California Law Review
David H. Getches, Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 Calif. L. Rev. 1573 (1996), available at https://scholar.law.colorado.edu/faculty-articles/682.
For a century and a half, the Supreme Court was faithful to a set of foundation principles respecting Indian tribal sovereignty. Though the United States can abrogate tribal powers and rights, it can only do so by legislation. Accordingly, the Court has protected reservations as enclaves for Indian self-government, preventing states from enforcing their laws and taxes, and holding that even federal laws could not be applied to Indians without congressional permission. Recently, however, the Court has assumed the job it formerly conceded to Congress, considering and weighing cases to reach results comporting with the Justices' subjective notions of what the Indian jurisdictional situation ought to be. This new subjectivist approach, the author argues, severs tribal sovereignty from its historical moorings, leaving lower courts without principled, comprehensible guidance. Tribes hold distinct legal rights in treaties and other laws. They strive to perpetuate their cultures and land base through governance. But now they are left to the vicissitudes of Court majorities that depend on the perceptions of culturally alien Justices in individual cases. The author also assesses prospects for returning to foundation principles. Although most of the current Court accepts subjectivism, he concludes that a return is possible if one or more Justices assumes intellectual leadership in Indian law cases.
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