Three perversities of Indian law

Abstract

I. INTRODUCTION The development of federal Indian law-among its many other faults-has been marked by an inattentiveness to dynamic effects and incentives. Jurisdictional rules have been crafted retrospectively rather than prospectively; the bench has been more prone to ask whether the non-Indian standing before them should have been subject to reservation rules than what would follow in the future for Indians or non-Indians from subjecting similarly-situated non-Indians to, or exempting them from, tribal jurisdiction.1 A constitutional order for an entire level of government has been assembled haphazardly and piecemeal, with no moment of attention to how the pieces of it fit together. Partly as a result, reservation governments have been left with incentives to avoid precisely the kinds of economic and institutional development that are central goals of post-1970 federal Indian policy.2 In this Article, I trace out this perverse structure of contemporary Indian law. The Article thus subjects the corpus of Indian law to an internal rather than an external critique. External critiques have been common in the literature, pointing to racist assumptions at the foundation of the structure of Indian law, raging against the land seizures and expropriations that reduced Indians to a state of dependence, and imagining an alternative of undiminished sovereignty of Indian nations.3 These have often invoked principles of natural or customary international law against the whole history of U.S.-Indian relations, and have been influential within the subfield. Unsurprisingly, notwithstanding their moral force, these have not been especially influential outside the Indian law subfield or on the bench. As John Marshall observed at Indian law's birth, the judges of a legal system are poorly placed to adjudge the system under which they sit wholly illegitimate.4 There is real bite in the old joke that studying federal Indian law makes everyone a crit, but that has tended to marginalize the subfield, and I am to criticize without being (in that sense) critical. I think there is more promise in critiques that are external to twentieth-century Indian law but not to the American legal order-for instance, to originalist argument that Congress' putative plenary power to regulate tribes' internal affairs exceeds its legitimate authority under the Constitution, 5 or to a critique of the abuse of the idea of and of the self-dealing of the United States government as trustee. The plenary power doctrine and the trusteeship doctrine are central pillars of modern Indian law, and rejecting either would require a radical restructuring of that body of law, but it would not require (as external critiques sometimes seem to) rejecting the constitutional order, or American suzerainty over Indian tribes, or the settlement of non-Indians on the North American landmass. The argument of this Article is still less radical. It neither criticizes the whole of Indian law from a perspective outside the American legal order nor knocks out any of the central pillars of Indian law. It leaves untouched the concepts and meanings of domestic dependent nationhood, trusteeship, plenary power, and so on, objectionable though some of these are. The object of criticism here is the particular forms that tribal jurisdiction have taken since the Indian Reorganization Act,7 and indeed primarily during the era of self-determination spanning from 1970 to the present. The wrong turns that it identifies all lie within the past thirty years, and the grounds of critique all lie within stated federal policy. Judicial interpretations of tribal self-government and sovereignty during the era of selfdetermination have created perverse consequences that are not demanded even by the overarching terms of federal Indian law and policy. For all that the terms of the critique are not radical, the consequences may well be. These policy and jurisprudential mistakes have been far-reaching. …