Consent and Resistance: The Modern Struggle between American Indian Tribes and the United States

Abstract

After a few years of late 19th century confusion, the United States Supreme Court held definitively in 1898 that the United States Constitution does not bind Indian tribes. Indian tribes were not invited to the Constitutional Convention. Indian tribes never ratified the Constitution (nor were they asked). The Constitution places Indian tribes and foreign nations in the same category of governments that, by definition, were not American.

And yet in the 21st century, it is well understood that Indian tribes are a part – somehow – of the American Constitutional structure. Justice O’Connor wrote that Indian tribes are the “third sovereign.” It remains hornbook law that the Constitution does not bind Indian tribes, but the three branches of the federal each purport to maintain plenary control over critical aspects of Indian tribes, citing to admittedly dubious authority.

The book project will parse through that history into the modern era, and highlight areas in which federal government control over Indian affairs no longer makes sense. Using aspects of consent theory to generate separate theories of tribal and individual Indian consent, I propose a new way of viewing Indian affairs, in which Indian tribes and individual Indians strategically exercise resistance to federal law as a means of vesting Indian tribes and Indian people in the American constitutional structure.

Keywords: Supreme Court, Indian tribes, consent theory, constitutional law, federal common law, federalism, constitutional structure, tribal courts