“The policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation’s history.”⁷ The United States has long recognized its trust responsibility to Tribal Nations, which includes a duty of protection against state hostility and interference. This can be traced back to the 1832 case Worcester v. Georgia, which was decided during a time when the State of Georgia had passed a series of laws that sought to “annihilate the Cherokee as a political society,” and states and territories generally viewed Tribes as competition for land and resources.⁸ There, the Supreme Court defended Tribal sovereignty against encroachment from the states, basing its decision on the dual principles that, (1) “the Constitution delegated broad legislative authority over Indian matters to the federal government,” and (2) that the Cherokee had a right to Tribal self-governance within its territory free from state interference.⁹ This reasoning has persisted, and today, “within Indian country,¹⁰ generally speaking, primary jurisdiction rests with the Federal Government and the Indian tribe inhabiting it, and not with the states, but while outside Indian country, state authority is more expansive and tribal authority more restrained.”¹¹

⁷ Cohen’s Handbook § 6.01; Rice v. Olson, 324 U.S. 786, 789 (1945).

⁸ Worcester v. Georgia., 31 U.S. 515 (1832); see also Roxanne Dunbar-Ortiz, An Indigenous Peoples’ History of the United States at 95-116 (2014).

⁹ Cohen’s Handbook § 6.01[2].

¹⁰ 18 U.S.C. § 1151 (Indian country defined).

¹¹ Cohen’s Handbook § 6.01.

The Indian preemption doctrine describes how “Congress’s plenary authority over Indian affairs and the tradition of tribal autonomy in Indian country combine to preempt the operation of state law.”¹² Rooted in this history of the federal government’s role of safeguarding Tribal Nations from state hostility, “[t]he Indian preemption doctrine started out as a means of balancing conflicting [T]ribal and state interests,”¹³ conflicts which “have shaped federal Indian law since the nation’s founding.”¹⁴ Otherwise described as the federal preemption of state laws that infringe on Tribal sovereignty, it is an essential component of the federal trust responsibility because it safeguards the right of “[T]ribal governments to shape the social, economic, and cultural conditions for their communities to thrive” without undue state interference.¹⁵

The U.S. Supreme Court decision in White Mountain Apache Tribe v. Bracker articulated the balancing test to determine the application of the Indian preemption doctrine, which is that “state jurisdiction is preempted by the operation of federal law if it interferes or is incompatible with federal and Tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority.”¹⁶ With respect to jurisdiction over Tribal members within Indian County,¹⁷ including civil matters such as public health regulation, “state law is generally inapplicable [pursuant to this balancing test], for the State’s regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest.”¹⁸ Regarding a state’s exercise of jurisdiction over non-Indians engaging in activity within Indian country,¹⁹ the balancing test must involve “a particularized inquiry into the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law.”²⁰

While the Bracker balancing test recognizes the dual authority of the federal government’s strong interest in preserving Tribal self-governance and the principles of Tribal sovereignty, it has been criticized for its unpredictability.²¹ It is difficult, for example, to predict whether a “state interest” is “sufficient” to justify an intrusion on Tribal sovereignty. As a result, when Tribal and state laws conflict, one often cannot determine which prevails without working through an often-complex legal analysis. Jurisdictions should consult with attorneys who are familiar with this body of law if they have questions.

¹² Cohen’s Handbook § 6.01.; see also M. Henry Ishitani & Alexandra Fay, Revising the Indian Plenary Power Doctrine, 29 Mich. J. Race & L. 1, 2 (2024) (noting that Congressional plenary authority over Indian affairs with undefined limits has also resulted in paternalistic policies harmful to the exercise of Tribal sovereignty).

¹³ Alex Tallchief Skibine, From Foundational Law to Limiting Principles in Federal Indian Law, 80 Mont. L. Rev. 67, 97 (2019).

¹⁴ Cohen’s Handbook § 6.01[1].

¹⁵ Bethany Berger, Preempting Colonialism: The Constitutional & Structural Dimensions of Federal Indian Law Preemption, 58 U.C. Davis L. Rev. 2045, 2046 (2025).

¹⁶ White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145 (1980); Scope of Tribal Authority, Restatement of the Law, The Law of American Indians § 31 (2022).

¹⁷ Public Law 280 transferred criminal and some civil jurisdiction from the federal government to specific states for crimes and legal issues on Native land. Pub. L. 83-280, 67 Stat. 588 (1953); 18 U.S.C. § 1162; 28 U.S.C. § 1360.

¹⁸ White Mountain Apache Tribe v. Bracker, 448 U.S. at 145.

¹⁹ 18 U.S.C. § 1151 (Indian country defined).

²⁰ White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145, 100 S. Ct. 2578, 2584, 65 L. Ed. 2d 665 (1980).

²¹ Lauren Van Schilfgaard et al., Tribal Nations and Abortion Access; A Path Forward, 46 Harv. J.L. & Gender at 50 (2023).

Tribal Nations’ sovereign authority to organize governments and create laws predates the formation of the United States.²² Tribes vary in size and population and can have centralized governments with the authority to limit political subdivisions within a Tribe. Distribution of authority, including public health authority, within a Tribal government is up to the discretion of the Tribal Nation, and can include the enactment of preemptive laws similar to those discussed throughout this toolkit.

²² Scope of Tribal Authority, Restatement of the Law, The Law of American Indians § 14 (2022).

Tribal Code Preemption Example (Navajo Nation Local Governance Act of 1998)

The Navajo Nation is one of the largest Tribal Nations in size and population. Its central government is comprised of an elected President and Vice President, ten executive divisions, and the Navajo Nation Council which has the authority to enact laws. Throughout the Navajo Nation, there also are 110 Chapters that operate as local governments.²³ The Navajo Nation’s Local Governance Act of 1998 (“Act”) delegated Chapters “governmental authority with respect to local matters consistent with Navajo law, including custom and tradition.”²⁴ Chapters have the authority to adopt ordinances “for the general health, safety and welfare of the chapter membership, consistent with Navajo Nation law.”²⁵ In addition to the requirement that Chapter ordinances be consistent with Navajo Nation law, “[a]ll authority exercised by a Chapter, pursuant to th[e] Act, may be preempted by Navajo Nation Council statutes and/or resolutions.”²⁶

 

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²³ Navajo Nation Governmental Structure, NAVAJO NATION DIVISION OF COMMUNITY DEVELOPMENT, https://navajochapters.org/about/ (last visited May 5, 2026)

²⁴ 26 N.N.C. § 1(B).

²⁵ 26 N.N.C. § 103(E).

²⁶ 26 N.N.C. § 103(C).