Bringing Congress and Indians Back into Federal Indian Law: The Restatement of the Law of American Indians

Washington Law Review (Forthcoming 2022)

Wayne State University Law School Research Paper

Posted: 24 Oct 2022

Date Written: October 9, 2022

Abstract

Congress and Native Nations have renegotiated the federal-tribal relationship in the past fifty years. The courts, however, have failed to keep up with Congress and recognize this modern federal-tribal relationship. As a result, scholars, judges, and practitioners often characterize federal Indian law as incoherent and inconsistent. This article argues that the Restatement of the Law of American Indians retells federal Indian law to close the gap between statutory and decisional law. It realigns federal Indian law with the modern federal-tribal relationship negotiated between Congress and tribal governments. Consistent with almost a half-century of congressional law and policy, the Restatement clarifies the foundational principles of federal Indian law and provides federal and state courts with guidance on how to interpret statutes related to Native governments and peoples. It provides courts with a vision of federal Indian law that is more coherent, easier to apply, and more reflective of the state of affairs in Indian country than the decisional law adopted by the Supreme Court in the past fifty years.

Keywords: Congress, American Indians, Law

Suggested Citation

Carlson, Kirsten Matoy, Bringing Congress and Indians Back into Federal Indian Law: The Restatement of the Law of American Indians (October 9, 2022). Washington Law Review (Forthcoming 2022), Wayne State University Law School Research Paper , Available at SSRN: https://ssrn.com/abstract=4242869

Kirsten Matoy Carlson (Contact Author)

Wayne State University Law School ( email )

471 Palmer
Detroit, MI 48202
United States

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