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United States v. Lara was hailed as a victory for Indian tribes because it upheld tribal criminal jurisdiction over non-member Indians. Lawrence v. Texas was hailed as a victory for the gay rights movement because it upheld the due process right of gays to be protected from criminal prosecutions for consensual sexual acts done in private within their own homes. Despite dramatically different contexts, the two cases share a common thread: both are cases in which interested groups achieved important successes by marshalling broad support for their arguments at the briefing stage which helped pave the way for Supreme Court victory. In a series of recent articles William Eskridge has documented the development of constitutional legal strategies during the past century by the gay rights movement, as well as the civil rights movement and the women's rights movement, and has evaluated their successes. This article will summarize some insights from Professor Eskridge and evaluate how and whether Indian tribes can adapt successful legal strategies of the gay rights movement or other social movements.

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Tulsa Law Review



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