Double Bind: Indian Nations V. The Supreme Court
9 Pages Posted: 22 Nov 2005
This comment responds to Professor Philip Frickey's excellent article, (Native) American Exceptionalism in Federal Public Law, - Harv. L. Rev. - (2005), in which Frickey reacts to the Supreme Court's increasing discomfort with the exceptional character of the federal rules governing Indian nations. He argues that the Court fails to recognize that the anomalous character of the rules governing the relations between Indian Nations and the United States arises out of the need to reconcile the irreconcilable premises of constitutionalism and colonialism. He argues that the Court must learn to live with ambiguity and appreciate that it is not possible to apply all the norms usually applied in federal public law to Indian nations without doing grave injustice.
Although Professor Frickey is correct to argue that the Court must learn to live with inconsistencies and to appreciate the need for special rules associated with the special status of native nations, this comment argues that the Supreme Court also needs to pay better attention to granting Indian nations the same rights as non-Indians when Indian nations are similarly situated to non-Indians. In many ways, the Supreme Court has been denying justice to Indian nations both by denying them the special rights that adhere to their special status and by denying them rights and powers they would be granted if they were non-Indian owners or sovereigns. It is important to recognize when the Court accepts a reason for denying rights to Indian nations that it would reject if the case involved a non-Indian owner; the Court should refrain from doing this unless there is a compelling reason for treating the tribe differently.
Suggested Citation: Suggested Citation