Statutory Divestiture of Tribal Sovereignty

64 Federal Lawyer 38-47 (April 2017)

10 Pages Posted: 22 Feb 2017 Last revised: 11 Apr 2017

Matthew L. M. Fletcher

Michigan State University College of Law

Date Written: February 20, 2017

Abstract

The Supreme Court’s non-decision in Dollar General v. Mississippi Band of Choctaw Indians is evidence not only of disagreement on tribal civil jurisdiction but perhaps also uncertainty in how to analyze divestiture of tribal sovereignty. Most scholars (including myself) have described the Court’s behavior in tribal sovereign authority cases as one of judicial supremacy, in that the Court merely makes policy choices based on its own ideological views of tribal power. That is a mistake. Persuaded by the federal government’s argument in Dollar General, I now argue that the proper analysis rests with federal statutes. Indian law practitioners can and should reconsider the Court’s prior decisions in this vein, as the best ones already do, and analyze tribal sovereign powers in the paradigm of statutory divestiture rather than judicial supremacy.

Keywords: Tribal Courts, Dollar General v. Mississippi Band of Choctaw Indians, Supreme Court, Judicial Supremacy, Federal Common Law, Tribal Sovereignty

Suggested Citation

Fletcher, Matthew L. M., Statutory Divestiture of Tribal Sovereignty (February 20, 2017). 64 Federal Lawyer 38-47 (April 2017). Available at SSRN: https://ssrn.com/abstract=2920674

Matthew L. M. Fletcher (Contact Author)

Michigan State University College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

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