Fighting the Lone Wolf Mentality: Twenty-First Century Reflections on the Paradoxical State of American Indian Law

34 Pages Posted: 18 Dec 2003 Last revised: 8 May 2010


What survives of American Indian tribal sovereignty rests largely on decisions of the U.S. Supreme Court, which rely in turn on constitutional principles, various Indian treaties, federal statutes, and what amounts to judge-made federal common law. But the Court has historically been an enemy as much as an ally of Indian sovereignty, and today it seems intent on undermining what remains of the basic principles of American Indian law. In a remarkable reversal, the political branches of the federal and even some state governments are now (sometimes) more friendly than federal and state courts to Indian tribal interests.

This article is part of a symposium marking the centennial of the Court's decision in Lone Wolf v. Hitchcock (1903), often called the "Dred Scott of Indian law." Lone Wolf upheld Congress's plenary power to seize Native American lands and abrogate Indian treaties. Later decisions qualified Lone Wolf's extreme abdication of judicial scrutiny and signalled a partial and tentative judicial defense of tribal rights. Yet the Lone Wolf mentality survives and has even undergone a revival on the modern Court, largely at the instigation of Chief Justice Rehnquist.

The article begins by holding up as examples three cases decided in 1999, by the U.S. Supreme Court, the Navajo Nation Supreme Court, and the California Supreme Court. The first two reaffirmed Indian sovereignty and treaty rights. The California court, dealing with an Indian casino issue, went against tribal interests over a strong dissent, but the decision quickly boomeranged as the people of California overruled their judges to allow vastly expanded gaming on Indian lands.

The article then goes back in time to review Lone Wolf and its progeny, pointing out how even the Warren Court, as late as 1955, outdid Lone Wolf in showing disregard for Indian property rights under the Constitution. The article surveys several key cases after 1955. Some of these countered the Lone Wolf mentality, but they also reveal Rehnquist's growing influence. The Court in 1999, for example, reaffirmed Indian treaty rights in a 5-4 decision barely noticed except by Indian law specialists. But Rehnquist's dissent, among other startling moves, sought to resurrect an anti-Indian rule of treaty interpretation so dated and extreme it was rejected in 1905 by the same Court that decided Lone Wolf. Instead of construing relevant law in favor of Indian treaty rights, as the Court has at least purported to do since long before Lone Wolf, Rehnquist strained to uphold the legality of an Indian removal order dating from 1850.

The article closes by discussing two cases decided in 2001 (one unanimous and one over a notably weak dissent) in which Rehnquist wrote or joined the Court's opinion. Both cut back Indian sovereignty in terms suggesting a triumphal revival of the Lone Wolf mentality in the new millennium, and both suggest that this revival faces little effective opposition on the Court.

Keywords: American Indian, Native American, indigenous, tribal sovereignty, treaty rights, Indian gaming, Indian casinos, race, ethnicity, identity, culutre, genocide, constitutional law, legal history, Supreme Court, California Supreme Court, Navajo Nation

JEL Classification: K10

Suggested Citation

Wildenthal, Bryan H., Fighting the Lone Wolf Mentality: Twenty-First Century Reflections on the Paradoxical State of American Indian Law. Tulsa Law Review, Vol. 38, No. 1, p. 113, 2002, Thomas Jefferson School of Law Research Paper No. 480885, Available at SSRN: or

Bryan H. Wildenthal (Contact Author)

Thomas Jefferson School of Law ( email )

701 B Street
Suite 110
San Diego, CA 92101
United States

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