A Different Look at the Indian Law Cases on the U.S. Supreme Court

34 Pages Posted: 23 Aug 2018

Date Written: August 10, 2018

Abstract

In recent years there has been a lot of attention paid to the U.S. Supreme Court by Indian law scholars. All the attention has been due to the dismal Court record in the Rehnquist and Roberts’ Courts for supporting Indian Country cases. Over the years authors have attempted to determine what the cause is for such a poor record. Some have concluded that some of the cases were wrongly decided. Others have attempted to analyze the Courts involved in terms of conservative and liberal or they have attempted to identify biases that some judges may have. One author has turned to statistical analysis in an attempt to determine if hidden variables are in play. Unfortunately no one has found a smoking gun though several theories have been proposed but one thing that has developed over time is that a database of cases has been evolving starting with the Rehnquist Court and it has now grown to more than one hundred forty cases. The database has provided a great opportunity for researchers who can now avoid the sometimes complex searches required by commercial databases.

The purpose of this paper is twofold. First I have updated the database with some newer cases and then I have tried a new approach to analyze the various Courts beginning in 1954 with the Warren Court up through recent cases in the Roberts Court. I will say at the outset that a lot of subjectivity is involved but I see that as an advantage because scholars can easily adapt the criteria I am using to more directly fit their needs. I too will admit that I have not found a smoking gun although I have made some interesting observations which may spark an idea in someone else’s mind. I have first divided the cases into 10 broad categories in an effort to see if this categorical approach highlights anything. Then I have attempted to divide the cases by how narrow or broad the opinion is. A discussion follows that highlights some of the findings and offers ideas on how the research can be expanded.

Keywords: Indian, Native American, Indian Law, Supreme Court

Suggested Citation

Parker, Phil, A Different Look at the Indian Law Cases on the U.S. Supreme Court (August 10, 2018). Available at SSRN: https://ssrn.com/abstract=3230115 or http://dx.doi.org/10.2139/ssrn.3230115

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