The Supreme Court and Federal Indian Policy
In this article, I identify a disconnect between the national policy relating to Indian affairs as established by Congress and the Executive branch and as interpreted by the Supreme Court. The Court recently decided a case called United States v. Lara, which involved an attempt by Congress to reign in the Court's common law jurisprudence relating to tribal criminal jurisdiction. What makes this case unusual was that some Members of the Court, as well as a large body of federal Indian law scholars, cannot find textual support for Congress's actions relating to tribal affairs and explicitly question whether Congress has any authority at all in this area. Though the Lara Court upheld the Act of Congress at issue, four Members of the Court (excluding Justice O'Connor) either dissented or ruled in favor of the United States solely because of a procedural technicality. In short, very little was decided in Lara. My article proposes a test whereby the Court follow a suggestion made by Justice Thomas (one of the four) to ignore Congress's legislation relating to tribal affairs, which may or may not be constitutionally authorized, but to focus instead on the explicit statements of federal Indian policy. This test avoids the constitutional questions while providing the Court a relatively simple means to decide its Indian cases. As Indian cases on tribal jurisdiction and taxation authority reach the Court in disproportionate numbers, this article should sharpen discussion on a frequently misunderstood area of constitutional law.
Fletcher, Matthew. "The Supreme Court and Federal Indian Policy." Nebraska Law Review 85 (2006): 121-185. (Work published when author not on Michigan Law faculty.)