The Supreme Court and Federal Indian Policy

• Publication year: 2021

85 Nebraska L. Rev. 121. The Supreme Court and Federal Indian Policy

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Matthew L.M. Fletcher(fn*)

The Supreme Court and Federal Indian Policy

TABLE OF CONTENTS

I. Introduction ....................................................... 122
II. Federal Policy on Indian Affairs .................................. 130
A. Sources of Federal Indian Policy ............................... 135
B. Modern Congressional Statements of Federal Indian
Policy ......................................................... 140
1. Self-Governance ............................................. 141
2. Economic Development, Tax Authority, and
Immunities .................................................. 144
3. Tribal Court Development .................................... 147
4. Sovereign Immunity .......................................... 150
C. Modern Presidential Statements of Federal Indian
Policy ......................................................... 151
1. Nixon's Self-Determination Address (and
Kennedy and Johnson)........................................ 152
2. Government-to-Government Relationship ....................... 153
III. Ungrounded Federal Judge-Made Indian Law, or the
Supreme Court as Federal Indian Policymaker ...................... 154
A. The Court Doubts the Inherent Sovereign Powers of
Indian Tribes and Expands the Doctrine of Implicit
Divestiture ................................................... 157
B. The Court Doubts that Tribal Economic
Development and Taxation Authority are Tribal
Government Necessities ........................................ 160
IV. The Middle Ground--Preconstitutional Congressional
Authority over Indian Affairs ..................................... 163

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A. The Court Doubts the Existence of Congressional
Plenary and Exclusive Power over Indian Affairs ................ 164
B. A Preconstitutional Congressional Power to
Legislate in Indian Affairs? ................................... 167
V. Consistent-with-Federal-Policy Test ................................ 168
A. Justice Thomas's Lara Concurrence .................. 169
B. Explicit Federal Indian Policy Should Drive Federal
Indian Common Law Relating to the Inherent
Authority of Indian Tribes ...................................... 172
1. Revisiting Hicks and Its "Open" Question ........ 174
2. Revisiting Atkinson Trading ..................... 176
3. The Trickier Case--Revisiting Oliphant .......... 177
C. The Act of 1871 and "Residual Sovereignty" ...................... 179
D. The Limitations of the Consistent-with-Federal-
Policy Test ..................................................... 181
E. Concerning the Sovereignty of Indian Nations .................... 182

I. INTRODUCTION

Federal Indian law is dynamic, and though few outside the field acknowledge it, cutting edge.(fn1) In the last few decades, coinciding with the rise of Indian gaming,(fn2) Indian tribes, individual Indians, and In

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dian-owned businesses have acted far beyond the direction of statutes and agency promulgations. Indians and Indian tribes are too energetic and resourceful to wait for Congress or the agencies to make policy decisions.(fn3) Federal Indian law and policy is no longer driven by Congress, the bureaucracy, or even the states.(fn4) Indian tribes lead the way and the rest have to catch up.(fn5) It appears that Congress and the Executive Branch may never catch up,(fn6) having already adopted a reactionary approach to deal with Indian issues by relying more on casespecific legislation(fn7) and claims adjudication in the administrative courts.(fn8) Now that Indian actors lead the way, there may never be another time when Congress or the President makes broad, sweeping changes to federal Indian policy.(fn9)

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As an institution, federal courts are reactionary.(fn10) They cannot decide an issue without a party bringing suit in the first instance. And, though it is the Court's job to interpret the Constitution, in the Indian cases the Court has little or no constitutional text to interpret. Indian tribes in recent decades have outpaced the law in many ways. Through their commitment to tribal self-determination, Congress and the Executive have opened the door--and tribes have finally sprinted through.(fn11) Each tribe is a laboratory for self-determination,(fn12) business ideas,(fn13) and intergovernmental relations.(fn14) As a result, the fed

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eral courts have had fewer and fewer authorities to rely on to decide disputes, opening the door for the Supreme Court to exercise additional latitude in deciding Indian cases according to its own preferences.(fn15) The anchor preventing the Court from taking the law into its own hands--the decades of federal law and policy dictating to tribes how to civilize themselves--has begun to rust away.

And yet it is a dangerous time for Indian tribes. Observers of the current state of Indian affairs are aware that Indian gaming underlies nearly all of the major issues facing Indian

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tribes in their relations with federal, state, and local governments.(fn16) Huge ethics scandals involving high-ranking Republican leaders relate directly back to the use and abuse of Indian gaming revenues.(fn17) Already huge land claims in New York and elsewhere are being affected by the potential to use recovered lands for gaming operations.(fn18) Gaming politics also interfere with the quest for federal recognition of historically oppressed Indian tribes.(fn19) State governments are looking to wealthy Indian tribes as cash cows to balance state budgets.(fn20) The taking of land into trust for the benefit of Indian tribes--one the most important provisions of the Indian Reorganization Act (IRA)--has been virtually shut down by the politics of (and derivative litigation involving) Indian gaming.(fn21) Purely internal tribal matters, such as

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membership questions, are affected by gaming.(fn22) Some wealthy tribes use gaming revenues in efforts to influence state elections.(fn23) Finally, and most importantly, the backlash against Indian gaming feared since its early days is now here and flourishing.(fn24)

Concurrent with these recent events is the hyper-politicization of federal Indian law. Until the 1977 case of Delaware Tribal Business Committee v. Weeks,(fn25) the Supreme Court treated Indian cases with a soft touch, preferring to leave the policy choices to Congress and the Executive, often invoking the political-question doctrine in refusing to review the constitutionality of Indian legislation.(fn26) But the explicit rejection of the political-question doctrine in Weeks was a signal of a

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parallel phenomenon--the increasing tendency of the Court to make policy in the field of federal Indian law.(fn27) The Court's entrance into the field of federal Indian policy is unwelcome, largely because the Court's policy choices are frequently uneducated in terms of their onthe-ground impacts,(fn28) but also because they are in direct contravention of explicit congressional and Executive Branch policy choices.(fn29)

Professor Philip P. Frickey argued in 1990 that congressional intent rarely provided much guidance to the Court in some of the cases this Article discusses.(fn30) His analysis of the Court's cases did not touch upon the explicit statements of congressional and Executive Branch federal Indian policy.(fn31) He proposed to "construct an antiformalist alternative for federal Indian law scholarship by relying upon recent writings about practical legal reasoning."(fn32) But more recently, Professor Frickey declared that "it is exceedingly doubtful that . . . judicial solutions are among [the answers]" to the problem of American Indian law.(fn33)

In contrast to Professor Frickey's earlier proposal, this Article proposes that the Court should follow congressional and Executive

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Branch federal Indian policy when confronted with cases where no treaty, statute, or regulation controls, proposing a test based on language contained in Justice Thomas's concurrence in United States v. Lara.(fn34) Particularly in the area of federal Indian law known as inherent tribal authority, as limited by the doctrine of implicit divestiture,(fn35) this new analytical structure would allow the Court to make decisions that more closely parallel the national interest as identified in explicit statements of federal Indian policy.

Part II of this Article describes current federal Indian policy as articulated in the collection of federal statutes, regulations, and other official pronouncements issued by Congress and the Executive since 1970. These statements of federal Indian policy are supportive of tribal self-determination, tribal economic development, and tribal court development. Part III argues that the Supreme Court has increasingly acted as the leading federal Indian policymaker, leading to unwelcome results for the federal government, Indians, Indian tribes, states, and non-Indians. The Court's federal common law cases often contravene express federal Indian policy. Part IV demonstrates that the unusual extraconstitutional status of Indian tribes and the limited constitutional authority for federal government both open the door for the Court to act as a sort of plenary federal Indian policymaker. Part IV also describes and critiques the tenuous middle ground that a bare majority of the Supreme Court is willing to follow in relation to the plenary and exclusive authority of Congress to make federal Indian law and policy--a sort of preconstitutional federal power. Part V proposes that the Supreme Court adopt, in part, Justice Thomas's proposal for a "consistent-with-federal-policy" test, whereby the Court would not restrict tribal inherent authority absent express federal Indian policy to the contrary. This test relieves the Court of its uncomfortable and unwelcome policymaking activities in Indian cases...