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The Supreme Court's Last 30 Years of Federal Indian Law: Looking for Equilibrium or Supremacy?

37 Pages Posted: 19 Oct 2017 Last revised: 3 Nov 2017

Alexander Tallchief Skibine

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

Date Written: 2017

Abstract

Since 1831, Indian nations have been viewed as Domestic Dependent Nations located within the geographical boundaries of the United States. Although Chief Justice John Marshall acknowledged that Indian nations had a certain amount of sovereignty, the exact extent of such sovereignty as well as the place of tribes within the federal system has remained ill-defined. This Article examines what has been the role of the Supreme Court in integrating Indian nations as the third Sovereign within our federalist system. The Article accomplishes this task by examining the Court’s Indian law record in the last 30 years. The comprehensive survey of Indian law decisions indicates that the Court has had difficulties upholding the federal policy of respecting tribal sovereignty and encouraging tribal self-government. After categorizing the cases between victories and losses, the Article divides the cases into four categories: Federal common law, statutory interpretation, constitutional law, and procedural law. The cases are then further divided into four general areas: 1. Tribal Sovereign/Political rights, 2. Economic Rights (treaty/property rights), 3. Rights derived from the trust relationship, and 4. Cultural/Religious rights.

The Article next focuses on the interaction between the Court and Congress concerning the incorporation of tribes as the third sovereign within the federalist system. This Part first evaluates Congress’s response to Supreme Court cases and then looks at the Court’s response to congressional legislation. The Article ends by arguing that through its disproportionate use of federal common law in its Indian law decisions, the Court has not attempted to reach a consensus with Congress about the place of Indian nations within our federalism. Instead, it has aimed to establish what the Court perceives should be the proper equilibrium between tribal interests on one hand and the non-Indian/state interests on the other.

Keywords: indigenous nations, Indian law, tribal sovereignty

Suggested Citation

Skibine, Alexander Tallchief, The Supreme Court's Last 30 Years of Federal Indian Law: Looking for Equilibrium or Supremacy? (2017). University of Utah College of Law Research Paper No. 230. Available at SSRN: https://ssrn.com/abstract=3055169 or http://dx.doi.org/10.2139/ssrn.3055169

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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