The Case for “Expanding” the Abstention Doctrine to Account for the Laws and Policies of the American Indian Tribes

Joshua Jay Kanassatega, The Case for “Expanding” the Abstention Doctrine to Account for the Laws and Policies of the American Indian Tribes, 47 Gonz. L. Rev. 589 (2012)

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The American judicial system has two separate and independent court systems: the courts of the United States and the courts of the states. Both systems are united under one organic document, the U.S. Constitution. The Constitution sets forth a structure of power sharing between the states and the federal government, commonly known as federalism. This unique judicial framework is largely responsible for the creation of the long-standing general principle that the laws of the United States and the laws of the states can apply to the same persons, property, and contracts. This principle has significant legal consequences because of the potential for conflict between the two parallel court systems. That is, two different sets of courts might have concurrent power over the same people and the same things.

To resolve the conflict, the United States Supreme Court crafted rules grounded not only in the common law doctrine of comity, but also in necessity. The first of these judicially created schemes involved reaching back into the common law to apply a “first to file” rule. The “first to file” rule provides that the first court to acquire jurisdiction over the person or property shall have the right to exercise its jurisdiction exclusive of any other court. Application of this rule, however, proved to be somewhat challenging and, eventually, the Supreme Court adopted a different approach to create the proper balance of judicial power between the federal courts and the state courts.

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