From Foundational Law to Limiting Principles in Federal Indian Law
Montana Law Review (Forthcoming)
27 Pages Posted: 25 Oct 2018 Last revised: 13 Nov 2018
Date Written: 2018
In this Article, I am arguing that one of the reasons animating the Court’s move away from Justice Marshall’s exceptionalism is its fear that under traditional foundational principles of federal Indian law, Indian tribes may gain what the court subjectively perceives to be “unfair” advantages over non-Indians. Therefore, the Court has been looking for limiting principles tending to achieve level playing fields between tribal and non-tribal actors. This Article also argues, however, that while looking for a level playing field may sound like a worthwhile goal, there are many pitfalls involved in this process that may end up hurting tribal sovereign interests.
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