Double Bind: Indian Nations v. The Supreme Court
Responding to Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law , 119 Harv. L. Rev. 431 (2005)
American Indian nations find themselves in a double bind. If they fail to exercise their retained sovereign powers, the Supreme Court leaves them alone, but in so doing they rob themselves of the ability to govern themselves, promote the well-being of their people, nurture economic development, preserve their cultures, and connect with the sacred. If they exercise their sovereign powers and begin to achieve these long-sought goals, the Supreme Court reins them in, worried about the effects of tribal sovereignty on the non-Indians with whom Indian nations cannot help but come into contact and sometimes conflict. They’re damned if they do and damned if they don’t.
The Supreme Court finds itself in a similar, but different, double bind. The Court cannot seem to live with Indian nations; those nations do not fit easily into the constitutional structure and their place in the federal system appears obscure and anomalous. Yet the Supreme Court cannot live without them either; much as the Court would like to limit tribal sovereignty, it is neither equipped nor inclined to erase tribal sovereignty entirely. Indian nations are not only mentioned in the Constitution, but are also the subject of an entire Title of the United States Code. Writing Indians out of the Constitution and deleting Title 25 of the U.S. Code would appear to be beyond the legitimate powers of the Court.
As Professor Philip Frickey explains in his excellent article, (Native) American Exceptionalism in Federal Public Law, an increasing number of Justices on the Supreme Court are getting more and more distraught about the anomalous nature of tribal sovereignty. With increasing fervor, some Justices have suggested wholesale reconsideration of the place of Indian nations in the constitutional structure. Rather than deferring to Congress to negotiate and legislate on what are obviously political questions of the highest order, or applying longstanding canons of interpretation in federal Indian law, these Justices seek to harmonize inconsistent precedents and conflicting policies toward Indian nations in a manner that would both subordinate those nations to state governments and limit their ancient rights and inherent sovereign powers. The Court has moved in this direction by using federal common law — a polite way of saying that the Justices of the Supreme Court have taken it on themselves to write (or rewrite) the law so as to increase state power in Indian country and to decrease the powers and immunities of Indian nations. Why are they doing this?
In his usual insightful and perspicuous fashion, Professor Frickey provides an answer to this question. In so doing, he illuminates the obscure, explains the incoherent, and opens a path to break through old conundrums. He urges the Justices to learn to live with ambiguity. They ought to do so, he argues, because the nature of federal Indian law requires negotiating between the incompatible premises of constitutionalism and colonialism. The best we can do is to minimize the unjust consequences of colonialism and this cannot happen unless the Court learns to tolerate anomalies, apply different legal standards in different contexts, and create an uneasy peace between laws promulgated in different eras that were designed to further opposing public policy agendas.
This is an attractive proposal and one I endorse. I write merely to emphasize a potential pitfall. This approach to Indian law may be helpful to Indian nations, but, applied in the wrong way and with the wrong values, it could erode tribal rights and powers even further.
119 Harv. L. Rev. F. 1 (2005) | DOWNLOAD PDF
