I wanted to begin this series for SCOTUSblog by discussing some fundamentals (and fundamental confusions) of federal Indian law. Despite the common understanding that federal Indian law is difficult and confounding, I teach my students that its foundational principles are actually fairly simple. Federal law is supreme in Indian affairs, preempting state law (Washington v. Cougar Den). Tribal nations (or “Indian tribes,” to use the parlance of the Constitution) are sovereign governments (United States v. Lara). The judiciary is to interpret ambiguous treaty and statutory provisions to the benefit of tribal interests (Herrera v. Wyoming). Congressional enactments rationally related to the fulfillment of that responsibility are constitutional (Morton v. Mancari).
Despite this relative simplicity, Supreme Court justices regularly complain that federal Indian law precedents are difficult and even incompatible with the Constitution. Justice Clarence Thomas, known for regularly assailing federal Indian law precedents, decried in 2004 “the confusion reflected in our precedent” in a case involving the power of Congress to restore or reaffirm tribal nations’ inherent power to prosecute nonmember Indians. Justices Samuel Alito and Brett Kavanaugh repeatedly asserted during one oral argument that an equal protection challenge to the Indian Child Welfare Act (a 1978 federal law that seeks to keep Indian children with Indian families) raised “difficult” questions. (Kavanaugh even wrote separately to encourage a future vehicle to challenge aspects of the act.) They were joined by the federal government’s counsel, there to defend the statute, who nevertheless opined during a series of hypothetical scenarios from the court that these questions were “difficult to defend.”
In fact, in the entire history of federal Indian affairs enactments, only two federal statutes have been struck down by the Supreme Court. One case, 1911’s Muskrat v. United States, taught in federal courts classes nationally, involved a strange statutory provision that allowed Cherokee tribal citizens to challenge an act of Congress only potentially impacting them, essentially authorizing the federal judiciary to render an advisory opinion. The second law, struck down twice by the court, allowed first the Interior Department and then tribal nations to confiscate “de minimus” property interests in Indian lands without compensation (see Hodel v. Irving and Babbitt v. Youpee).
And yet the litany of judges figuratively throwing up their hands in frustrated confusion continues. Perhaps it’s useful to separate the areas of confusion into three buckets.
The first bucket is Congress. Thanks to the Indian commerce clause and to the exercise of the treaty power, Congress has first stab at making Indian affairs policy. In the history of federal Indian law and policy, Congressional policy has vacillated between two opposing poles. On one hand, from the founding until the late 1960s or early 1970s, Congressional policy more or less consistently favored the slow eradication of tribal governments and Indigenous land holdings. Congress wavered on how to go about this project. At times, Congress directly sought to scrub out whole regions of Indian country, as it did during the early- to mid-19th century’s Removal Era and the mid-20th century’s Termination Era. Mostly, Congress sought to create incredibly difficult conditions for tribal nations that might force them into oblivion, such as the Allotment and Assimilation Era of the latter half of the 19th century. In the 1970s until the current period, an era we call the Self-Determination Era, Congress has aggressively supported tribal interests – the polar opposite policy from removal, termination, and assimilation. Despite congressional consistency for the last 50 years, Thomas still has referred to Indian affairs policy by the inaccurate and questionable label, “schizophrenic.” This is because such vacillating policies, for Thomas, create inconsistent precedents.
The second bucket is jurisprudential. Recently, the court lamented the “confusion” in its precedents that have sustained congressional power without identifying the source or scope of that power (see Haaland v. Brackeen). As far back as 1886, in United States v. Kagama, for example, the court described the relationship of Indian tribes to the national government as “an anomalous one, and of a complex character.” Perhaps the most infamous incidence of confusion was in Oliphant v. Suquamish Indian Tribe and United States v. Wheeler, decided 16 days apart in 1978. In the first case, the court concluded that inherent tribal powers can be divested through an “unspoken assumption” of federal, state, and tribal actors in the absence of an act of Congress regulating or abrogating that power, while in the second, the court concluded that tribal powers are retained absent explicit divestiture through an act of Congress.
The third bucket of confusion arises from the court’s musings about the policy implications of its decisions. For example, complexities involving Indian country criminal jurisdiction long have perplexed the judiciary, with Congress doing little to better the situation (see Washington v. Yakima Indian Nation). Luckily, tribes and local governments usually choose to reach agreement amongst themselves about how to police Indian country (see United States v. Cooley). In recent years, the court has both identified jurisdictional complexity as a problem (see McGirt v. Oklahoma’s dissent arguing against a shift from state to federal criminal jurisdiction on the Creek Reservation) and attempted to resolve it by acknowledging additional state authority over Indian country crime (see Oklahoma v. Castro-Huerta). All this despite the court’s documented lack of institutional capacity to make sound policy judgments in Indian affairs.
Where does this leave us? Recently, scholars such as Michelle Bryan and Kekek Stark have taken up suggestion from Justices Neil Gorsuch and Thomas that the court’s Indian law precedents arising from an “atmosphere” of colonialism be reconsidered. Undoing some of the most odious precedents of the past that are inconsistent with the modern tribal self-determination would undoubtedly clear up most of the confusion. But it is my sense that those judges most likely to express frustration with the precedents may also be frustrated with the very idea of tribal sovereignty. So we may be stuck going in circles, with a federal Indian law that is both needlessly confusing and difficult. Throughout this series, I will attempt to further unpack how those difficulties have been addressed and how that circle might be squared.
