A pair of U.S. Supreme Court cases in the mid-1980s created the exhaustion doctrine of federal Indian law - that cases within federal jurisdiction that raise a colorable claim of tribal jurisdiction should be litigated first in tribal court. Only when tribal remedies are exhausted may the losing party seek review in federal court. This federal post-exhaustion review raises two central questions: First, what standard of review should the federal courts employ in reviewing tribal court determinations? And second, what exactly are the federal courts entitled to review once tribal remedies have been exhausted? Underlying these questions is the issue of differentiating between tribal law and federal law. The existing standard of review between the two varies dramatically. Tribal court determinations of tribal law are entitled to absolute deference while tribal court determinations of federal law are generally reviewed de novo. Although federal courts may redetermine at least some issues of federal law on post-exhaustion review, proper respect for tribal courts and legislatures mandates that federal courts not review issues of tribal law. Thus, this article argues that proper deference to the sovereign powers of Indian tribes and tribal courts requires the federal courts, on post-exhaustion review, to scrupulously distinguish tribal court rulings on tribal law from rulings on federal law. Given that federal courts have apparently taken de novo review powers over all questions of federal law decided by tribal courts (whether that is legitimate or not), tribal courts are in some danger of serving merely as preliminary fact finders for federal district courts. This article proposes that federal courts can preserve the rights and values of tribal courts as instruments of tribal self-government only by carefully limiting questions of federal law to appropriate issues.
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