What the Future Holds: The Changing Landscape of Federal Indian Policy

34 Pages Posted: 11 Jan 2017 Last revised: 4 May 2017

Date Written: January 10, 2017


Since first described by Chief Justice John Marshall, the United Stated has been deemed to have a moral and legal “trust responsibility” to the American Indian tribal nations who gave way so that the United States could exist. For nearly two centuries, the trust responsibility reflected a paternalistic view toward Indian tribes. As the United States has developed a more enlightened policy characterized by greater respect for “tribal self-governance,” tribal governments have experienced a renaissance. Instead of federal paternalism, federal policy has moved away from federal control and toward tribal empowerment. As a result, the trust responsibility’s paternalistic features have come to seem anachronistic, and the trust responsibility can be described today by a new set of norms. The evolution, however, is not complete. Some of the old paternalistic features continue to animate federal Indian law and serve as obstacles to tribal self-governance. Moreover, as tribal governments exercise greater powers, they are subject to new scrutiny. Perhaps ironically, even some Native Americans have sought to reinstate federal oversight of tribal nations. The shifting norms of federal policy have produced new conflicts and will require a new reckoning about the federal role as old norms clash with new.

Suggested Citation

Washburn, Kevin K., What the Future Holds: The Changing Landscape of Federal Indian Policy (January 10, 2017). 130 Harvard Law Review Forum 200-232 (2017), UNM School of Law Research Paper No. 2017-01, Available at SSRN: https://ssrn.com/abstract=2896916 or http://dx.doi.org/10.2139/ssrn.2896916

Kevin K. Washburn (Contact Author)

University of Iowa College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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