Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes

Forthcoming, American Indian Law Review

University of Utah College of Law Research Paper No. 76

50 Pages Posted: 17 Apr 2014 Last revised: 29 Apr 2014

See all articles by Alexander Tallchief Skibine

Alexander Tallchief Skibine

University of Utah - S.J. Quinney College of Law

Date Written: April 15, 2014

Abstract

In this Article, I argue that because Indian tribes have been incorporated into our constitutional system under a third sphere of sovereignty, the federal common law analysis under which the Court determines the extent of sovereign authority still possessed by Indian tribes is faulty. Instead of using federal common law, the Court should adopt a constitutional or at least quasi constitutional mode of analysis in determining such issues which in this case should be a dormant Indian Commerce Clause analysis. I also argue that the incorporation of tribes into our constitutional order not only has diminished the amount of power Congress has over such tribes but also may have limited the ability of tribes to escape limits the Constitution imposed on any exercise of sovereign authority within the geographical limits of the United States.

Keywords: Federal Indian law, Commerce Clause, Constitutionalism, federal common law

Suggested Citation

Skibine, Alexander Tallchief, Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes (April 15, 2014). Forthcoming, American Indian Law Review; University of Utah College of Law Research Paper No. 76. Available at SSRN: https://ssrn.com/abstract=2425354

Alexander Tallchief Skibine (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

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