Tribal Sovereignty and the Recognition Power
77 Pages Posted: 8 Nov 2017
Date Written: November 6, 2017
Scholars who criticize Supreme Court doctrine regarding Native American Tribal Sovereignty have not yet addressed a fundamental constitutional concern. The Supreme Court has appropriated the Recognition Power through the judicially created doctrine of Implicit Divestiture, by which the Court presumes that Indian Tribes and Nations have lost all aspects of Tribal Sovereignty the Court deems “inconsistent” with the Tribes’ “dependent status.” This practice of “Judicial De-Recognition” violates the separation of powers. Implicit Divestiture has resulted in a presumption that “All sovereignty is lost except that which is specifically retained.” Through Implicit Divestiture, the Court has gone far beyond its normal judicial duties of regulating boundaries among sovereigns, constructing appropriate federal common law or implementing federal policy.
In light of the Supreme Court’s recent pronouncements regarding the Recognition Power, now is a good time for the Court to re-evaluate its own role in Tribal Recognition. Rather than appropriating the authority to de-recognize Tribal Sovereignty, the Supreme Court should adopt a rule of “Explicit Divestiture.” That is, “All sovereignty is retained except that which is specifically and constitutionally surrendered.” Under this doctrine, the Court would give greater deference to the Political Branches to determine Tribal Sovereignty while simultaneously encouraging them to adopt clear statements of Federal Policy regarding the same, relieving the judiciary of the burden of sifting through the vast historical record to determine ambiguous federal policy and losses or retentions of sovereignty. The Court would also avoid violating the separation of powers.
Such judicial deference to the political branches on the issue of Recognition would not preclude the Court from fulfilling its judicial role of considering the constitutional limits of Congressional, Executive, or State power to infringe upon traditional aspects of Tribal Sovereignty, and it would not preclude the Court from considering the possible constitutional status of tribes. The Court could still employ a “judicial shield” to protect Tribal Sovereignty from unconstitutional encroachments by the national or state governments, but it would lay down its “judicial sword” to intrude upon sovereignty itself.
Keywords: Native American Law, Constitutional Law
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