Practical Reasoning and the Application of General Federal Regulatory Laws to Indian Nations

38 Pages Posted: 27 Jan 2016 Last revised: 20 Feb 2016

See all articles by Alexander Tallchief Skibine

Alexander Tallchief Skibine

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

Date Written: January 26, 2016

Abstract

There are many Federal regulatory laws of general applicability, such as the NLRA, FLSA, ADEA and ADA, that do not specify whether they are applicable to Indian Nations inside Indian reservations. Because the United States Supreme Court has never issued a final ruling on this issue, the federal circuit court of appeals have developed no less than four different approaches to determine whether such regulatory laws should apply to Indian nations. After describing and evaluating the four approaches, this Article recommends applying "Practical Reasoning" to interpret congressional silence concerning application of those laws to Indian nations. Practical Reasoning is a theory of statutory interpretation developed by Professor William Eskridge and the late Professor Philip Frickey. According to these two scholars, "Practical Reasoning" is an "approach that eschews objectivist theories in favor of a mixture of inductive and deductive reasoning seeking contextual justification for the best legal answers among the potential alternatives." Applying this theory, the Article explains why the approaches developed by the Tenth Circuit as well as in a 1993 opinion authored by Judge Posner for the Seventh Circuit, are more consistent with Practical Reasoning.

Keywords: Federal Indian Law, Statutory Interpretation, Indian Tribes, Laws of General Applicability, Practical Reasoning

Suggested Citation

Skibine, Alexander Tallchief, Practical Reasoning and the Application of General Federal Regulatory Laws to Indian Nations (January 26, 2016). University of Utah College of Law Research Paper No. 155, Available at SSRN: https://ssrn.com/abstract=2722550 or http://dx.doi.org/10.2139/ssrn.2722550

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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