The Liberal Forces Driving the Supreme Court's Divestment and Debasement of Tribal Sovereignty
Ann E. Tweedy
University of Tulsa College of Law
January 1, 2000
Buffalo Public Interest Law Journal Vol. 18, pp. 147-217, 2000
This paper examines the Supreme Court’s substantial abandonment of a territorially based conception of Indian tribal sovereignty in favor of a consent-based conception and its recent characterization of tribal sovereignty as a special right, which may be claimed only by weak and dependent tribes. It ultimately attributes these trends, in significant part, to the Supreme Court’s increasing preoccupation with liberal goals in the decades following the Civil Rights Movement. The Supreme Court’s use of liberalism to erode well-established Indian law doctrines suggests that the continued application of liberal ideas poses serious problems for multicultural societies like the United States. These problems include the abolition of Indian tribes’ special status under the law and, more broadly, a threat to all subordinated groups of involuntary assimilation into the majority white culture.
In part II, the author analyzes in chronological order several Supreme Court cases, decided within the last two decades that have made significant encroachments upon tribal sovereignty.
Part III focuses more narrowly on two of the suspect methods the Supreme Court has used in recent cases to shrink and degrade tribal sovereignty: 1) ignoring or diminishing the force of the canons of construction in Indian law in order to reach a result unfavorable to Indian tribes, and 2) construing the legislative intent of acts of Congress without reference to subsequent legislative history, such as amendment or outright repudiation, in order to reach a result which disfavors Indian tribes and substantially erodes their sovereignty.
In part IV, the author discusses the Supreme Court’s use of social contract theory as an implicit basis of its decisions, especially those that evince a consent-based view of tribal sovereignty.
In part V, the author argues that the Supreme Court is motivated to dismantle Indian sovereignty because of its increasingly liberal view that such sovereignty is a special, race-based right, which, through its very focus on race, violates liberal equality theory.
The author concludes that liberalism must be drastically modified or abandoned in order to preserve the uniqueness of subordinated cultures in general and the sovereignty of Indian tribes in particular.
Number of Pages in PDF File: 73
Keywords: Tribal sovereignty, divestment, tribe, Indian, Native American, liberalism, social contract theory, Rawls, Kymlicka, sovereign immunity, tribal jurisdiction, federal common law
Date posted: March 22, 2012