The Renaissance of Tribal Sovereignty, the Negative Doctrinal Feedback Loop, and the Rise of a New Exceptionalism
Responding to Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law , 119 Harv. L. Rev. 431 (2005)
In (Native) American Exceptionalism in Federal Public Law, Professor Frickey elegantly describes recent trends in federal Indian law, and makes a convincing case for the exceptionalism of the field. Professor Frickey’s searching analysis of the Justices’ various opinions in United States v. Lara, and the ways in which these opinions highlight the “constitutional crisis” lurking in federal Indian law, is deep and apt. I also agree with his prescription that the Court should resist the “seduction of coherence.” Cleaning up Indian law in the ways portended by Justices Kennedy or Souter, and in at least one of the ways suggested by Justice Thomas, in their respective Lara opinions would do harm to a range of jurisprudential and normative commitments. Professor Frickey canvasses these commitments thoroughly, and there is no need to paraphrase his points.
Instead, I want to sketch out, in an introductory fashion, an idea about why members of the current Court, who otherwise share relatively little in terms of their jurisprudential or political leanings, appear to be so readily seduced by the same siren. If we accept Professor Frickey’s damning critique of the Court’s behavior in federal Indian law, as I think we should, how do we explain that behavior? This short Reply to Professor Frickey’s article suggests that the Court lacks an appropriate and realistic vision of American Indian tribes as sovereigns in the modern context. Presented with several fairly unexceptional instances of tribes acting as sovereign governments, the Court has created a new American Indian law exceptionalism in recent years, adopting rationales to reject exercises of tribal power on grounds that are inconsistent with doctrinal and interpretive norms in other fields of law. This suggestion is not at odds with Professor Frickey’s observations that the Court is abandoning the previous form of Indian law exceptionalism in favor of apparent coherence. To the contrary, the Court’s new exceptionalism merely highlights that the Justices are not, and cannot be, successful at integrating federal Indian law into other fields. The Court lurches towards norms that appear to smooth over American Indian law’s frayed edges, only to tear holes in doctrinal and interpretive fabric elsewhere.
119 Harv. L. Rev. F. 47 (2005) | DOWNLOAD PDF
