribe/192 9813/ [https://perma.cc/AR95-D3SL](“[T]he tribe has ‘hundreds of out-
standing relationships with outside contractors…. Those partnerships are successful because
both parties consistently abide by theterms of the contracts we sign….’”).
13
See John Koppisch, Why Are Indian Reservations So Poor? A Look at the Bottom 1%,FORBES
(Dec. 13, 2011), https://www.forbes.com/sites/johnkoppisch/2011/12/13/why-are-indian-
reservations-so-poor-a-look-at-the-bottom-1/?sh=282123403c07 [https://perma.cc/2KNB-
FBY8] (asserting that companies are often wary to do business on reservations because of
underdeveloped Indian commercial codes, the general difficulty of enforcing contracts
under tribal laws, and requirements to bring claims in tribal courts, and because “the
chances of … winning in the unpredictable Crow courts, are slim”).
14
Mark Zuckerberg, FACEBOOK (July 16, 2017), https://www.facebook.com/zuck/posts/
10103892215949831.
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