Rebooting Indian Law in the Supreme Court
18 Pages Posted: 14 Apr 2010 Last revised: 26 Jan 2016
Date Written: April 14, 2010
This talk, delivered as the 2010 Dillon Lecture at the University of South Dakota School of Law, argues Indian nations and advocates – and the federal judiciary – view Indian law through a reactionary lens, deciding major issues as the cases arise. There are a few mini-movements, long-term strategies on a particular issue, such as the Cobell litigation, the fishing rights cases of the 1960s and 1970s, and perhaps a few others. But even those series of cases could hardly be called a strategic “movement.” As a result of a lack of a viable long-term strategy, I posit that tribal interests are and will continue to be punching bags in Supreme Court litigation.
I offer suggestions on how to reboot federal Indian law in the federal judiciary and the Supreme Court. I will discuss cases or lines of cases that demonstrate how Indian nations can persevere in the Supreme Court, and suggest potential long-term strategies for tribal interests to pursue.
Keywords: Supreme Court, Federal Indian Law, Indian Treaty Rights, Cobell, Employment Division v. Smith, Brown v. Board of Education
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