Document Type

Article

Publication Date

1-1-2000

Disciplines

Indigenous, Indian, and Aboriginal Law | Law

Abstract

This paper examines the Supreme Court's substantial abandonment of a territorially based conception of Indian tribal sovereignty in favor of a consent-based conception and its recent characterization of tribal sovereignty as a special right, which may be claimed only by weak and dependent tribes. It ultimately attributes these trends, in significant part, to the Supreme Court's increasing preoccupation with liberal goals in the decades following the Civil Rights Movement. The Supreme Court's use of liberalism to erode well-established Indian law doctrines suggests that the continued application of liberal ideals poses serious problems for multicultural societies like the United States. These problems include the abolition of Indian tribes' special status under the law and, more broadly, a threat to all subordinated groups of involuntary assimilation into the majority white culture. In part II, I analyze in chronological order several Supreme Court cases, decided within the last two decades that have made significant encroachments upon tribal sovereignty. This part demonstrates the prevalence of the two previously identified trends in the Supreme Court's recent Indian law jurisprudence: firstly, the move toward a conception of sovereignty which is entirely consent-based (i.e., the divestment of tribal sovereignty), and secondly, the view of tribal sovereignty as a special right belonging only to unsophisticated and economically disadvantaged tribes (i.e., the debasement of tribal sovereignty). The purposes of this part are threefold: 1) to demonstrate the degree to which the Supreme Court has, in recent years, shrunk the breadth of Indian tribal sovereignty-largely on its own initiative, 2) to demonstrate the vast shift in the Supreme Court's view of the justification for tribal sovereignty, and 3) to identify the implicit liberal bases of many of these decisions. Part III focuses more narrowly on two of the suspect methods the Supreme Court has used in recent cases to shrink and degrade tribal sovereignty: 1) ignoring or diminishing the force of the canons of construction in Indian law in order to reach a result unfavorable to Indian tribes, and 2) construing the legislative intent of acts of Congress without reference to subsequent legislative history, such as amendment or outright repudiation, in order to reach a result which disfavors Indian tribes and substantially erodes their sovereignty. This part demonstrates the lengths to which the Supreme Court has gone in pursuing its own assimilationist agenda in Indian law-which has come at a tremendous cost to settled expectations and tribal sovereignty. In part IV, I discuss the Supreme Court's use of social contract theory as an implicit basis of its decisions, especially those that evince a consent-based view of tribal sovereignty. Based on Rawls' version of social contract theory and Kymlicka's criticisms of Rawls, I argue that social contract theory does not adequately provide for the continuing viability of culturally distinct groups - especially those with their own claims to sovereignty. Additionally, I suggest that social contract theory is misapplied by the Court; that mainstream American society is unjust under Rawls' standards; that it makes no sense to force Indian tribes to create a just society according to social contract standards; and lastly, that the Supreme Court's view of Indian tribal governments as non-neutral or biased is based not on any substantive criticism of tribes derived from social contract theory, but rather on the racist idea that whiteness connotes neutrality whereas Indianness or color connotes bias or special interest. In part V, I argue that the Supreme Court is motivated to dismantle Indian sovereignty because of its increasingly liberal view that such sovereignty is a special, race-based right, which, through its very focus on race, violates liberal equality theory. I argue that this effect is indicative of the severe problems liberal equality theory poses for recognized Indian tribes, as well as for subordinated groups generally, and that the Supreme Court's degraded view of tribal sovereignty contrasts sharply with its view of state sovereignty as a necessary attribute of power. I conclude that liberalism must be drastically modified or abandoned in order to preserve the uniqueness of subordinated cultures in general and the sovereignty of Indian tribes in particular.

Publication Title

18 Buffalo Public Interest Law Journal 147

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