Noted scholars in the field of Federal Indian Law have recently argued that just like Indian tribes, “Federal Indian Law” is truly “sui generis” and they see a great danger in the Supreme Court’s current trend which according to them is attempting to harmonize or integrate federal Indian Law with other fields of constitutional law.¹ One of the greatest problem, according to some of these scholars, is that the Court has moved away from foundational principles established in the so-called Marshall trilogy,² and has adopted a subjectivist approach³ where the Court’s Federal Indian Law decisions are influenced by its general agenda tending to disfavor racial preference, while favoring majoritarian values, and state’s rights.⁴ Other scholars have taken a different view and argued that trends in constitutional law have always had an influence on the Court’s Indian decisions and yet Indian law and the tribes have managed to survive the vagaries of the different constitutional winds influencing the Court’s jurisprudence.⁵

While it is true that the roots of federal Indian law may have been in constitutional law, at least one scholar has persuasively argued that pluralist theories are at the roots of the more recent political re-conceptualization of Indian tribes as governments.⁶ Seeing the pitfalls of the current tribal political sovereignty doctrine as implemented by the Rhenquist Court, other scholars have attempted to redirected the debate by focusing on Tribal cultural sovereignty or human rights. These scholars argue that Indian tribes may be better off framing the debate in terms of cultural rights, rather than political rights.⁷

Focusing on four areas of Constitutional law: Federalism, property rights, religious liberties, and equal protection, I explore the validity of three propositions. First, whether Indian law is truly “sui generis” or whether it can co-exist with the Court’s current doctrines influencing the field of constitutional law. Secondly, whether Federal Indian law can still fulfill the function of, as stated by Felix Cohen, the “miner’s canary” for other areas of constitutional law.⁸ Finally I examine whether the Court’s current understanding of pluralism can be reconciled with, or even supportive of, the tribes’ effort at political and cultural sovereignty. Here I explore the difference between how the Court has treated Indians and tribes as compared to other groups.

The second part of the presentation analyzes how the US Congress has treated Indian tribes over the past 20 years or so and measures that record with the Court’s record in Federal Indian law. In that period, Congress has shown a willingness to enact pro-tribal legislation either placing tribes on a quasi parity with states or giving rights to tribes and Indians in areas such as affirmative action and religious liberties which have not been given to other minorities.⁹ The analysis reveals that the Court’s current vision of federalism favoring states’ rights at the expense of Federal power, refuses to recognize a legitimate place for Tribes within the federalism calculus.¹⁰ As a result, the Court’s federal common law jurisprudence concerning the political powers of tribes vis a vis the states seems totally disconnected from the policies of Congress as reflected by its legislative record over he last twenty years. The issue here is whether the Court will continue to respect the choices made by Congress in such legislation in light of its eagerness to ignore Congressional policy in the area of political sovereignty, and its current dislike for legislation not respectful of state rights, or favoring racial groups and religious minorities.¹¹

My preliminary conclusions are that while nothing indicates that the current Court is willing to recognize more rights for tribes if they are treated as religious/ethnic group, the Court may continue to uphold Congressional legislation granting tribe’s preferential treatment as long as the Court views Indians as members of political quasi sovereign nations and not as another racial minority. Similarly the Court will continue to respect Indian religious rights as long as these right are viewed as cultural rights of distinct political entities. This conclusion however demonstrates an irony: At the same time that the Court is engaged in a vigorous campaign to erode the political rights of tribes over non-Indians within their reservations, the political status of tribes and their members is more crucial than ever to the judicial recognition of their religious, property, and cultural rights. Yet the practical reality within Indian reservations is that in order to protect their culture, Indian tribes need more than ever to control the reservation environment which includes the activities of non-Indians if for no other reason that these activities are impacting the reservations’ cultural environment more than ever.

1. See for instance Philip Frickey, A Common Law for Our Age of Colonialism, 109 Yale L. Journal 1 (1999) and David Getches Beyond Indian Law: The Rhenquist Court’s Pursuit of States’ Rights, Color Blind Justice and Mainstream Values, 86 Minn. L. Rev. 267 (2001).
2. See Philip Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 Harv. L. Rev. 381 (1993). The Marshall trilogy refers to the Court’s 1820's and 30's three landmark decisions in Johnson v. M’Intosh, Cherokee Nation v. Georgia, and Worcester v. Georgia.
3. See David Getches, Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 Cal. L. Rev. 1573 (1996).
4. See David Getches, Beyond Indian Law.
5. See Yuanchung Lee, Rediscovering the Constitutional Lineage of Federal Indian Law, 27 N.M. L. Rev. 273 (1997).
6. See Dalia Tsuk, The New Deal Origins of American Legal Pluralism, 29 Fla. St. U. L. Rev. 189 (2001).
7. See Wallace Coffey and Rebecca Tsosie, Rethinking the Tribal Sovereignty Doctrine: Cultural Sovereignty and the Collective Future of Indian Nations, 12 Stan. L. Pol’y Rev. 191 (2001),
8. More recently professor David Getches has asserted that the Rhenquist Court was using its Federal Indian law decisions as a crucible to promote its greater constitutional law agenda. See Beyond Indian Law. My analysis here confirms that while asserting that federal Indian law decisions are being used as a crucible may be somewhat of an overstatement, the Court’s Federal Indian law decisions may have shown a trend before this trend became evident in other areas of constitutional law. That is the Court’s use of Federal common law to promote a state right’s agenda in the face of congressional policy to the contrary.
9. See for instance the Indian Child Welfare Act, the Native American Grave Protection Act, the 1994 Indian religious Freedom Act Amendments, the Environmental Acts, (CAA, SDWA, and CWA), the Duro-fix legislation, and the various treaties giving tribes special property type rights in water or off-reservation hunting and fishing.
10. See generally, Alex Tallchef Skibine, The Court’s Use of the Implicit Divestiture Doctrine to Implement its Imperfect Notion of Federalism in Indian Country, 36 Tulsa L. J. 267 (2000). The problems related to the integration of federal Indian law into the main body of constitutional law, therefore, naturally flows from the uncertainty surrounding the place of tribes within the Constitutional framework and within the United States political system.
11. Because tribal membership has a racial component, some scholars have questioned the constitutionality of such legislation See L. Scott Gould, Mixing Bodies and Beliefs: The Predicament of Tribes, 101 Colum. L. Rev. 702 (2001).