Shedding New Light on an Old Debate: A Federal Indian Law Perspective on Congressional Authority to Limit Federal Question Jurisdiction

57 Pages Posted: 31 Aug 2009  

Kevin J. Worthen

BYU Law School

Date Written: August, 27 2009

Abstract

Examining the ongoing debate concerning congressional power to eliminate federal court jurisdiction over cases arising under federal law from the federal Indian law viewpoint allows consideration of the issues in a concrete setting. Experience under the Indian Civil Rights Act during the last twenty years indicates that some federal review of actions arising under federal law is needed if the command of the supremacy clause is to be fully effectuated. At the same time, it indicates that a uniform interpretation of that federal law is not essential to the enforcement of the clause. This examination thus provides support for the distributive authority theory, which postulates that Congress is required to vest some federal court with the authority to review all cases arising under federal law.

Application of the various theories to the ICRA also reveals serious constitutional concerns about the current enforcement scheme for civil ICRA claims. Although the Santa Clara Pueblo Court may have correctly interpreted Congress's intent in concluding that the ICRA prohibits federal court review, the problems such a scheme raises arguably transcend congressional power, reaching the level of a constitutional violation.

Keywords: Indian Civil Rights Act, federal jurisdiction, Native American law, federal review, supremacy clause, courts, Santa Clara Pueblo v. Martinez (1978)

Suggested Citation

Worthen, Kevin J., Shedding New Light on an Old Debate: A Federal Indian Law Perspective on Congressional Authority to Limit Federal Question Jurisdiction (August, 27 2009). Minnesota Law Review, Vol. 75, pp. 65-121, 1990. Available at SSRN: https://ssrn.com/abstract=1462878

Kevin J. Worthen (Contact Author)

BYU Law School ( email )

D-364 ASB
Brigham Young University
Provo, UT 84602

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