Preemption and the Dormant Commerce Clause: Implications for Federal Indian Law
28 Pages Posted: 21 Feb 2015
Date Written: October 1, 1986
In 1832, the Supreme Court held that states could not extend their laws into Indian country, but over the years the Court has allowed greater and greater state incursions. The Court now recognizes two partial barriers to state power in Indian country: first, any state law that infringes on tribal sovereignty is barred; second, any state law that is preempted by federal law is also barred. Nonetheless, the Court has not clearly identified the sources of constitutional power underlying either of these barriers to state power. This Article argues that each barrier to state power springs from, and should be reviewed under, separate clauses of the federal Constitution. The barrier based on infringement of tribal sovereignty should be analyzed under the dormant Indian commerce clause; the barrier based on preemption by federal law should be analyzed under the supremacy clause. Because the Court has failed to identify the constitutional foundations of the two barriers, it has confused the barriers and merged them both into analogous balancing tests.
Keywords: Indian law, constitutional law
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