Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes
Forthcoming, American Indian Law Review
50 Pages Posted: 17 Apr 2014 Last revised: 29 Apr 2014
Date Written: April 15, 2014
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: Suggested Citation