The Native American Law Opinions of Judge Noonan: Do We Hear the Faint Voice of Bartolome de las Casas?

Abstract:     
The broad purpose of this essay is to look at Judge John T. Noonan's decisions involving issues connected with Native Americans. Because federal Indian law now relies so heavily on the plenary power model (born out of legal positivism) to the exclusion of the consent model (born out of natural law), it is instructive to see how, if at all, Judge Noonan is able to use natural law principles in an area of law now dominated by a positivistic model.

As background, I look briefly at the Spanish and British legal models that were used to justify the dispossession of native peoples in North America. I then describe federal policy, showing how it was an extension of the British legal model and a rejection of the Spanish model. I then review the early reliance on the consent model and explain how it gave way to the plenary power model. My discussion then turns to Judge Noonan's opinions and shows that the plenary power model leaves little room for the assertion of natural law principles embodied in the consent model.

Number of Pages in PDF File: 34

Keywords: Native American Law, Judge Noonan, Consent Doctrine

Accepted Paper Series