Dualism and the Dialogic of Incorporation in Federal Indian Law
Responding to Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law , 119 Harv. L. Rev. 431 (2005)
Since 1975, the Court’s record on Indian issues has not been favorable to Indian tribes, to say the least. The Court has systematically limited the inherent sovereign powers possessed by tribes, while at the same time increasing the power states can exercise within Indian reservations. Professor Frickey argues that in the last thirty years, the Court has abandoned the “exceptionalism” that had governed the field of federal Indian law, replacing it with a federal “common law for our age of colonialism.” Because Professor Frickey argues that this move was made out of a concern that exceptionalism was not consistent with norms derived from general American public law, the model can be described as “integrationist” in that its goal is to integrate federal Indian law with “general constitutional and subconstitutional” values of American public law. According to Professor Frickey, this exceptionalism first surfaced with Chief Justice John Marshall’s description of Indian tribes as domestic dependent nations, and the Court’s subsequent holding that tribes, while being located within the various states of the Union, were nevertheless not subject to state authority. This exceptionalism continued after the Marshall era with decisions that recognized congressional plenary power over Indian tribes, but developed an approach respectful of tribal sovereign rights, which Professor Frickey, in (Native) American Exceptionalism in Federal Public Law, calls a “plenary power, canonical judicial interpretation” model.
Although Professor Frickey acknowledges that the exceptionalism model suffers from inherent contradictions and confusions, he prefers it to the Court’s new course. Thus he argues that “exceptionalism” should be reinstated as the normative concept governing federal Indian law and that the Justices should have the “courage of their confusion.” Moreover, the Court should “avoid the seduction of coherence” that attempts to reconcile federal Indian law with normative concepts from general public law. Implied in his argument is the notion that federal Indian law should not be affected by constitutional norms because Indian tribes have always been, and should remain, outside our constitutional system, and not be a part of “Our Federalism.”
I take issue with Professor Frickey in two respects. First, his conception of the evolution of federal Indian law from exceptionalism to integrationism fails to acknowledge the dualism which has always existed in the field. This dualism is reflected on one side by those like Chief Justice John Marshall who take the position that before incorporation into the United States, Indian tribes were independent sovereigns enjoying all the attributes of sovereignty possessed by any sovereign nations. On the other side are those like Justices Johnson and Miller who believe that Indian tribes, being neither Christian nor civilized, never possessed the inherent sovereign status of civilized Christian nations.
Secondly, Professor Frickey’s reluctance to think of tribes as having been “incorporated” into the United States political system may cause him to underestimate what was really happening in the Supreme Court. I believe that what has been at stake in the last thirty years has been which entity, as between the Congress or the Court, controlled the terms under which Indian tribes are incorporated into the United States.
119 Harv. L. Rev. F. 28 (2005) | DOWNLOAD PDF
