The Supreme Court's Indian Problem

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This year, while accepting the "Rule of Law" award from the American Bar Association, Justice Breyer proclaimed that our constitutional system "floats on a sea of public acceptance." At that time, Breyer's statements were meant to highlight his expectation that the Court will decide its cases following the "rule of law."

However, Breyer's statement, while demonstrative of his faith in the rule of law, does not always ring true. In fact, as I argue, the Supreme Court often decides its cases by ignoring, rather than following, the rule of law. This problem is particularly acute in the body of federal Indian law - which has cast a disastrous shadow on tribal interests. Tribes have lost about three-quarters of their cases before the Supreme Court since 1988. Yet, curiously, prior to 1988, tribal interests won slightly more than half of their cases. What changed?

In this Article, I attempt to answer this question. I will show that the Court identifies important, unrelated constitutional concerns that arise often in Indian law cases - issues with which they and their clerks are familiar - and then decides those matters. Only afterward, and mostly as an afterthought, does the Court then turn to the federal Indian law questions. The Court's federal Indian law analysis takes a secondary and often inferior role.

The result of this obfuscation is an unrelenting assault on tribal interests before the Court - and the rule of law more generally. In this Article, I offer the first in-depth empirical assessment of the Supreme Court's recent Indian law decisions and argue in favor of a sweeping change in the means of analyzing Indian law. Instead of focusing on the Indian law questions, this Article shows how major Indian law cases were decided on other grounds to significant tribal disadvantage. Analyzing federal Indian law in this manner makes transparent the Court's frightening disrespect for the rule of law.


Work published when author not on Michigan Law faculty.