Retiring the 'Deadliest Enemies' Model of Tribal-State Relations

Abstract

State governments have long been described as the "deadliest enemies" of Indian people and Indian tribes, even with now-Chief Justice Roberts famously reversing the description in a 1997 Supreme Court brief to describe Indian tribes as the perpetrator - the "dead[ly] enemies" of states. The Constitutional common law rule resulting from this description prevents states from engaging with Indian tribes absent Congressional consent. But this view of tribal-state relations dates back to the first 100 years of American Constitutional jurisprudence and Indian affairs, when states and Indian tribes engaged in oft-horrific and genocidal violence. The "deadliest enemies" model of tribal-state relations has long passed and transformed into political and legal disputes. Outside of litigation, these disputes often are resolved via intergovernmental agreement. However, the bright-line rule resulting from the "deadliest enemies" model operates as a barrier to the development of peaceable tribal-state relationships. This short Essay argues for the retirement of the "deadliest enemies" model.

Keywords: indian law, federalism, intergovernmental agreement, John G. Roberts, kagama