Beyond Indian law: The Rehnquist Court's pursuit of states' rights, color-blind justice and mainstream values

Minnesota Law Review

Volumn 86, Issue 2, 2001, Pages 267-360

  Getches, David H ^a  

^a UNIVERSITY OF COLORADO   (United States)

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EID: 0037748688     PISSN: 00265535     EISSN: None     Source Type: Journal    
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References (491)

1. See FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 222, 241-42 (Rennard Strickland ed., 1982);
2. CHARLES F. WILKINSON, AMERICAN INDIANS, TIME, AND THE LAW 46-52 (1987).
3. See David H. Getches, Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 CAL. L. REV. 1573, 1575 (1996) (quoting a memorandum from Justice Antonin Scalia to Justice William Brennan, Jr. (April 4, 1990) (Duro v. Reina, U.S. Supreme Court No. 88-6546)) (emphasis added) (on file with the author).
4. See infra Part VI.A.
5. See infra Part V.
6. See infra Part VII.
7. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823).
8. 31 U.S. at 558-59.
9. Articles of Confederation, article IX.
10. Robert N. Clinton, The Dormant Indian Commerce Clause, 27 CONN. L. REV. 1055, 1147 (1995).
11. 31 U.S. at 558.
12. Madison wrote that in the Constitution, Congress's power "is very properly unfettered from two limitations in the articles of Confederation, which render the provision obscure and contradictory." He said that by trying "to reconcile a partial sovereignty in the Union, with complete sovereignty in the States" the Articles "endeavored to accomplish impossibilities." THE FEDERALIST No. 42, at 275 (James Madison) (Modern Library ed., 1937).
13. Articles of Confederation, article IX.
14. Marshall lived through and was personally aware of the debates of the Framers. He was a delegate to the Virginia Constitutional Convention of 1788 and participated in the debates that led to the state's ratification of the Constitution. See ALBERT J. BEVERIDGE, 1 THE LIFE OF JOHN MARSHALL 358-479 (1916). The Worcester decision was written during James Madison's lifetime when mistaking, let alone distorting, the intent or meaning of the Constitution would be highly unlikely. In an Indian decision dealing with the meaning of the Commerce Clause, Chief Justice Rehnquist referred to Marshall along with Madison and Hamilton as "three influential Framers." Seminole Tribe v. Florida, 517 U.S. 44, 70 (1996); see also Employees of the Dep't of Pub. Health & Welfare v. Dep't of Pub. Health & Welfare, 411 U.S. 279, 313-14 (1973) (Brennan, J., dissenting) ("This Court gives particular weight to pronouncements of Mr. Chief Justice Marshall upon the meaning of his contemporaries in framing the Constitution.");
15. Bruce E. Fein, Original Intent and the Constitution, 47 MD. L. REV. 196, 199-200 (1987) ("The opinions of Madison, Jefferson, Hamilton, Marshall and Story are entitled to great weight in the original intent debate. . . . [This] quintet is thus more likely than later generations to have correctly discerned tacit or express political understandings regarding the intended standard for constitutional interpretation."). On the value of contemporaneous construction, see, for example, National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 586-89 (1949), which relies upon an opinion written by Chief Justice Marshall who "wrote from close personal knowledge of the Founders and the foundation of our constitutional structure" to find that the District of Columbia should not be regarded as a state for diversity purposes. Id. at 587.
16. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832).
17. Robert Clinton traces the drafting process and concludes that the "simple reference to commerce with the Indians" proposed by committees charged with the project by the convention was "obviously viewed as synonymous with regulating Indian affairs or 'affairs with the Indians.'" Clinton, supra note 9, at 1156.
18. See 31 U.S. at 538; see also United States v. Forty-three Gallons of Whiskey, 93 U.S. 188, 198 (1876) (holding that Congress has the power to prohibit the sale of liquor in Indian country and on Indian lands ceded to the United States).
19. 31 U.S. at 561.
20. Id. at 553-54.
21. Id. at 555.
22. Charles Wilkinson discussed the cases for the period beginning in 1959 in his 1987 book, calling this the "modern era." See WILKINSON, supra note 1, at 1.
23. During the 1970s and 1980s, only three pre-Civil War cases were cited more often by the Supreme Court than Worcester v. Georgia: United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819); and Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). DAVID H. GETCHES ET AL., CASES AND MATERIALS ON FEDERAL INDIAN LAW 125-26 (4th ed. 1998).
24. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 159 (1982).
25. See United States v. Wheeler, 435 U.S. 313, 331-32 (1977).
26. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 (1978).
27. See McClanahan v. Ariz. State Tax Comm'n, 411 U.S. 164, 165 (1973).
28. See New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 325 (1983).
29. Williams v. Lee, 358 U.S. 217, 219-20 (1959) (recognizing that over the years, minor exceptions had been made: Indians had been allowed to sue in state courts and states had been allowed to prosecute non-Indians for crimes against non-Indian victims).
30. Id. at 220.
31. McClanahan, 411 U.S. at 168 (quoting Rice v. Olson, 324 U.S. 786, 789 (1945)).
32. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144-45 (1980).
33. Getches, supra note 2, at 1595-1620.
34. See Lincoln v. Vigil, 508 U.S. 182, 194 (1993) (citing Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)); Okla. Tax Comm'n v. Sac & Fox Nation, 508 U.S. 114, 123 (1993) (citing Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)). But see Alaska v. Native Vill. of Venetie Tribal Gov't, 522 U.S. 520, 531 n.5 (1998) (citing Worcester and Cherokee as standing for "old principles" and remarking that the tribe's argument relying on those cases "ignores our Indian country precedents").
35. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195 (1978) (holding that tribes lack inherent jurisdiction over reservation crimes by non-Indians); Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 160-61 (1980) (holding that the state can require a cigarette tax to be collected on reservation sales to non-Indians); Montana v. United States, 450 U.S. 544, 557-67 (1981) (holding that tribes have civil jurisdiction over non-Indians on non-Indian land only if certain tribal interests are implicated). In their milieu, it was reasonable to view these cases as aberrations, establishing narrow exceptions in light of difficult facts in the lower courts. Getches, supra note 2, at 1595-1613.
36. See Oliphant, 435 U.S. 191; Colville, 447 U.S. 134; Montana v. United States, 450 U.S. 544; see also WILKINSON, supra note 1, at 4-5 & n.11. By no means were all of the modern era cases favorable to Indians. With a few exceptions, however, the Court produced a fairly consistent and predictable pattern of decisionmaking during the modern era. Id. at 4-5. In them, the Court honored the foundational principles of Indian law, deferring to Congress, and, in the absence of congressional action, assuming the continuing power of tribal self-government. Id.
37. E.g., Mabo v. Queensland, 107 A.L.R. 1 (1992) (Australian High Court reversing Australia's old approach of rejecting aboriginal title, citing Johnson and Worcester); Guerin v. The Queen, [1984] 2 S.C.R. 335 (Canadian Supreme Court holding the government has a fiduciary duty with respect to Indian title, citing Johnson and Worcester); Sparrow v. Regina, [1990] 1 S.C.R. 1075 (Canadian Supreme Court recognizing aboriginal title subject only to legislative infringement for justifiable reasons, citing Johnson). See generally Ralph W. Johnson, Fragile Gains: Two Centuries of Canadian and United States Policy Toward Indians, 66 WASH. L. REV. 643 (1991).
38. See Alex Tallchief Skibine, The Court's Use of the Implicit Divestiture Doctrine to Implement Its Imperfect Notion of Federalism in Indian Country, 36 TULSA L.J. 267, 267 (2000) ("[T]he Supreme Court's current jurisprudence in the field of federal Indian law has mystified both academics and practitioners.");
39. Philip P. Frickey, A Common Law for Our Age of Colonialism: The Judicial Divestiture of Indian Tribal Authority over Nonmembers, 109 YALE L.J. 1, 4-5 (1999) ("Given the lack of guidance in positive law, the complexity of the issues, and the tangled normative questions surrounding the colonial displacement of indigenous peoples to construct a constitutional democracy, it is also not surprising that the resulting decisional law is as incoherent as it is complicated.");
40. Frank Pommersheim, Coyote Paradox: Some Indian Law Reflections from the Edge of the Prairie, 31 ARIZ. ST. L.J. 439, 439 (1999) [hereinafter Pommersheim, Coyote Paradox] ("[R]ecent developments in Indian law, particularly at the United States Supreme Court, threaten [a] well understood and precarious balance with a new, almost vicious, historical amnesia and doctrinal incoherence.");
41. Yuanchung Lee, Rediscovering the Constitutional Lineage of Federal Indian Law, 27 N.M. L. REV. 273, 275 (1997) ("Contemporary confusion in Indian law results from a failure to recognize Indian law's close familial ties to constitutional doctrines that lie at the core of the Supreme Court's concerns during the last century.");
42. Steven Paul McSloy, Back to the Future: Native American Sovereignty in the 21st Century, 20 N.Y.U. REV. L. & SOC. CHANGE 217, 218 (1993) ("[N]o area of American law is more distinct, anomalous, or confused than that relating to Native Americans.");
43. Frank Pommersheim, Tribal Court Jurisprudence: A Snapshot From the Field, 21 VT. L. REV. 7, 38-39 (1996) ("One need only read a sampling of recent United States Supreme Court Indian [l]aw opinions . . . to realize that the nation's high court has slipped into doctrinal incoherence.");
44. Laurie Reynolds, "Jurisdiction" in Federal Indian Law: Confusion, Contradiction, and Supreme Court Precedent, 27 N.M. L. REV. 359, 360 (1997) ("[F]or lower courts trying to decipher the implications of these pronouncements on tribal jurisdiction, the Court's conflicting signals have created confusion and uncertainty.");
45. Brad Jolly, Comment, The Indian Gaming Regulatory Act: The Unwavering Policy of Termination Continues, 29 ARIZ. ST. L.J. 273, 278 (1997) ("Over the past century, the legal fiction of federal Indian law has matured into a grotesque creature capable of inflicting instant disorientation, bewilderment, and nausea.");
46. Ray Torgerson, Note, Sword Wielding and Shield Bearing: An Idealistic Assessment of the Federal Trust Doctrine in American Indian Law, 2 TEX. F. ON C.L. & C.R. 165, 178 (1996) ("Most academics and courts agree that the area of Indian law is fraught with vacillation and incoherence.").
47. See generally Curtis G. Berkey, Recent Supreme Court Decisions Bring New Confusion to the Law of Indian Sovereignty, in RETHINKING INDIAN LAW 77 (National Lawyers Guild Committee on Native American Indian Struggles ed., 1982).
48. As if to respond to scholarly pleas for "coherence," Justice Souter has proposed a radical, but simplifying, extension of one of the once marginal, now pivotal cases in the Rehnquist Court's Indian law revolution: "If we are to see coherence in the various manifestations of the general law of tribal jurisdiction over non-Indians, the source of doctrine must be Montana v. United States . . . ." Atkinson Trading Co. v. Shirley, 121 S. Ct. 1825, 1835 (2001) (Souter, J., concurring).
49. GETCHES, supra note 21, at 140-90; see infra text accompanying notes 394-401.
50. WILKINSON, supra note 1, at 47, 110.
51. See COHEN, supra note 1, at 180-88; Dean B. Suagee, The Cultural Heritage of American Indian Tribes and the Preservation of Biological Diversity, 31 ARIZ. ST. L.J. 483, 495-98 (1999).
52. 492 U.S. 408 (1989).
53. See id. at 422-33.
54. See 2 ZIEGLER, RATHKOPF'S THE LAW OF ZONING AND PLANNING §§ 12.01, 12.04 (Edward H. Ziegler, Jr. rev. auth., 4th ed. 2001). "The requirement that zoning be 'in accordance with a comprehensive plan' is one of the most fundamental concepts in land use regulation." Id. at § 12.01. "[A] very close relationship between planning and zoning and other land use controls is mandated. Land use regulations must reflect, be harmonious with, follow and carry out designations in the [comprehensive] plan." Id. at § 12.04;
55. see also PATRICK J. ROHAN, 1 ZONING AND LAND USE CONTROLS § 1.02 [3], 6 id. § 37.01[1]-[2] (1978);
56. PETER W. SALISCH, JR. & TIMOTHY J. TRYNIECKI, LAND USE REGULATION: A LEGAL ANALYSIS & PRACTICAL APPLICATION OF LAND USE LAW 23 (1998).
57. Strate v. A-1 Contractors, 520 U.S. 438, 442 (1997).
58. Getches, supra note 2, at 1575.
59. Id.
60. Nevada v. Hicks, 121 S. Ct. 2304 (2001); Idaho v. United States, 121 S. Ct. 2135 (2001); Atkinson Trading Co. v. Shirley, 121 S. Ct. 1825 (2001); C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe, 121 S. Ct. 1589 (2001); Dep't of the Interior v. Klamath Water Users Protective Ass'n, 121 S. Ct. 1060 (2001); Arizona v. California, 120 S. Ct. 2304 (2000); Rice v. Cayetano, 528 U.S. 495 (2000); Amoco Prod. Co. v. S. Ute Indian Tribe, 526 U.S. 865 (1999); El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (1999); Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999); Ariz. Dep't of Revenue v. Blaze Constr. Co., 526 U.S. 32 (1999); Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998); Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751 (1998); Montana v. Crow Tribe of Indians, 523 U.S. 696 (1998); Alaska v. Native Vill. of Venetie Tribal Gov't, 522 U.S. 520 (1998); South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998).
61. 520 U.S. 438.
62. 121 S. Ct. 2304.
63. 522 U.S. 520.
64. 520 U.S. at 448-59.
65. 121 S. Ct. at 2313.
66. 522 U.S. at 532-34. There are 227 Native villages either organized pursuant to the Indian Reorganization Act or otherwise recognized as tribes by the United States. See Indian Entities Recognized and Eligible to Receive Services From the United States Bureau of Indian Affairs, 65 Fed. Reg. 13,298, 13,302-03 (March 13, 2000). The territory potentially governed by these villages was approximately forty-four million acres, the amount of land owned by the village corporations created under the Alaska Native Claims Settlement Act, had the Supreme Court not ruled that village lands were not "Indian country." Venetie, 522 U.S. at 524-25.
67. 526 U.S. 172, 195-208 (1999) (finding that hunting and fishing rights reserved by treaty were not abrogated by a subsequent Executive Order of removal, a treaty ceding Indian lands to the United States, or the admission of Minnesota into statehood).
68. See Figure 1. The data for Figure 1 were compiled by the author based on an analysis and tabulation of all Indian Supreme Court decisions for the periods indicated.
69. During its fifteen terms (1986-2001), the Rehnquist Court has decided forty Indian law cases; of those decisions, tribal interests have won nine cases, or 22.5% of the total. In its seventeen terms (1969-1986), the Burger Court decided sixty-seven Indian cases; tribal interests prevailed in thirty-nine cases, or 58% of the total. These figures represent decisions on the merits with a written decision. The author calculated these figures based on data compiled from his analysis of the Indian law cases for the period indicated.
70. Indian tribal interests lost all but five of the twenty-eight Indian law cases decided by the Supreme Court in the 1991-2000 Terms. See Idaho v. United States, 121 S. Ct. 2135 (2001); Arizona v. California, 120 S. Ct. 2304 (2000); Mille Lacs Band of Chippewa Indians, 526 U.S. 172; Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751 (1998); Okla. Tax Comm'n v. Sac & Fox Nation, 508 U.S. 114 (1993).
71. In the 1986-2000 Terms defendants prevailed in 111 out of 310 criminal cases decided by the Supreme Court. Compiled from data in reviews of the 1986-1999 Supreme Court Terms published in Volumes 101-114, HARV. L. REV., and for the 2000 Term from 70 U.S.L.W. 3060 (2001).
72. The data for Figure 2 were compiled by the author based on an analysis and tabulation of all Indian Supreme Court decisions for the periods indicated.
73. E.g., Atkinson Trading Co. v. Shirley, 121 S. Ct. 1825, 1835 (2001) (holding the Navajo Nation's imposition of a hotel tax upon nonmembers on non-Indian fee land within the reservation invalid).
74. E.g., Nevada v. Hicks, 121 S. Ct. 2304, 2318 (2001) (denying a tribal court jurisdiction over a suit by a tribal member alleging trespass against his property on tribal land by a state game warden); Strate v. A-1 Contractors, 520 U.S. 438, 456-59 (1997) (holding that, absent congressional authorization, tribal courts may not exercise civil jurisdiction over nonmembers driving on a state highway).
75. See infra Part VII.B, notes 340-42 and accompanying text.
76. E.g., Employment Div. Dep't of Human Res. v. Smith, 494 U.S. 872, 890 (1990) (holding that a state's prohibition of the sacramental use of peyote and denial of unemployment benefits to persons discharged for such use does not offend the Free Exercise Clause of the First Amendment).
77. E.g., Aaron S. Duck, Note, Indians: Modern Tribal Jurisdiction Over Non-Indian Parties: The Supreme Court Takes Another Bite Out of Tribal Sovereignty in Strate v. A-1 Contractors, 51 OKLA. L. REV. 727, 745-46 (1998) ("Strate cuts to the very core of tribal self-government and self-determination.").
78. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 211-12 (1978).
79. See Montana v. United States, 450 U.S. 544, 565-67 (1981); see also South Dakota v. Bourland, 508 U.S. 679, 697 (1993) (holding that Congress's authorization of a water project had "abrogated the Tribe's 'absolute and undisturbed use and occupation' [of certain lands] and thereby deprived the Tribe of the power to license non-Indian use of the lands").
80. See Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408, 421-33 (1989).
81. See Atkinson Trading Co. v. Shirley, 121 S. Ct. 1825, 1835 (2001).
82. See Strate v. A-1 Contractors, 520 U.S. 438, 456-59 (1997).
83. See Nevada v. Hicks, 121 S. Ct. 2304, 2318 (2001).
84. See, e.g., Dep't of Taxation & Finance v. Milhelm Attea & Bros., 512 U.S. 61, 78 (1994) (holding valid a New York law requiring tribal record keeping of cigarette sales to non-Indians); Hagen v. Utah, 510 U.S. 399, 421-22 (1994) (holding that the tribe's criminal jurisdiction over non-Indians had been diminished by Congress); Duro v. Reina, 495 U.S. 676, 698 (1990) (holding that Indian tribes lack criminal jurisdiction over nonmembers).
85. See, for example, Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999), discussed infra at notes 385-91 and accompanying text.
86. See, for example, Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 758 (1998), reluctantly following precedent upholding tribal sovereign immunity but inviting congressional attention by noting that "[t]here are reasons to doubt the wisdom of perpetuating the doctrine."
87. The Burger Court decided six cases involving state assertions of jurisdiction over nonmembers, Cal. State Bd. of Equalization v. Chemehuevi Indian Tribe, 474 U.S. 9 (1985); Ramah Navajo Sch. Bd. v. Bureau of Revenue, 458 U.S. 832 (1982); Cent. Mach. Co. v. Ariz. State Tax Comm'n, 448 U.S. 160 (1980); White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980); Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976), and eight cases involving tribal jurisdiction over nonmembers, Nat'l Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845 (1985); Kerr-McGee Corp. v. Navajo Tribe of Indians, 471 U.S. 195 (1985); New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982); Montana v. United States, 450 U.S. 544 (1981); Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978); United States v. Mazurie, 419 U.S. 544 (1975). The Rehnquist Court has decided four cases involving state jurisdiction over nonmembers, Ariz. Dep't of Revenue v. Blaze Constr. Co., 526 U.S. 32 (1999); Dep't of Taxation & Fin. v. Milhelm Attea & Bros., 512 U.S. 61 (1994); Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408 (1989); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989), and ten cases involving tribal jurisdiction over nonmembers, see infra note 75.
88. Nevada v. Hicks, 121 S. Ct. 2304 (2001); Atkinson Trading Co. v. Shirley, 121 S. Ct. 1825 (2001); El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (1999); Alaska v. Native Vill. of Venetie Tribal Gov't, 522 U.S. 520 (1998); South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998); Strate v. A-1 Contractors, 520 U.S. 438 (1997); South Dakota v. Bourland, 508 U.S. 679 (1993); Duro v. Reina, 495 U.S. 676 (1990); Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408 (1989); Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987).
89. 480 U.S. at 15-16. In National Farmers, 471 U.S. 845, the Court held that litigants must exhaust their tribal court remedies before challenging the tribal court's jurisdiction in a federal court action brought under federal question jurisdiction. Id. at 857. In Iowa Mutual, the Court extended its holding in National Farmers to include cases brought under diversity jurisdiction as well as federal question jurisdiction. Iowa Mutual, 480 U.S. at 15-16.
90. Brendale, 492 U.S. at 432. Brendale is usually considered a loss for the tribe, however. See John S. Harbison, The Broken Promise Land: An Essay on Native American Tribal Sovereignty over Reservation Resources, 14 STAN. ENVTL. L.J. 347, 347-50, 364-67 (1995).
91. For a list of these eight cases, see supra note 74. The cases in which the Court did not uphold tribal jurisdiction were Montana v. United States, 450 U.S. at 556-57 (denying regulatory jurisdiction over non-Indians on non-Indian land), and Oliphant, 435 U.S. at 191 (denying criminal jurisdiction over non-Indians).
92. See Figure 3, which was compiled by the author from a tabulation of all Indian jurisdiction cases in the Supreme Court's 1969-2000 Terms. Two decisions arising out of the same attempt of a tribe to invoke state court jurisdiction were excluded. Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, 467 U.S. 138 (1984); Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, 476 U.S. 877 (1986) (reversing the disposition on remand).
93. See WILKINSON, supra note 1, at 4 ("[T]he Justices [in the modern era prior to 1986] have laid down a large number of clearly stated rules that have resolved conceptual issues of great significance to Indian law and policy. . . . Further, in my view the decisions generally have been principled, even courageous.").
94. See DAVID M. O'BRIEN, STORM CENTER: THE SUPREME COURT IN AMERICAN POLITICS 30 (5th ed. 2000). One observer has written, without specific reference to Indian law, that the elevation of William Rehnquist to the post of Chief Justice "marked a turning point in the Court's decisional outlook."
95. STANLEY H. FRIEDELBAUM, THE REHNQUIST COURT: IN PURSUIT OF JUDICIAL CONSERVATIVISM xiii (1994).
96. Payne v. Tennessee, 501 U.S. 808, 828 (1991) (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940)).
97. Planned Parenthood v. Casey, 505 U.S. 833, 955 (1992) (Rehnquist, C.J., concurring in part and dissenting in part). One commentator says that Casey, where the majority did follow precedent and left standing the abortion rights decision in Roe v. Wade, actually revealed the shallowness of the Court's commitment to stare decisis. Carolyn D. Richmond, The Rehnquist Court: What Is in Store for Constitutional Law Precedent?, 39 N.Y.L. SCH. L. REV. 511, 512 (1994). In Casey, the four-person minority led by the Chief Justice zealously urged overruling Roe v. Wade, while the five-person majority seemed concerned primarily with damage to the Court's own credibility if it were to back-track on such a highly visible and frequently revisited issue. See id. at 541-42.
98. 501 U.S. at 830, overruling Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989).
99. Id. at 828; see also Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 VAND. L. REV. 647, 734-35 (1999) (arguing that the idea that stare decisis is strongest in cases involving commercial reliance has deep historical roots traceable to the Founders, while the idea that constitutional precedent is more susceptible to reversal is relatively new).
100. Payne, 501 U.S. at 844-45 (Marshall, J., dissenting) Renouncing this Court's historical commitment to a conception of "the judiciary as a source of impersonal and reasoned judgments," the majority declares itself free to discard any principle of constitutional liberty which was recognized or reaffirmed over the dissenting votes of four Justices and with which five or more Justices now disagree. The implications of this radical new exception to the doctrine of stare decisis are staggering. The majority today sends a clear signal that scores of established constitutional liberties are now ripe for reconsideration, thereby inviting the very type of open defiance of our precedents that the majority rewards in this case. Id. (quoting Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403 (1970)).
101. Donald H. Zeigler, The New Activist Court, 45 AM. U. L. REV. 1367, 1400 (1996);
102. see also HAROLD J. SPAETH & JEFFREY A. SEGAL, MAJORITY RULE OR MINORITY WILL: ADHERENCE TO PRECEDENT ON THE U.S. SUPREME COURT 273 ("The Rehnquist Court has been not only conservative, but activist . . . ."). Spaeth and Segal apply a precedential versus preferential model to test the Court's loyalty to precedent. See id. at 7-8. They look at the behavior of Justices in landmark cases to see if, after dissenting in the case, they adhere to the rejected position in the future. See id. at 5. The Rehnquist Court ranks in the top three "preferential" courts ever in terms of the Justices' refusal to depart from their preferences to accept precedent. See id. at 278. Empirical studies show that the Rehnquist Court has opted for judicial preferences over precedent in 97.8% of the progeny of landmark decisions that have come before it, more than the Burger or Warren Courts that preceded it. Id. at 277.
103. FRIEDELBAUM, supra note 81, at xvi.
104. Richmond, supra note 83, at 511-12. Richmond concludes that there is virtually no predictability to be found and that the Rehnquist Court is on a "search and destroy mission." Id. at 511.
105. See Frank H. Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802, 811-31 (1982). Easterbrook levels similar criticisms at the Burger Court: "[W]hile admitting that it is bound by the written documents, the [Burger] Court continues to hand down inconsistent decisions, to dishonor precedents, and to change the weight attached to particular constitutional and statutory provisions or the values derived from them." Id. at 812.
106. See Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 CASE W. RES. L. REV. 581, 586-90 (1989-90). For instance, although Justice Scalia has advocated that judges adhere to a set of neutral principles and deference to legislative will, he also has allowed that courts need not be consistent if it would lead to a result that would be "simply wrong." Id. at 589.
107. See WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 2 (1994) (asserting that "the Rehnquist Court may be the most activist Court in our history on issues of statutory interpretation");
108. John C. Jeffries, Jr. & Daryl J. Levinson, The Non-Retrogression Principle in Constitutional Law, 86 CAL. L. REV. 1211, 1248 (1998) (stating that from 1995 to 1997, the Supreme Court issued twelve opinions invalidating acts of Congress, and to find a comparable period of judicial activity, one must go back to the period from 1934 to 1936); Zeigler, supra note 87, at 1369 (contending that the Rehnquist Court has engaged in broad-based activism as indicated by its articulation of new constitutional rights, overturning of statutes, alteration of doctrines defining access to judicial review, and rejection or disregard of precedent);
109. A Court Running in the Wrong Direction, N.Y. TIMES, July 6, 1995, at A20 (editorializing that in the 1994 Term the Court was "toppling doctrines and precedents that had held for decades" while displaying "a disrespect [for Congress] bordering on contempt").
110. Jeffries & Levinson, supra note 92, at 1247.
111. 514 U.S. 549, 567 (1995).
112. Zeigler, supra note 87, at 1400.
113. 487 U.S. 500 (1988).
114. Zeigler, supra note 87, at 1383.
115. 505 U.S. 1003 (1992).
116. Zeigler, supra note 87, at 1375-80.
117. Frank R. Parker, The Damaging Consequences of the Rehnquist Court's Commitment To Color Blindness Versus Racial Justice, 45 AM. U. L. REV. 763, 764 (1996).
118. Jeffries & Levinson, supra note 92, at 1211-12.
119. Erwin Chemerinsky, The New Judicial Activism, CAL. LAW., Feb. 2000, at 25-26.
120. See supra notes 82-83, 91 and accompanying text.
121. See supra notes 30-33 and accompanying text.
122. Frickey, supra note 36, at 58-81 (attempting to reconceptualize recent decisions using several hypothetical approaches in a search for doctrinal coherence). Professor Frickey undertakes a far more penetrating analysis than the Court itself has done in seeking to justify its decisions. He concludes that none of the approaches satisfactorily explains the Court's results. Id. at 7-8. Moreover, he concludes that all the approaches "are rooted . . . in a normatively unattractive judicial colonial impulse beneath the dignity of the best qualities of federal Indian law." Id. at 7.
123. Id. at 57.
124. Id.
125. See Figure 4. Figure 4 was compiled by the author from his own tabulation of the Indian cases and from data on Supreme Court decisions, including LEE EPSTEIN ET AL., THE SUPREME COURT COMPENDIUM: DATA, DECISIONS & DEVELOPMENTS (2d ed. 1996),
126. and reviews of Supreme Court Terms published in volumes 109-114, HARV. L. REV. (1995-2000), and for the 2000 Term from U.S.L.W. 3060 (2001). In the "modern era," the Court was "more active in Indian law than in fields such as securities, bankruptcy, pollution control, and international law." WILKINSON, supra note 1, at 2. Wilkinson reports that thirty-five Indian law cases were decided by the Supreme Court during the 1970s. Id. My tabulation shows that in the 1980s the Court rendered forty such decisions and in the 1990s decided twenty-six Indian law cases.
127. From 1958 to 2000, about 2.4% (121 of 4853 cases) of the Court's total decisions on the merits were Indian cases. In the Rehnquist Court (1986-2000 Terms), about 2.7% (41 of 1510 cases) of the decisions have been in Indian cases. The average number of Indian cases decided has dropped in recent years, but the percentage of Indian cases has remained the same because the overall number of cases decided by the Court has fallen drastically. Caseload reduction has been one of the hallmarks of the Rehnquist Court. O'BRIEN, supra note 81, at 234-35. After hovering at about 150 cases per year from 1971 until the late 1980s, the Court's workload was nearly half that number by 1995. Arthur D. Hellman, The Shrunken Docket of the Rehnquist Court, 1996 SUP. CT. REV. 403, 403. Meanwhile, the workload of the courts of appeals increased 150%, and the number of petitions for review in the Supreme Court nearly doubled. Id. at 403-04;
128. see also Michael L. Closen, The Decade of Supreme Court Avoidance of AIDS: Denial of Certiorari in HIV-AIDS Cases and Its Adverse Effects on Human Rights, 61 ALB. L. REV. 897, 924-25 (1998) (discussing the diminishing number of cases taken on by the Rehnquist Court);
129. David M. O'Brien, Join-3 Votes, the Rule of Four, the Cert. Pool, and the Supreme Court's Shrinking Plenary Docket, 13 J.L. & POL. 779, 808 (1997) (arguing that the contraction of the docket during the Rehnquist years reflects changes in the composition of the bench).
130. BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT 359, 412 (1979). "Brennan felt that he got terrible assignments from . . . Chief [Justice Burger]. One decision he was assigned to write (Antoine v. Washington) addressed the question of whether Indians in Washington state could hunt and fish in the off season. . . . Brennan seethed at having to write this 'chickenshit case.'" Id. at 359. "[I]n January, when the next assignment sheet came around, Rehnquist got only one case from Burger - an insignificant Indian tax dispute in Montana (Moe v. Tribes of the Flathead Reservation) . . . . [H]e suspected that the assignment was Burger's way of telling him what he really thought . . . ." Id. at 412;
131. see also Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 HARV. L. REV. 381, 382-83 (1993) ("For most of those who follow the Court, these cases were almost certainly viewed as 'crud,' even if 'kind of fascinating,' 'peewee' cases . . . .") (footnotes and citations omitted).
132. See ROBERT L. STERN ET AL., SUPREME COURT PRACTICE 196-220, 374-75 (6th ed. 1986). Rule 19, Rules of the U.S. Supreme Court, mentions the latter two reasons.
133. See DORIS MARIE PROVINE, CASE SELECTION IN THE UNITED STATES SUPREME COURT 37-45 (1980). Some observers posit that the Court's vagueness about its criteria for case selection is intentional and contributes to its ability to exercise wide discretion. See id. Others have examined the Court's strategic or agenda-building behavior in case selection.
134. See, e.g., RICHARD L. PACELLE, JR., THE TRANSFORMATION OF THE SUPREME COURT'S AGENDA 8-12 (1991).
135. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16-17 (1831) (holding that Indian tribes are domestic dependent nations, not foreign nations).
136. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (holding that state laws do not govern non-Indians within Indian reservations because of federal preemption and tribal sovereignty).
137. One example of an Indian case that attracted considerable public attention and controversy was Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998). In Alaska, Natives constitute 16.8% of the population. DEMOGRAPHICS UNIT, ALASKA DEPARTMENT OF LABOR & WORKFORCE DEVELOPMENT, ALASKA POPULATION OVERVIEW 20 tbl.1.4 (2000). However, in rural areas, 52% of the population is Native. E-mail communication with Laura Walters, Research Analyst, State of Alaska, Department of Community & Economic Development (Aug. 23, 2000) (on file with the author). Moreover, 82% of rural communities have greater than 70% Native population. Id. In Venetie, the tribal government tried to collect taxes from a private contractor for conducting business activities on the tribe's land. See 522 U.S. at 525. The state successfully fought these Native attempts to assert Indian country jurisdiction. See id. at 523. The case was not only highly visible and controversial in Alaska, but attracted an amicus curiae brief signed by twenty-five states arguing essentially a states' rights theme. See Brief of Amici Curiae States of California et al., Alaska v. Native Vill. of Venetie Tribal Gov't, 522 U.S. 520 (1998) (No. 96-1577). A similar brief was signed by the Council of State Governments and the Alaska State Legislature. Brief of Amici Curiae Legislature of the State of Alaska et al., Alaska v. Native Vill. of Venetie Tribal Gov't, 522 U.S. 520 (1998) (No. 96-1577). After their attempts to achieve recognition for village self-governance failed, Native interests sued the state claiming inadequate law enforcement. Alaska Inter-Tribal Council v. State, No. 3DI-99-113-CI (Alaska Super. Ct. filed Oct. 25, 1999). Similarly, a battle over whether to invalidate attempts of the State of Hawaii to administer state and federal benefits for Native Hawaiians through an independent state board under trustees selected in a Natives-only election attracted attention from opponents of affirmative action and other race-specific programs. Three briefs were filed in opposition to Hawaii's plan. Brief of Amicus Curiae of Pacific Legal Foundation, Brief of Amici Curiae Campaign for a Color Blind America et al., Brief of Amici Curiae Center for Equal Opportunity et al., Rice v. Cayetano, 528 U.S. 495 (2000) (No. 98-818). The Court struck down the voting scheme as a violation of the Fifteenth Amendment. Rice v. Cayetano, 528 U.S. 495, 499 (2000).
138. Louis F. Claiborne, The Trend of Supreme Court Decisions in Indian Cases, 22 AM. INDIAN L. REV. 585, 587 (1997).
139. Of the Indian cases accepted by the Rehnquist Court, then reversed or vacated, the author's survey shows that tribal interests have won only 20% of the time. By contrast, the Burger Court reversed or vacated judgments in favor of tribes about 50% of the time. The author calculated these figures based on data compiled from his analysis of the Indian law cases for the periods indicated.
140. Conflicts between circuits include Negonsott v. Samuels, 507 U.S. 99, 102 (1993), and Duro v. Reina, 495 U.S. 676, 684 (1990), effectively overruled by 25 U.S.C. §1301(2) (3) & (4) (1990); conflicts between a court of appeals and a state supreme court include South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 342 (1998), Hagen v. Utah, 510 U.S. 399, 409 (1994), and Oklahoma Tax Commission v. Sac and Fox Nation, 508 U.S. 114, 122 (1993); conflicts between state courts include C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe, 121 S. Ct. 1589, 1594 (2001), and Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 41 (1989). In fact, some cases accepted appear to have no potential whatsoever for conflict among jurisdictions. See, e.g., Rice v. Cayetano, 528 U.S. 495, 498 (2000) (presenting an issue unique to Hawaii and its state constitution); Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 188 (1999) (construing a treaty on which the only affected circuits were in agreement). For more information on Minnesota v. Mille Lacs Band of Chippewa Indians, see infra notes 386-91 and accompanying text.
141. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES 20 tbl.11 (120th ed. 2000).
142. COHEN, supra note 1, at vii ("Law dominates Indian life in a way not duplicated in other segments of American society.").
143. Getches, supra note 2, at 1574.
144. For cases in which initial results favoring tribal interests were reversed by the Court, see Nevada v. Hicks, 121 S. Ct. 2304, 2318 (2001); Atkinson Trading Co. v. Shirley, 121 S. Ct. 1825, 1835 (2001); C & L Enterprises v. Citizen Band Potawatomi Indian Tribe, 121 S. Ct. 1589, 1597 (2001); Department of the Interior v. Klamath Water Users Protective Ass'n, 121 S. Ct. 1060, 1070 (2001); Rice v. Cayetano, 528 U.S. 495, 524 (2000); Amoco Production Co. v. Southern Ute Indian Tribe, 526 U.S. 865, 880 (1999); El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 488 (1999); Arizona Department of Revenue v. Blaze Construction Co., 526 U.S. 32, 39 (1999); Montana v. Crow Tribe of Indians, 523 U.S. 696, 719 (1998); Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 534 (1998); South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 358 (1998); Strate v. A-1 Contractors, 520 U.S. 438, 460 (1997); South Dakota v. Bourland, 508 U.S. 679, 697-98 (1993); Blatchford v. Native Village of Noatak, 501 U.S. 775, 788 (1991); Duro v. Reina, 495 U.S. 676, 698 (1990); and Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408, 432-33 (1989).
145. See, e.g., 121 S. Ct. at 2323 ("Tribal courts also differ from other American courts . . . in their structure, in the substantive law they apply, and in the independence of their judges."); Rice, 528 U.S. at 523 ("All citizens, regardless of race, have an interest in selecting officials who make policies on their behalf, even if those policies will affect some groups more than others."); Strate, 520 U.S. at 459 ("[R]equiring [non-Indians] to defend against this commonplace state highway accident claim in an unfamiliar court is not crucial to 'the political integrity, the economic security, or the health or welfare of the [Three Affiliated Tribes].'") (quoting Montana v. United States, 450 U.S. 544, 566 (1981) (footnote omitted)); Duro, 495 U.S. at 693 ("While modern tribal courts include many familiar features of the judicial process, they are influenced by the unique customs, languages, and usages of the tribes they serve."); Brendale, 492 U.S. at 437 (opinion of Stevens, J., joined by O'Connor, J., announcing the judgment of the Court) ("[I]t is . . . improbable that Congress envisioned that the Tribe would retain its interest in regulating the use of vast ranges of land sold in fee to nonmembers who lack any voice in setting tribal policy."). For a more detailed discussion of Strate and Hicks, see infra notes 344-48 and accompanying text.
146. Frickey, supra note 36, at 6-7.
147. Because of the close and complicated nature of most cases before the Court, some have argued that "discussion [of interpretive methods] turns out to be sterile because these methods rarely yield . . . answers in the type of case that reaches the high court." STEPHEN E. GOTTLIEB, MORALITY IMPOSED: THE REHNQUIST COURT AND LIBERTY IN AMERICA x (2000).
148. Brevity of description risks misrepresenting, or under-representing, the interpretive theories, and generalizations blur the variations within each. For fuller explications of each see the leading texts: WILLIAM N. ESKRIDGE, JR. & PHILIP P. FRICKEY, CASES AND MATERIALS ON LEGISLATION (1995),
149. OTTO J. HETZEL ET AL., LEGISLATIVE LAW AND PROCESS (2d ed. 1993)
150. WILLIAM D. POPKIN, MATERIALS ON LEGISLATION (2d ed. 1997).
151. See generally Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533 (1983). Judge Posner would broaden the judicial inquiry by commissioning courts to engage in "imaginative reconstruction" of how the drafters would have applied the language if they had thought of the situation at the time.
152. See RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 286-87 (1985).
153. See, e.g., William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479 (1987). "[O]riginalist" methods of statutory interpretation consider the drafter's intent or the original purpose of the statute. Id. at 1479-80.
154. HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS 1374-80 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994); see also POPKIN, supra note 125, at 106-08.
155. POPKIN, supra note 125, at 159-69.
156. See William N. Eskridge, Jr. & Philip P. Frickey, Foreword, Law as Equilibrium, 108 HARV. L. REV. 26, 62-65 (1994);
157. William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 323-24 (1990) [hereinafter Eskridge & Frickey, Statutory Interpretation].
158. See Eskridge, supra note 127, at 1496-97.
159. See, e.g., Thomas W. Merrill, Chief Justice Rehnquist, Pluralist Theory, and the Interpretation of Statutes, 25 RUTGERS L.J. 621, 624-25 (1994) (categorizing Chief Justice Rehnquist as an originalist and Justice Scalia as a textualist);
160. Richard B. Saphire, Constitutional Predispositions, 23 U. DAYTON L. REV. 277, 281-85 (1998) (marking Justice Scalia as a "textualist" with respect to statutory interpretation);
161. Nicholas S. Zeppos, Chief Justice Rehnquist, The Two Faces of Ultra-Pluralism, and the Originalist Fallacy, 25 RUTGERS L.J. 679, 688-97 (1994) (comparing Justice Rehnquist's originalism with Justice Scalia's textualism).
162. See supra Part I.
163. See Getches, supra note 2; supra notes 31-35 and accompanying text.
164. See supra notes 7-19 and accompanying text.
165. See, e.g., South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 333 (1998) (holding that Congress intended to diminish the Yankton Sioux Reservation in the 1894 Surplus Land Act and therefore the tribe lacked jurisdiction over non-Indian land); Hagen v. Utah, 510 U.S. 399, 421-22 (1994) (holding that Congress had diminished the reservation and therefore Utah courts had jurisdiction over an Indian defendant); South Dakota v. Bourland, 508 U.S. 679, 687 (1993) (holding that federal statutes abrogated the treaty right of the tribe to regulate hunting and fishing by non-Indians on reservation lands acquired for a reservoir project). The diminishment cases are discussed in Robert Laurence, The Dominant Society's Judicial Reluctance to Allow Tribal Civil Law to Apply to Non-Indians: Reservation Diminishment, Modern Demography and The Indian Civil Rights Act, 30 U. RICH. L. REV. 781, 786-803 (1996)
166. Robert Laurence, The Unseemly Nature of Reservation Diminishment by Judicial, as Opposed to Legislative, Fiat and the Ironic Role of the Indian Civil Rights Act in Limiting Both, 71 N.D. L. REV. 393, 396-408 (1995).
167. See Hagan, 510 U.S. at 412.
168. See Yankton Sioux Tribe, 522 U.S. at 352. Commissioner Cole, the government negotiator, told the tribe that it "must break down the barriers and invite the white man with all the elements of civilization," which the Court viewed as evidence of diminishment. Id.; see Hagen, 510 U.S. at 417 (citing Indian Inspector James McLaughlin's "picturesque" speech to the Indians that the 1904 Act "will pull up the nails" of the reservation).
169. See DeCoteau v. Dist. County Court, 420 U.S. 425, 433-34 (1975) (quoting an "Indian spokesman" in The Minneapolis Tribune agreeing to government plans to open the reservation). This approach actually began before the Rehnquist Court, although it was tempered by the application of canons of construction wherever the court found ambiguity. See Solem v. Bartlett, 465 U.S. 463, 470-71 (1984); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 586-87 (1977); DeCoteau, 420 U.S. at 446-47.
170. See Yankton Sioux Tribe, 522 U.S. at 357 (citing South Dakota's assumption of jurisdiction over the territory almost immediately after the 1894 Act, in addition to evidence that the tribe had only recently tried to exercise control over nontrust lands).
171. See id. at 356-57 (finding that despite recent increases in the Indian population and trust land, the area is predominantly non-Indian, "with only a few surviving pockets of Indian allotments," signifying a diminished reservation); Hagen, 510 U.S. at 421 (stating that the current population is almost 85% non-Indian and tribal headquarters are located on trust land, which with the jurisdictional history was a "practical acknowledgment" that the reservation was diminished). The diminishment cases are perceptively discussed in Frickey, supra note 36, at 17-27.
172. See WILKINSON, supra note 1, at 46-52; Judith V. Royster, Of Surplus Lands and Landfills: The Case of the Yankton Sioux, 43 S.D. L. REV. 283, 307 (1998).
173. E.g., Yankton Sioux Tribe, 522 U.S. at 349 ("The principle according to which ambiguities are resolved to the benefit of Indian tribes is not, however, 'a license to disregard clear expressions of tribal and Congressional intent.'") (quoting DeCoteau, 420 U.S. at 447). In Hagen, the Court, after reciting the canons, refused to apply them because it asserted that the words "restored to the public domain," which had been variously interpreted by lower courts, were unambiguous. 510 U.S. at 414-15. Justices Blackmun and Souter wrote in the dissent that "[a]lthough the majority purports to apply these canons in principle . . . it ignores them in practice, resolving every ambiguity . . . in favor of the State." Id. at 424; see also Getches, supra note 2, at 1620-22; Royster, supra note 142, at 308 ("The Court will recite the canons, state that they apply, and then interpret the treaty or statute at issue to find that no ambiguity exists.").
174. See Eskridge & Frickey, Statutory Interpretation, supra note 130, at 345-62 (describing "practical reasoning" as an approach that eschews objectivist theories in favor of a mixture of inductive and deductive reasoning, seeking contextual justification for the best legal answer among the potential alternatives).
175. Id. at 345.
176. See Frickey, supra note 36, at 58-64 (recognizing that the Court actually does follow practical reasoning but does it in a careless or thoughtless and non-dialogic way); Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 CAL. L. REV. 1137, 1230 n.435 (1990) [hereinafter Frickey, Congressional Intent] (noting the virtual impossibility of trying to discuss the actual nature of tribes and Indianness in the framework of Anglo-American legal constructs).
177. But see Montana v. United States, 450 U.S. 544, 566-67 (1981), Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 158-59 (1980), and Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212 (1978), which were "[p]ivotal [d]ecisions" during the modern era for the Court's later "[r]etreat from [f]oundation [p]rinciples." Getches, supra note 2, at 1595.
178. "When the Court takes sides in the culture wars, it tends to . . . reflect[] the views and values of the lawyer class from which the Court's Members are drawn." Romer v. Evans, 517 U.S. 620, 652 (1996) (Scalia, J., dissenting); see also THE SUPREME COURT A TO Z 32-36 (Kenneth Jost ed., 2d ed. 1998) (discussing the Court's composition).
179. Frickey, Congressional Intent, supra note 146, at 1142. Frickey views Marshall's role in the Cherokee cases as "critically balancing the interests of the colonizing government and the victims of colonization." Id. at 1228. He argues that Marshall reached his result by mediating the tensions created by a thorny local political situation, troubling normative concerns, and incomplete positive law. Id. at 1228-30. Another perspective is that the decision was just a strategic means to accomplish Marshall's federalist ends. See Getches, supra note 2, at 1582; Richard A. Monette, A New Federalism for Indian Tribes: The Relationship Between the United States and Tribes in Light of Our Federalism and Republican Democracy, 25 U. TOL. L. REV. 617, 638 (1994). I believe that the best reading of the case, however, is that Marshall was simply doing what he said he was doing: recognizing the preemptive force of the Cherokee treaties and the Non-intercourse Act, and applying the Commerce Clause as the Framers intended it to be applied. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832) ("If the review which has been taken be correct, and we think it is, the acts of Georgia are repugnant to the constitution, laws, and treaties of the United States.").
180. Frickey, Congressional Intent, supra note 146, at 1239.
181. Frickey, supra note 36, at 63. He asserts that the flaw in the Court's application of pragmatism has been that it has uncritically applied values, failing to test whether they "can withstand normative reassessment." Id. at 64; see also Alfred L. Brophy, Foreword, New Directions in Native American Law, 23 OKLA. CITY U. L. REV. 1, 2 n.8 (1998) (claiming that departures from foundational principles "may represent the emergence of 'practical reasoning,'" citing as examples the Court's decisions in Idaho v. Coeur d'Alene Tribe, 521 U.S. 261 (1997) and Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)).
182. Memorandum from Justice Antonin Scalia to Justice William J. Brennan, Jr. (Apr. 4, 1990) (on file with the author). For a discussion of the memorandum, see Frickey, supra note 36, at 62-63, and Getches, supra note 2, at 1575-76.
183. It seems obvious that some interpretive methods are more appropriate in some areas than in others. See HETZEL ET AL., supra note 125, at 388 ("No single technique of statutory interpretation will be adequate to resolve all types of interpretation problems."); POPKIN, supra note 125, at 177 ("[D]ifferent statutes have different value implications and institutional settings, which call for different interpretive approaches. The major challenge for modern statutory interpretation is to work out the best approach for interpreting statutes in different areas of the law. . . ."). Professor Robert Rasmussen questions the preoccupation of scholarly inquiry with assessing interpretive processes rather than focusing on whether the results produced by different interpretive methods lead to better overall consequences for the particular field of law. He makes the case that, in the field of bankruptcy law, abandoning the Court's essentially textual approach in favor of dynamic interpretation would make little difference. Robert K. Rasmussen, A Study of the Costs and Benefits of Textualism: The Supreme Court's Bankruptcy Cases, 71 WASH. U. L.Q. 535, 597 (1993).
184. See Baker v. Carr, 369 U.S. 186, 211-12 (1962) (finding that political question analysis must be on a case-by-case basis where each question presented must be analyzed "in terms of . . . its management by the political branches, of its susceptibility to judicial handling . . . and of the possible consequences of judicial action").
185. Some, but not all, controversies involving foreign relations lie beyond judicial competence. Compare Haig v. Agee, 453 U.S. 280, 291-92 (1981) (stating that the field of international relations, "'with its important, complicated, delicate and manifold problems,'" is "rarely proper . . . for judicial intervention" and thus these matters are "'exclusively entrusted to the political branches'") (quoting United States v. Curtiss-Wright Exp. Corp. 299 U.S. 304, 319 (1936), and Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952)), with Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428-37 (1964) (claiming that the application of the act-of-state doctrine, preventing U.S. courts from judging public acts of another sovereign, is based on factors like the sensitivity of political judgments touching on social and economic ideology, the risk of piecemeal decisions, and the possibility that political branches consciously chose not to express an official position).
186. The Constitution delegates the role of negotiating treaties to the executive but requires senatorial ratification. See U.S. CONST. art. II, § 2. The President also represents the United States in foreign relations by appointing, id., and receiving ambassadors, id. § 3.
187. See GETCHES ET AL., supra note 21, at 1-6; see also COHEN, supra note 1, at 207-28. If national Indian policy and the relationship with tribes are to be "liberated" from congressional oversight and allowed to evolve according to a case-by-case interpretation by the courts, the political and legal traditions of the nation would seem to require some indication from Congress that it intended to relinquish its historic control.
188. E.g., United States v. Sandoval, 231 U.S. 28, 47 (1913) (asserting that "'it is the rule of this court to follow [the action of] the executive and other political departments of the [g]overnment, whose more special duty it is to determine such affairs'" as the status of Pueblo peoples) (quoting United States v. Holliday, 70 U.S. (3 Wall.) 407, 419 (1865)).
189. I confess skepticism about most judges' capacity to bring to their job the level of objectivity, humility, and detachment needed for pragmatism to succeed. It is one thing to ask courts consciously to detach themselves from cases, to presume innocence, or to ignore illegally obtained evidence. Practical reasoning demands even more: that judges elevate their objectivity to be able to overcome their unconscious motives and biases based in experiences and mores. Judges have to remain detached while they candidly make multiple, subtle value judgements that go into weighing all the factors that may bear on potentially applicable law to come up with the "best" legal meaning under the circumstances of the case. The kind of perfection in analysis and objectivity that this demands is rare, even among judges.
190. Eskridge & Frickey, Statutory Interpretation, supra note 130, at 322 n.3.
191. See infra Conclusion.
192. See, e.g., Erwin Chemerinsky, Is the Rehnquist Court Really That Conservative?: An Analysis of the 1991-92 Term, 26 CREIGHTON L. REV. 987, 987 (1993) (finding that during the 1991-92 Term, the Court "consistently accept[ed] and endors[ed] conservative views");
193. M. David Gelfand & Keith Werhan, Federalism and Separation of Powers on a "Conservative" Court: Currents and Cross-Currents from Justices O'Connor and Scalia, 64 TUL. L. REV. 1443, 1443-45 (1990) (exploring the differences and similarities "within the emerging 'conservative bloc' on the current Supreme Court," using Justices Sandra Day O'Connor and Antonin Scalia as test subjects);
194. Lisa R. Graves, Looking Back, Looking Ahead: Justice O'Connor, Ideology, and the Advice and Consent Process, 3 CORNELL J.L. & PUB. POL'Y 121, 171-72 (1993) (arguing in favor of stronger ideological review of Supreme Court nominees);
195. Staci Rosche, How Conservative is the Rehnquist Court? Three Issues, One Answer, 65 FORDHAM L. REV. 2685, 2685-86 (1997) (comparing the Court's decisions during the Burger Court, 1981-85, with those of the Rehnquist Court, 1991-95);
196. Kathleen M. Sullivan, The Jurisprudence of the Rehnquist Court, 22 NOVA L. REV. 743, 744 (1998) (examining "institutional, jurisprudential, and ideological factors" to explain "the surprising moderation of Justices predicted to be conservative"). Some studies find a high degree of correlation among the votes of Justices Rehnquist, Scalia, Thomas, Kennedy, and O'Connor, who typically vote to support a suite of outcomes favored by today's so-called political conservative.
197. See Robert H. Smith, Uncoupling The "Centrist Bloc" - An Empirical Analysis of the Thesis of a Dominant, Moderate Bloc on the United States Supreme Court, 62 TENN. L. REV. 1, 4-6, 31-33, 38 (1994). In the case of the first three, the support is almost unflagging, while the latter two have become less predictable in recent years, sparking debate over whether a moderate bloc holds the balance of power. Id. at 1; see also FRIEDELBAUM, supra note 81, at 145-46 (concluding that a centrist coalition of Justices Kennedy, O'Connor, and Souter is capable of invoking moderation to prevent "superconservatism" on the Court);
198. JAMES F. SIMON, THE CENTER HOLDS 293 (1995) (concluding that the prevailing ethos of the Court is moderation, and that some Justices, notably Kennedy, O'Connor, and Souter, were responsible for de-railing a conservative revolution);
199. cf. Paul H. Edelman & Jim Chen, The Most Dangerous Justice: The Supreme Court at the Bar of Mathematics, 70 S. CAL. L. REV. 63, 90-95 (1996) (arguing that the Justices with the greatest influence on outcomes were Kennedy during the 1994 Term and Ginsburg during the 1995 Term).
200. The labels, of course, have virtually nothing to do with dictionary definitions, issues of restraint versus activism, or the meanings of classical terms used in political philosophy. See Stephen E. Gottlieb, The Philosophical Gulf on the Rehnquist Court, 29 RUTGERS L.J. 1, 2-6 (1997) (discussing the different philosophical and political meanings of the terms "liberal" and "conservative" when attributed to the Supreme Court).
201. See, e.g., SIMON, supra note 162, at 293; Smith, supra note 162, at 4-7. Friedelbaum states that "it should not be assumed that anything akin to a solid voting bloc categorically describes this or any other court." FRIEDELBAUM, supra note 81, at xiv.
202. Chemerinsky, supra note 162, at 988 (refuting a "popular misconception that the 1991-92 Term demonstrate[d] that the Rehnquist Court [was] not . . . conservative").
203. 505 U.S. 833 (1992).
204. 410 U.S. 113 (1973).
205. Chemerinsky, supra note 162, at 1000-03.
206. GOTTLIEB, supra note 124.
207. Id. at 193.
208. Id. at 50.
209. Id. at 147.
210. Id. at 197, 194.
211. Id. at 161-63; see also id. at 180 (finding Souter essentially a "conservative," based on his cautious approach, but contrasting him with the "more radical conservatives").
212. Id. at 194.
213. See Sullivan, supra note 162, at 758 (noting the complexity inherent in defining constitutional conservatism and discussing the institutional, jurisprudential, and ideological factors that explain the surprising moderation of Justices predicted to be conservative).
214. See Smith, supra note 162, at 69 ("[C]entrists were not as influential (frequency of voting with the majority), not as moderate . . . (frequency of voting for or against ideological positions), and not as cohesive (frequency of agreeing in outcomes and joining in opinions with each other) as they have been characterized.").
215. See Lynn A. Baker, Interdisciplinary Due Diligence: The Case for Common Sense in the Search for the Swing Justice, 70 S. CAL. L. REV. 187, 207-08 (1996); Edelman & Chen, supra note 162, at 96-98.
216. FRIEDELBAUM, supra note 81, at 145.
217. E.g., MARTIN SHAPIRO, The Supreme Court: from Warren to Burger, in THE NEW AMERICAN POLITICAL SYSTEM, 179 (Anthony King ed., 1978).
218. See generally G. EDWARD WHITE, THE AMERICAN JUDICIAL TRADITION (1976).
219. Thomas W. Merrill, Chief Justice Rehnquist, Pluralist Theory, and the Interpretation of Statutes, 25 RUTGERS L.J. 621, 621 (1994) ("Chief Justice Rehnquist is far more internally consistent than most Supreme Court Justices, and . . . the best predictor of his behavior is not the platforms of the Republican Party but an implicit theory of the political system and of the proper role of the judiciary within it.").
220. Id. at 638-41.
221. Id. The predictive value of these generalizations is doubtful. Professor Nicholas Zeppos questions whether Merrill's comparison of Rehnquist and Scalia, resulting in a bright contrast between their approaches to statutory interpretation, really matters. Zeppos, supra note 132, at 689. He argues that because the two Justices agree in 92% of all statutory cases, the methodological cleavages are either inconsequential or not credible. Id.
222. GOTTLIEB, supra note 124, at 77 (stating that if Rehnquist really believes "that deference to local homogeneous groups strengthens the moral fabric," he "ought to support the authority of . . . Indian tribes"). Although most of his opinions and votes belie it, Rehnquist has indicated a basic understanding of tribal sovereignty. In his first Indian opinion, he wrote that tribes possess "attributes of sovereignty over both their members and their territory." United States v. Mazurie, 419 U.S. 544, 557 (1975). The foundational cases, Rehnquist wrote, "establish . . . that Indian tribes within 'Indian country' are a good deal more than 'private, voluntary organizations.'" Id.
223. Merrill, supra note 181, at 645-46.
224. Rehnquist has rarely applied the canons of construction in Indian law. E.g., Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 218 (1999) (Rehnquist, C.J., dissenting) (concluding that the majority's reliance on the canon of resolving ambiguities in favor of the Indians is "strained, indeed"); Negonsott v. Samuels, 507 U.S. 99, 110 (1993) (finding the petitioner's reliance on general canons "of Indian law unavailing"). Moreover, he favors an approach that produces a result that comports with expectations of legislatures and affected parties down to the present day. E.g., Mille Lacs Band of Chippewa Indians, 526 U.S. at 218 (Rehnquist, C.J., dissenting) ("[T]he settled expectation of the United States was that the 1850 Executive Order had terminated the hunting rights of the Chippewa."); Negonsott, 507 U.S. at 107 ("Thus, the Kansas Act was designed to 'merely confirm a relationship which the State has willingly assumed, which the Indians have willingly accepted, and which has produced successful results, over a considerable period of years . . . .'") (quoting H. R. REP. No. 1999, at 5 (1940); S. REP. NO. 1523, at 5 (1940)); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 604-05 (1977) ("The longstanding assumption of jurisdiction by the State over an area that is over 90% non-Indian . . . has created justifiable expectations which should not be upset by so strained a reading of the Acts of Congress . . . .").
225. See, e.g., Joyce A. Baugh & Christopher E. Smith, Doubting Thomas: Confirmation Veracity Meets Performance Reality, 19 SEATTLE U. L. REV. 455, 495 (1996) ("Thomas's views in Supreme Court cases have been consistent with his controversial pre-Court speeches and writings rather than with the disclaimers and explanations he presented during his confirmation hearings."); Gelfand & Werhan, supra note 162, at 1443 ("[The] differences in the approaches to federalism and separation [of powers] taken by Justices O'Connor and Scalia are explained, in part, by differences in their backgrounds and methods of constitutional interpretation.");
226. Lisa R. Graves, Looking Back, Looking Ahead: Justice O'Connor, Ideology, and the Advice and Consent Process, 3 CORNELL J.L. & PUB. POL'Y 121, 124 (1993) ("Justice O'Connor exemplifies how all Justices come to the Court with some form of judicial philosophy and political ideology that significantly affects their approaches to cases."); Zeppos, supra note 132, at 689 ("Chief Justice Rehnquist rarely uses originalist methodology to reach a surprisingly liberal result. Justice Scalia, however, will occasionally live with the liberal consequences of his textualism.").
227. GOTTLIEB, supra note 124.
228. See supra note 184 and accompanying text.
229. GOTTLIEB, supra note 124, at 115.
230. See id. at 171.
231. The Rehnquist Court has decided only four Indian cases by a 5-4 vote. Idaho v. United States, 121 S. Ct. 2135 (2001); Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999); Idaho v. Coeur d'Alene Tribe, 521 U.S. 261 (1997); Seminole Tribe v. Florida, 517 U.S. 44 (1996). From 1958-1986 there were only two 5-4 decisions. Cal. State Bd. of Equalization v. Chemehuevi Indian Tribe, 474 U.S. 9 (1985); Cent. Mach. Co. v. Ariz. State Tax Comm'n, 448 U.S. 160 (1980); cf. Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237 (1985) (a 5-3 decision); United States v. Mitchell, 445 U.S. 535 (1980) (a 5-3 decision). If one were to analyze the power of particular Justices in Indian cases based on the criteria of Professors Edelman and Chen, supra note 162, Rehnquist and O'Connor would emerge as especially influential. O'Connor is important because she is usually in the majority when the Court's Indian decisions are closely divided, although she dissented in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) (a 6-3 decision). Justice O'Connor also has joined in only three partial dissents. Arizona v. California, 120 S. Ct. 2304 (2000); Montana v. Crow Tribe of Indians, 523 U.S. 696 (1998); Okla. Tax Comm'n v. Chickasaw Nation, 515 U.S. 450 (1995). Rehnquist has been in the minority on an Indian decision only three times since he became Chief Justice. Idaho v. United States, 121 S. Ct. 2135 (2001); Mille Lacs Band of Chippewa Indians, 526 U.S. 172; Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989). Scalia and Thomas also have dissented only three times each in Indian cases. Idaho v. United States, 121 S. Ct. 2135 (2001) (Scalia, J., and Thomas, J., dissenting); Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (Scalia, J., and Thomas, J., dissenting); Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751 (1998) (Thomas, J., dissenting); Cabazon Band of Mission Indians, 480 U.S. 202 (Scalia, J., dissenting). It has been Rehnquist's prerogative as Chief, however, to select the Justice to write the opinions in all the cases in which he was in the majority, or 92% of the Indian cases. The author calculated this figure based on data compiled from his analysis of the Indian law cases.
232. Other scholars argue that there may be institutional factors (e.g., rules, voting, interaction of the members' different approaches, assignment of opinion-writing, and so forth) that prevail over individual Justices' preferences and philosophies and account better for outcomes. See discussion infra at notes 251-57. See generally SUPREME COURT DECISION-MAKING: NEW INSTITUTIONALIST APPROACHES (Cornell W. Clayton & Howard Gillman eds., 1999);
233. THE SUPREME COURT IN AMERICAN POLITICS: NEW INSTITUTIONALIST INTERPRETATIONS (Howard Gillman & Cornell Clayton eds., 1999);
234. Lee Epstein, Thomas G. Walker, & William J. Dixon, The Supreme Court and Criminal Justice Disputes: A Neo-Institutional Perspective, 33 AM. J. POL. SCI. 825 (1989).
235. I borrow terminology here from Rohde and Spaeth whose "attitudinal model" has been used to show empirically that the Justices' votes can be predicted based on their policy preferences. DAVID W. ROHDE & HAROLD J. SPAETH, SUPREME COURT DECISION MAKING 134-57 (1976). They posit that the most important determinants of decisions are the collective and individual values and attitudes of members of the Court. Id.;
236. see also JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL 64-73 (1993). The model is based on the idea that it is possible to identify "attitudes," or sets of interrelated beliefs about the type of party and the central legal issue in each case. An elaborate process is used to sort cases according to the type of party and the situation in which the case arose. The issue areas into which the cases are grouped then are assumed to exhibit interrelated sets of attitudes or values that can be attributed to individual Justices. Published research using the model is not sufficiently current to address the inquiry in this Article. Moreover, the aggregations of preferences termed "values" that Rohde and Spaeth identified (e.g., freedom, equality, libertarianism) were generalized to a level that does not aid in predicting the outcome of Indian cases. I did not attempt to replicate or adapt the modeling exercise but was inspired by it to search the multiple works of constitutional scholars analyzing and tabulating results in Supreme Court cases and then to try to draw from these analyses a set of "attitudes" that serve to predict outcomes based on past outcomes in Rehnquist Court decisions.
237. See infra notes 197-257 and accompanying text; see also supra Part VI.
238. Both the case analysis and the statistical methods have their frailties. Even a painstaking study of opinions and their reasoning may not tell much about how the Court will look on different facts in another time, let alone predict how the Court, or some majority of its members, will approach a case in another field of law. Statistics are harvested from results and do not probe the reasons for a decision. Indeed, the analytical method ultimately tells more about outcome than about the rationale or philosophical underpinnings of a decision, but the largely results-based studies of the hundreds of decisions of this Court, a majority of whose members has been seated under the same Chief Justice for more than a decade and all nine of whom have served together for over seven years, can yield some potentially reliable generalizations. If the statistics are overwhelming, commentators seem in agreement, and a survey of the underlying cases gives no reason to doubt that there is a trend, we can conclude that the information may be useful in identifying attitudes that will predict the direction of Indian law, provided it is information that describes circumstances that are likely to arise in Indian litigation.
239. Richard L. Pacelle, Jr., The Dynamics and Determinants of Agenda Change in the Rehnquist Court, in CONTEMPLATING COURTS 251, 268-69 (Lee Epstein ed., 1995).
240. See, e.g., Miller v. Johnson, 515 U.S. 900, 927 (1995) (rejecting congressional re-districting undertaken to prevent unnecessary minimization of districts with black majorities); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 204 (1995) (addressing set-aside programs benefiting minority contractors); Missouri v. Jenkins, 515 U.S. 70, 76-77 (1995) (addressing programs to induce white students to return to public schools).
241. Natasha L. Minsker, "I Have A Dream - Never Forget": When Rhetoric Becomes Law, A Comparison of the Jurisprudence of Race in Germany and the United States, 14 HARV. BLACKLETTER L.J. 113, 115 (1998).
242. Parker, supra note 100, at 766. Professor Casebeer argues, "Rewriting Brown to get rid of Court responsibility to end invidious subordination of current minorities by turning Brown into a demand for 'colorblindness' freezes existing majority race use of law to preserve the majority's gains and exclusivity of geographical location." Kenneth M. Casebeer, The Empty State and Nobody's Market: The Political Economy of Non-Responsibility and the Judicial Disappearing of the Civil Rights Movement, 54 U. MIAMI L. REV. 247, 252 (2000).
243. Parker, supra note 100, at 764.
244. See, e.g., Ann Tweedy, The Liberal Forces Driving the Supreme Court's Divestment and Debasement of Tribal Sovereignty, 18 BUFF. PUB. INT. L.J. 147, 214 (2000) ("While the Supreme Court's approach to Equal Protection analysis is problematic for all subordinated groups, it is especially so for Indian tribes which were formerly protected from assimilation by a fairly robust concept of tribal sovereignty.").
245. Rosche, supra note 162 (comparing the Burger and Rehnquist Courts' work in racial discrimination, free expression, and criminal law).
246. Id. at 2688-89.
247. Id. at 2689.
248. Id. at 2688-89. Of the 728 Burger Court decisions, 7.1% were discrimination cases; of the 448 Rehnquist Court decisions, only 5.1% were discrimination cases.
249. Id. at 2689-90.
250. Id. at 2695-98; see, e.g., Alexander v. Sandoval, 121 S. Ct. 1511 (2001); United States v. Armstrong, 517 U.S. 456 (1996); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
251. See DAVID G. SAVAGE, TURNING RIGHT: THE MAKING OF THE REHNQUIST SUPREME COURT 454 (1992) (arguing that one of two "exceptions to the general rule that individuals and their constitutional rights lose in the Rehnquist Court . . . involves white males who are the victims of 'affirmative action'").
252. Rosche, supra note 162, at 2696-97.
253. Id. at 2698.
254. Id. at 2701.
255. John Aloysius Farrell, Scales of Justice: When the Supreme Court Tips to the Left These Days, It is Often With the Help of Two Justices: New Hampshire's David Souter and Harvard's Stephen Breyer, THE BOSTON GLOBE MAG., May 10, 1998, at 16, 18.
256. But see Robert F. Nagel, Judicial Power and the Restoration of Federalism, 574 ANNALS AM. ACAD. POL. & SOC. SCI. 52, 53-56 (2001) (arguing that the Court is not necessarily "strongly committed," id. at 54, to the restoration of states' rights and stating that "[f]ederalism . . . is a constitutional principle singularly unsuited for judicial appreciation," id. at 56).
257. Drs. Bill Swinford & Eric N. Waltenburg, The Supreme Court and the States: Do Lopez and Printz Represent a Broader Pro-State Movement?, 14 J. L. & POL. 319, 321 (1998) (footnote omitted) (quoting Younger v. Harris, 401 U.S. 37, 44-45 (1971)).
258. SAVAGE, supra note 209, at 455. The Court has even curtailed congressional regulation of patents by striking down a federal law allowing patent infringement suits against states. Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 630 (1999).
259. Swinford & Waltenburg, supra note 214, at 355. These statistics compare to an overall reversal rate of 56% to 62% in all Supreme Court cases in the mid-1990s. Id.
260. Id.
261. Id. at 347-48 (citing Bush v. Vera, 517 U.S. 952 (1996); Shaw v. Hunt, 517 U.S. 899 (1996); Miller v. Johnson, 515 U.S. 900 (1995)).
262. Some scholars explain the Supreme Court's work as advancing the contemporary policy agenda of the political branches. See, e.g., GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 9-36 (1991);
263. Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. L. 279, 279-81 (1957).
264. See William N. Eskridge, Jr., Public Values in Statutory Interpretation, 137 U. PA. L. REV. 1007, 1009-10 (1989).
265. See Gottlieb, supra note 163, at 42 n.157.
266. GOTTLIEB, supra note 124, at 50.
267. Id. at 110.
268. Id. at 89.
269. Id. at 76-77.
270. Id. at 99-104.
271. See, e.g., Tim O'Brien, The Rehnquist Court: Holding Steady on Freedom of Speech, 22 NOVA L. REV. 713, 713-15 (1998) (claiming that "[t]he Rehnquist Court has shown impressive allegiance to First Amendment principles").
272. Rosche, supra note 162, at 2705; see also Gottlieb, supra note 163, at 32-37.
273. Rosche, supra note 162, at 2707.
274. Id. at 2715-16; see, e.g., Hurley v. Irish-American Gay, Lesbian, & Bisexual Group, Inc., 515 U.S. 557 (1995); Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992).
275. Rosche, supra note 162, at 2715.
276. The same study compared the records of the Burger and Rehnquist Courts in the criminal justice area and found that the results were statistically about the same. Id. at 2716. Much of the work of the Burger Court in the area of criminal law memorialized a "retreat from the decisions of the Warren Court" that were seen by many as overly sympathetic to defendants. Id. at 2718. The study observes that in terms of its criminal law jurisprudence the Rehnquist Court has continued "to subjugate criminal rights to the majority's interest in effective law enforcement." Id. at 2726.
277. See id. at 2687.
278. Gottlieb, supra note 163, at 28-29.
279. Id.
280. Id. at 29-31; see also GOTTLIEB, supra note 124.
281. Gottlieb, supra note 163, at 32-34.
282. Id. at 40.
283. Id. at 39-41.
284. Id. at 35-37.
285. See Erwin Chemerinsky, History, Tradition, the Supreme Court, and the First Amendment, 44 HASTINGS L.J. 901, 901 (1993) (discussing the Court's reliance on history and tradition in constitutional interpretation);
286. Rebecca L. Brown, Tradition and Insight, 103 YALE L.J. 177, 177-81 (1993) (arguing for selective use of tradition in constitutional interpretation that neither "dismiss[es] all that has gone before as irrelevant" nor finds "that the past is dispositive of constitutional issues").
287. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991) ("The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals . . . .").
288. Bowers v. Hardwick, 478 U.S. 186, 196 (1986); cf. Gottlieb, supra note 90, at 15-17 (suggesting that the majority in Romer v. Evans, 517 U.S. 620 (1996), rejected the Colorado amendment prohibiting local governments from protecting homosexuals from discrimination because it was overbroad, and the Court's position remains consistent with sustaining sanctions on homosexual activity).
289. TINSLEY E. YARBROUGH, THE REHNQUIST COURT AND THE CONSTITUTION 176 (2000).
290. Gottlieb, supra note 163, at 26-28.
291. This is the formulation of United States v. Caroline Products Co., 304 U.S. 144, 152-53 n.4 (1938).
292. See, e.g., ARCHIBALD COX, THE ROLE OF THE SUPREME COURT IN AMERICAN GOVERNMENT 1, 31-75 (1976) (discussing the proper role of judicial review as "an instrument of social policy");
293. JOHN HART ELY, ON CONSTITUTIONAL GROUND 14-18 (1996) (discussing the role of judicial review in protecting fundamental and minority interests in the American democratic political system).
294. YARBROUGH, supra note 244, at 101-26.
295. Mark Tushnet, Foreword: The New Constitutional Order and the Chastening of Constitutional Aspiration, 113 HARV. L. REV. 29, 66 (1999).
296. See, e.g., E. Enters, v. Apfel, 524 U.S. 498 (1998); Dolan v. City of Tigard, 512 U.S. 374 (1994); Nollan v. Cal. Coastal Comm'n, 483 U.S. 825 (1987).
297. See generally sources cited supra note 193.
298. See Ronald Kahn, Institutional Norms and Supreme Court Decisionmaking: The Rehnquist Court on Privacy and Religion, in SUPREME COURT DECISION-MAKING: NEW INSTITUTIONALIST APPROACHES 175-76 (Cornell W. Clayton & Howard Gillman eds., 1999) (a collection of studies addressing the role of institutional factors in judicial decisions).
299. See, e.g., id. at 177-96.
300. Professor Kahn maintains that the most accurate way to understand differences among Justices, and among Courts in different eras, is by an examination of their treatment of rights principles and polity principles - that is, how they weigh individual rights and the powers and processes of governments. Ronald Kahn, The Supreme Court as a (Counter) Majoritarian Institution: Misperceptions of the Warren, Burger, and Rehnquist Courts, 1994 DET. C.L. REV. 1, 3 (1994). On the Rehnquist Court he identifies a bloc of the Court, including Rehnquist, Scalia, and Thomas, that trusts majoritarian politics to resolve individual rights questions while Justices like O'Connor, Souter, Kennedy, and Stevens do not trust the system to protect minority rights. Id. at 38-39. Justices Breyer and Ginsburg had not joined the Court when Kahn wrote this article. The best example of a decision where institutional factors dominated the Court's expressed rationale was Planned Parenthood v. Casey, 505 U.S. 833, 865-68 (1992), where the Court agreed to adhere to precedent prohibiting certain state laws that restrict abortion rights while expressing concern for preserving the legitimacy of the Court and the rule of law.
301. E.g., Lee v. Weisman, 505 U.S. 577, 599 (1992) (striking down school prayer at a public school graduation); cf. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 542 (1993) (striking down a law directed at the religious sacrifice of chickens, finding it to be aimed specifically at the practices of Santeria Church).
302. E.g., Agostini v. Felton, 521 U.S. 203, 234-35 (1997) (upholding a New York City program in which public schools shared teachers with parochial schools); Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 890 (1990) (finding no Free Exercise violation where a state drug law restricted an unusual religious practice). The Court has also been inclined to relax limitations on the separation of church and state. E.g., Bowen v. Kendrick, 487 U.S. 589, 593 (1988) (validating on its face a federal law funding programs that taught teenagers chastity and adoption as alternatives to abortion). See generally ROBERT J. MCKEEVER, RAW JUDICIAL POWER?: THE SUPREME COURT AND AMERICAN SOCIETY 263 (1993) ("[N]either the fact that the 'wall of separation' between church and state has been dismantled slowly, nor that much of the conflict over it has been symbolic, should be allowed to detract from the significance of the conservative victory [by religious groups who influenced Supreme Court appointments].").
303. E.g., City of Boerne v. Flores, 521 U.S. 507, 536 (1997) (overturning a law that required a compelling state interest to justify government interference with free exercise of religion, on the ground that it exceeded congressional authority).
304. Critical race theory may offer a further explanation for the Court's recent decisions. Federal Indian law has its roots in a colonial tradition that was justified by regarding native peoples as culturally inferior. See generally ROBERT A. WILLIAMS, JR., THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST (1990).
305. It is true that basic concepts of Indian law began as an apology for colonialism. Arguably, the current Court is simply advancing that tradition. See, e.g., Robert A. Williams, Jr., Columbus's Legacy: The Rehnquist Court's Perpetuation of European Cultural Racism Against American Indian Tribes, 39 FED. B. NEWS & J. 358, 363-67 (1992).
306. Indeed, the three trends in the Court that I identify here as having swept Indian law in their wake - promotion of states' rights, color-blind justice, and mainstream values - are exactly the kinds of forces that critical race scholars would expect to result within racial hierarchy. Yet I remain skeptical that this explanation is sufficient. First, despite its origins, federal Indian law, with its historical insistence on specific abrogation of tribal rights and powers, has tended to provide a brake on potentially destructive change when Congress did not act with clear intent to abrogate tribal rights. See, e.g., Ex parte Crow Dog, 109 U.S. 556, 572 (1883) (holding that U.S. courts could not prosecute one Indian for murdering another without a specific statute abrogating tribal jurisdiction).
307. Tribes were treated even-handedly, if not generously, by the Court in eras when political forces ran heavily against them. See, for example, Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832), a controversial decision denying state jurisdiction over Cherokee territory within Georgia in an era when federalism was being defined by the Court, as discussed supra in the text accompanying notes 6-19. Second, I do not believe that a case can be made that the present Justices harbor racist motives more extreme than were manifested by any predecessor Courts. In any event, the literature of critical race theory provides some perspectives that may be helpful in understanding the limits of traditional institutions for dealing with issues of race and the difficulties people of color generally have in separating themselves from the American mainstream. See Richard Delgado & Jean Stefancic, Critical Race Theory: An Annotated Bibliography, 79 VA. L. REV. 461, 461 (1993). Moreover, the views of scholars dubious about the efficacy of liberal institutions in dealing with race questions will be reinforced by recent developments in Indian law. If Indian tribes, with purportedly solid legal claims to sovereignty, cultural independence, and their own land base find their rights in jeopardy because of a shift in judicial attitude or behavior, the rights of other minorities, with ostensibly less entrenched rights, appear even more tenuous.
308. Cf. Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 NW. U. L. REV. 251, 310 (1997) (noting that one scholar claims that the attitudinal model has 90% predictive power).
309. One commentator attributes the Court's recent Indian sovereignty decisions to an "implicit comparison between tribal sovereignty and other race-based legislation." Tweedy, supra note 202, at 181.
310. See supra notes 6-17 and accompanying text.
311. 121 S. Ct. 2304 (2001). Although all nine Justices joined in the judgment, seven members of the Court were party to one or more of four concurring opinions that expressed different rationales and different levels of agreement or disagreement with the majority. Thus, while the potential reach of the decision is great, the practical consequences will depend on the outcomes of future cases.
312. The Court primarily cited dicta in Strate v. A-1 Contractors, Inc., 520 U.S. 438 (1997), Montana v. United States, 450 U.S. 544 (1981), and Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). See 121 S. Ct. at 2309-11. It also placed reliance on dicta from two rarely-cited nineteenth century cases: United States v. Kagama, 118 U.S. 375 (1886), and Utah & Northern Railway Co. v. Fisher, 116 U.S. 28 (1885). See 121 S. Ct. at 2312.
313. 121 S. Ct. at 2308.
314. Id. at 2318.
315. See Atkinson Trading Co. v. Shirley, 121 S. Ct. 1825, 1835 (2001) (concluding that nonmembers are not subject to hotel tax at a hotel on non-Indian land); Strate, 520 U.S. at 453 (finding no tribal jurisdiction to adjudicate a personal injury case against a non-Indian on a tribally granted state highway right-of-way); Montana v. United States, 450 U.S. at 565 (holding that no tribal regulation of non-Indian hunting and fishing is allowed on land owned in fee by a non-Indian). These decisions concerning non-Indian activities on non-Indian land within reservations were subject to exceptions so that tribes would retain jurisdiction over a nonmember's activities, even on fee land, if the nonmember was present under a consensual relationship or the activity threatened or had a direct effect on the tribe's political integrity, economic security, or health and welfare. See id. at 565-66.
316. Atkinson Trading Co., 121 S. Ct. at 2308-18.
317. Id. at 2324 (O'Connor, J., concurring in part and concurring in the judgment).
318. Id. at 2316 (internal quotation marks omitted).
319. Id. at 2324 (O'Connor, J., concurring in part and concurring in the judgment) (internal quotation marks omitted).
320. Id. at 2333 (Stevens, J., concurring in the judgment).
321. McClanahan v. Ariz. State Tax Comm'n, 411 U.S. 164, 168-73 (1973). Where "a State asserts authority over the conduct of non-Indians engaging in activity on the reservation" the Court will examine all the federal laws, treaties, and policies "in terms of both the broad policies that underlie them and the notions of sovereignty that have developed from historical traditions of tribal independence." White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144-45 (1980). In this preemption analysis, the Court will take account of state interests "to determine whether, in the specific context, the exercise of state authority would violate federal law." Id. at 145.
322. Williams v. Lee, 358 U.S. 217, 220 (1959). This test has been applied principally when a state asserts its jurisdiction in Indian country in "situations involving non-Indians." McClanahan, 411 U.S. at 179.
323. 435 U.S. 191 (1978).
324. Id. at 211.
325. Id. at 208 (quoting the lower court in Oliphant v. Schlie, 544 F.2d 1007, 1009 (9th Cir. 1976)).
326. Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987).
327. 450 U.S. 544 (1981).
328. Id. at 547-49.
329. Id. at 565.
330. Id.
331. Id. at 565-66.
332. 121 S. Ct. at 2310 (quoting Montana v. United States, 450 U.S. at 564-65); see discussion supra note 33. The rules in Oliphant and Montana v. United States and their underlying rationales have been subject to criticism. See, e.g., Getches, supra note 2 at 1595-99, 1608-13.
333. Oliphant, 435 U.S. at 210; see Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 543-44 (1832) (holding that, upon "discovery" by European nations, tribes lost power to transfer lands without the consent of the discovering nation and to engage in external relations with other nations); Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 570 (1823); see also supra note 6 and accompanying text. The Court said that there had always been an "unspoken assumption" that tribes lacked criminal jurisdiction over non-Indians based on evidence that "Congress shared the view" of all branches of government. Oliphant, 435 U.S. at 203.
334. Montana v. United States, 450 U.S. at 558-60. The Court said, "It defies common sense to suppose that Congress would intend that non-Indians purchasing allotted lands would become subject to tribal jurisdiction when an avowed purpose of the allotment policy was the ultimate destruction of tribal government." Id. at 560 n.9.
335. Id. at 560 n.9.
336. New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 330-31 (1983).
337. Nevada v. Hicks, 121 S. Ct. 2304, 2316 (2001) (emphasis added).
338. Id. at 2310 n.3.
339. Montana v. United States, 450 U.S. at 566.
340. Hicks, 121 S. Ct. at 2316.
341. Id. at 2320 (quoting Montana v. United States, 450 U.S. at 564-65).
342. See Williams v. Lee, 358 U.S. 217, 220 (1959); see also supra note 273 and accompanying text.
343. See McClanahan v. Ariz. State Tax Comm'n, 411 U.S. 164, 179-81 (1973). At best, state jurisdiction precedents were relevant to show that it is an infringement on tribal self-government when individual tribal members are subjected to authority other than tribal authority. If allowing a non-Indian to hail a reservation Indian into state court would be an infringement in Williams, and allowing a state to impose an income tax on an individual reservation Indian in McClanahan would infringe tribal sovereignty, it follows that the violation of personal or property rights of a reservation Indian perpetrated by a state officer trying to enforce state law on tribal land on the reservation impacts tribal government.
344. See, e.g., Hicks, 121 S. Ct. at 2312 (conceding that while "it is not entirely clear from our precedent" whether state law enforcement is allowed on Indian reservations, "several of our opinions point in that direction"). The Court relies on dicta in two nineteenth century decisions that Scalia interprets to express "concern . . . over . . . federal encroachment on state prerogatives." Id. (citing Utah & N. Ry. Co. v. Fisher, 116 U.S. 28 (1885) and United States v. Kagama, 118 U.S. 375 (1886)). But cf., e.g., Cohen, supra note 1 at 259 ("State law generally is not applicable to Indian affairs within the territory of an Indian tribe . . . ."); id. at 349-52 (discussing the general rule and narrow exceptions). Interestingly, Kagama rejected the arguments that the state had jurisdiction over a murder committed by an Indian and indicated that, even if Congress had not made it a federal crime under the Major Crimes Act, the state courts would not have jurisdiction. See 118 U.S. at 384-85.
345. 517 U.S. 44 (1996), rev'g Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989).
346. See, e.g., Laura M. Herpers, State Sovereign Immunity: Myth or Reality after Seminole Tribe v. Florida?, 46 CATH. U. L. REV. 1005, 1038 (1997); Eleas Horne, Seminole Tribe v. Florida: The Eleventh Amendment Upholds State Sovereign Immunity in the Face of Congressional Abrogation to the Contrary, 17 J. LAND RESOURCES & ENVTL. L. 108, 138 (1997); Timothy C. Sansone, Constricting the Commerce Clause: Seminole Tribe as an Extension of Lopez and New York, 41 ST. LOUIS U. L.J. 1327, 1359 (1997).
347. Others have suggested that the Court may have seen Seminole Tribe as an "opportunity to erode tribal sovereignty." E.g., Melissa L. Koehn, The New American Caste System: The Supreme Court and Discrimination Among Civil Rights Plaintiffs, 32 U. MICH. J.L. REFORM 49, 66 (1998).
348. Seminole Tribe, 517 U.S. at 77 (Stevens, J., dissenting).
349. See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 221-22 (1987).
350. See id. at 214-21.
351. 25 U.S.C. §§ 2701-2721 (1994).
352. See id. § 2703(6)-(8).
353. Id. § 2710(a)(1).
354. Id. § 2710(a)(2).
355. See id. § 2710(a)(6).
356. Id. § 2710(d)(7)(A)(i), 2710(d)(7)(B)(i) (1994).
357. Curiously, the federal court checkpoint may have favored states in practice. It allowed judicial review of the state's approach to negotiation before the matter would be taken out of the state's hands. Seminole Tribe struck down the step in the process that allowed the state to prove its good faith before the matter went to a mediator who could present a "last offer" to the state. Seminole Tribe v. Florida, 517 U.S. 44, 74-75 (1996). Now, however, if the state rejects this offer, the Secretary of the Interior can unilaterally impose compact terms in consultation only with the tribe - just as if the state had gone to court and lost. Id. Justice Stevens's dissent notes that this is how the court of appeals assumed the IGRA process would work in absence of the judicial review provision. Id. at 99 (Stevens, J., dissenting).
358. The Court itself had cautioned only six years before that federal enactments, generally under the Indian Commerce Clause power, were subject to a different analysis for purposes of preemption analysis: "The unique historical origins of tribal sovereignty make it generally unhelpful to apply to federal enactments regulating Indian tribes those standards . . . that have emerged in other areas of the law." White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980).
359. 491 U.S. 1, 12 (1989).
360. Seminole Tribe, 517 U.S. at 62.
361. Id. at 147-48 (Souter, J., dissenting).
362. It does not appear that tribes will suffer much direct harm under the IGRA as a result of Seminole Tribe. Indeed, the greatest impact may be on legislation in other fields. Depending on the willingness of the Secretary of the Interior to take a strong position, tribes may actually find the IGRA process more to their advantage without the provision for federal judicial review. See Martha A. Field, The Seminole Case, Federalism, and the Indian Commerce Clause, 29 ARIZ. ST. L.J. 3, 3-4 (1997). The impact on other Indian legislation of the Court's conflation of the interstate and Indian Commerce Clauses is unknown. The Court has, however, continued to narrow its reading of the interstate Commerce Clause's grant of power to Congress. See, e.g., Jones v. United States, 529 U.S. 848, 858-59 (2000) (construing a federal arson statute as inapplicable to a private home in order to avoid a possible Commerce Clause issue); United States v. Morrison, 529 U.S. 598, 617 (2000) (striking down the Violence Against Women Act as beyond the commerce power).
363. See Christopher P. Banks, Reversals of Precedent and Judicial Policy-Making: How Judicial Conceptions of Stare Decisis in the U.S. Supreme Court Influence Social Change, 32 AKRON L. REV. 233, 249 (1999) ("Seminole Tribe is a significant Eleventh Amendment case that advances a particular
364. 521 U.S. 261 (1997). The decision is analyzed critically by John P. LaVelle, Sanctioning a Tyranny: The Diminishment of Ex Parte Young, Expansion of Hans Immunity, and Denial of Indian Rights in Coeur d'Alene Tribe, 31 ARIZ. ST. L.J. 787 (1999).
365. See Coeur d'Alene Tribe, 521 U.S. at 287-88.
366. Id. at 281-88; see also Ex parte Young, 209 U.S. 123, 167 (1908) (holding that the Eleventh Amendment does not bar suit against a state official).
367. See, e.g., Choctaw Nation v. Oklahoma, 397 U.S. 620, 634-35 (1970) (establishing that an Indian reservation can be an appropriate public purpose for denying the state's ownership of submerged lands under the policy set out in Shively v. Bowlby, 152 U.S. 1, 49-50 (1894)).
368. The claims were later pressed and vindicated by the United States as trustee for the tribe's lands. See Idaho v. United States, 121 S. Ct. 2135 (2001).
369. In fact, Coeur d'Alene Tribe relied in part upon another Indian law decision in which the Court assumed that states would not have consented to the Constitution if they thought that they would be subject to suits by tribes. Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779 (1991). Justice Scalia based the Court's holding in the case on a "presupposition of our constitutional structure" that tribes were not like the other governments (state or federal) that could sue states. Id.
370. 494 U.S. 872 (1990).
371. See id. at 874.
372. Id. at 888.
373. E.g., John Delaney, Police Power Absolutism and Nullifying the Free Exercise Clause: A Critique of Oregon v. Smith, 25 IND. L. REV. 71, 72 (1991) (arguing that "minority religious claims will be held hostage to majoritarian politics" after the Smith decision); Roald Mykkelvedt, Employment Division v. Smith: Creating Anxiety by Relieving Tension, 58 TENN. L. REV. 603, 631 (1991) (concluding that "[i]f the Smith decision stands, the degree to which various sects will be free to exercise their religions will be determined by their political power and not by the application of legal principles by a disinterested judiciary").
374. See Religious Freedom Restoration Act, 42 U.S.C. § 2000bb - 2000bb-4 (1994) (restoring the compelling interest test requiring strict scrutiny of laws burdening religious freedom).
375. City of Boerne v. Flores, 521 U.S. 507, 511 (1997). By striking down the Religious Freedom Restoration Act the "Supreme Court underscored its power." O'BRIEN, supra note 81, at 370.
376. Lyng v. N.W. Indian Cemetery Protective Ass'n, 485 U.S. 439, 450-52 (1988).
377. The Court, indeed, did not reach the compelling interest test, because it said the tribes had not proven that the government's actions were sufficient to "prohibit the free exercise of [their] religion." 485 U.S. at 450-52. This did not stop Justice Scalia from finding Lyng was indistinguishable: "[I]t is hard to see any reason in principle or practicality why the government should have to tailor its health and safety laws to conform to the diversity of religious belief, but should not have to tailor its management of public lands . . . ." Smith, 494 U.S. at 885 n.2.
378. Lyng, 485 U.S. at 447.
379. Charles Wilkinson has used the term "measured separatism" to describe the essential result of traditional Indian law that is preserved by tribal sovereignty and limited state jurisdiction in Indian country. See WILKINSON, supra note 1, at 14-19.
380. 485 U.S. at 451.
381. N.W. Indian Cemetery Protective Ass'n v. Peterson, 795 F.2d 688, 693 (9th Cir. 1986).
382. 494 U.S. at 890.
383. 528 U.S. 495 (2000).
384. See id. at 517.
385. See id. at 499.
386. E.g., Morton v. Mancari, 417 U.S. 535, 552-55 (1974) (upholding Congress's authority to single out Native Americans for specific legislative treatment); see also Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 673 n.20 (1979); United States v. Antelope, 430 U.S. 641, 645-47 (1977); Moe v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 425 U.S. 463, 479-80 (1976); Fisher v. Dist. Court, 424 U.S. 382, 390-91 (1976).
387. See supra notes 197-212 and accompanying text.
388. See supra Part VII.
389. See supra notes 213-18 and accompanying text.
390. From the 1986 Term through the 2000 Term, twenty-eight of the Court's forty-one Indian decisions had a state as a party or involved a contest over whether state jurisdiction applied. Nevada v. Hicks, 121 S. Ct. 2304 (2001); Idaho v. United States, 121 S. Ct. 2135 (2001); Arizona v. California, 120 S. Ct. 2304 (2000); Rice v. Cayetano, 528 U.S. 495 (2000); Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999); Ariz. Dep't of Revenue v. Blaze Constr. Co., 526 U.S. 32 (1999); Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998); Montana v. Crow Tribe of Indians, 523 U.S. 696 (1998); Alaska v. Native Vill. of Venetie Tribal Gov't, 522 U.S. 520 (1998); South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998); Idaho v. Coeur d'Alene Tribe, 521 U.S. 261 (1997); Seminole Tribe v. Florida, 517 U.S. 44 (1996); Okla. Tax Comm'n v. Chickasaw Nation, 515 U.S. 450 (1995); Dep't of Taxation and Fin. v. Milhelm Attea & Bros., 512 U.S. 61 (1994); Hagen v. Utah, 510 U.S. 399 (1994); South Dakota v. Bourland, 508 U.S. 679 (1993); Okla. Tax Comm'n v. Sac and Fox Nation, 508 U.S. 114 (1993); Negonsott v. Samuels, 507 U.S. 99 (1993); Blatchford v. Native Vill. of Noatak, 501 U.S. 775 (1991); Okla. Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991); Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872 (1990); Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408 (1989); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989); Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989); Okla. Tax Comm'n v. Graham, 489 U.S. 838 (1989); Employment Div., Dep't of Human Res. v. Smith, 485 U.S. 660 (1988); California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).
391. 528 U.S. at 517. The other cases in which states did not prevail over Indian interests were Idaho v. United States, 121 S. Ct. 2135, 2146-47 (2001), which recognized tribal ownership of a lakebed within the reservation, Arizona v. California, 120 S. Ct. 2304, 2310 (2000), which allowed a tribe to pursue a water rights claim, and Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 207-08 (1999), discussed infra notes 386-91 and accompanying text.
392. See 517 U.S. 44.
393. See supra note 79 and accompanying text.
394. 520 U.S. 438 (1997).
395. See id. at 442-43.
396. Id. at 459.
397. Id. (footnote omitted).
398. 121 S. Ct. 2304, 2323 (2001) (Souter, J., concurring) (citations omitted); see also supra note 122.
399. See Arthur L. Corbin, The Laws of the Several States, 50 YALE L.J. 762, 771 (1941) (describing the "juristic data" available to state courts to "include the state constitution and statutes, former opinions of the state courts of every rank, opinions of the courts of other states, the Restatements of the American Law Institute, the works of juristic writers, [and] the mores and practices of the community");
400. see also Ellen A. Peters, Capacity and Respect: A Perspective on the Historic Role of the State Courts in the Federal System, 73 N.Y.U. L. REV. 1065, 1070-71 (1998) (observing that those "who serve on state supreme courts see the creation of an integrated state jurisprudence, without sharp lines of demarcation between constitutional law, statutory law, and judge-made law, as part of [their] judicial responsibility");
401. Jill Welch, Local Government - Home Rule Doctrine and State Preemption - The Iowa Supreme Court Resurrects Dillon's Rule and Blurs the Line Between Implied Preemption and Inconsistency, 30 RUTGERS L.J. 1548, 1548 (1999) (discussing "the tension between the Iowa Constitution's limitation on local ordinances, which are inconsistent with state laws, and the express statutory grant of power to localities to set standards and requirements which are higher or more stringent than those imposed by state law").
402. See Hicks, 121 S. Ct. at 2310 ("'[I]nherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe except to the extent 'necessary to protect tribal self-government or to control internal relations.'") (quoting Montana v. United States, 450 U.S. 544, 564-65 (1981)); Strate, 520 U.S. at 457 (noting that Indian tribes lack civil authority over the conduct of nonmembers except concerning "conduct that 'threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe'") (quoting Montana v. United States, 450 U.S. at 556).
403. EUGENE F. SCOLES ET AL., CONFLICT OF LAWS 732-33 (3d ed. 2000).
404. Strate, 520 U.S. at 451 (quoting Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987)).
405. Id. at 451-53.
406. Id. at 456.
407. 450 U.S. at 564-67.
408. See id. at 565; supra notes 269-82 and accompanying text.
409. Strate, 520 U.S. at 442-43.
410. Id. at 457.
411. Id. at 446 (quoting Montana v. United States, 450 U.S. at 565-66).
412. Id. at 457-58.
413. Id. at 458; see also Atkinson Trading Co. v. Shirley, 121 S. Ct. 1825, 1829 (2001) (refusing to apply either Montana exception to allow a tribal tax on guests at a reservation hotel on an isolated parcel of non-Indian land that received tribal governmental services).
414. See Amoco Prod. Co. v. S. Ute Indian Tribe, 526 U.S. 865 (1999); Montana v. Crow Tribe of Indians, 523 U.S. 696 (1998).
415. Crow Tribe, 523 U.S. at 713.
416. Amoco, 526 U.S. at 871-72.
417. Crow Tribe, 523 U.S. at 715-19.
418. Amoco, 526 U.S. at 880.
419. 523 U.S. at 702.
420. See id. at 706 (citing Crow Tribe of Indians v. Montana, 819 F.2d 895 (9th Cir. 1987)).
421. See id. at 702.
422. See id. at 716.
423. 526 U.S. at 877-80.
424. See id. at 870.
425. See id. at 868.
426. See id. at 876.
427. Federal Respondents' Brief at 5-6, Amoco (No. 98-830).
428. 526 U.S. at 874-75.
429. Id. at 871-73.
430. 463 U.S. 110, 143 (1983). The Court later cited Nevada's concern for non-Indian water claimants to justify a decision allowing non-Indians, who were adverse to a tribe in water rights litigation, to obtain a tribe's confidential communications with the Bureau of Indian Affairs (BIA) by directing a request to the BIA under the Freedom of Information Act. See Dep't of Interior and Bureau of Indian Affairs v. Klamath Water Users Protective Ass'n, 121 S. Ct. 1060, 1069 (2001). The BIA had sought the information in its capacity as the tribe's trustee in preparing for the litigation, and the documents may not have been discoverable in the litigation. See id. at 1064. The Court rejected the argument that the communication was internal in that the tribe was effectively a consultant, providing expertise on use of water and strategy for presenting claims, because the tribe had an interest in the outcome. See id. at 1067-68.
431. 463 U.S. at 144.
432. 460 U.S. 605 (1983).
433. See id. at 612.
434. See id. at 615-16.
435. See id. at 620.
436. See id. The Court did allow the tribes to assert a relatively small fraction of their claims if a title dispute later established tribal ownership of additional irrigable lands. Such a case eventually reached the Supreme Court. See Arizona v. California, 120 S. Ct. 2304, 2310 (2000) (allowing Quechan Tribe to present claims to irrigable acreage where the United States had occupied reservation land for a canal to serve others and denied tribal title; the United States admitted error after adjudication of water rights).
437. See Okla. Tax Comm'n v. Sac and Fox Nation, 508 U.S. 114, 123 (1993) (upholding tribal sovereign immunity, quoting Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 557 (1832), for the rule that within Indian territorial boundaries, Indian "'authority is exclusive'"); see also Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202-03, 208 (1999) (upholding treaty rights, invoking canons of construction); Kiowa Tribe v. Mfg. Techs., Inc. 523 U.S. 751, 760 (1998) (upholding tribal sovereign immunity). The other cases in which tribes prevailed are Arizona v. California, 120 S. Ct. 2304 (2000), and Idaho v. United States, 121 S. Ct. 2135 (2001).
438. 526 U.S. 172.
439. See id. at 175-85.
440. 443 U.S. 658, 662 (1979) (dealing with the treaty fishing rights in Washington).
441. See Lac Courte Orielles Band v. Voigt, 700 F.2d 341 (7th Cir. 1983).
442. See, e.g., United States v. Michigan, 471 F. Supp. 192 (W.D. Mich. 1979).
443. Another view is that the decision in Mille Lacs Band of Chippewa Indians to uphold Indian treaty rights was produced by balancing state and tribal interests. See The Supreme Court, 1998 Term, Leading Cases, 113 HARV. L. REV. 200, 397-99 (1999). If so, the approach, if not the result, is inconsistent with an analysis using Indian law foundational principles. See generally Getches, supra note 2, at 1626-30 (arguing that the Court's interest-balancing test is, at best, misguided).
444. E.g., Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 851 (1985) ("Indian tribes occupy a unique status under our law."); Oneida County v. Oneida Indian Nation, 470 U.S. 226, 247 (1985) (stating that the canons of construction of Indian law "are rooted in the unique trust relationship between the United States and the Indians"); Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 575-76 (1983) ("Indians have historically enjoyed a unique relationship with the federal government . . . ."); Cherokee Nation v. Georgia, 30 U.S. 1, 15 (1831) ("[T]he relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else.").
445. See supra note 36 and accompanying text.
446. The risk may be multiplied if courts are uncritical of the purposes and intended limits of legislation. Cf. Vine Deloria, Jr., The Wisdom of Congress and Other Folklore, 23 OKLA. CITY U. L. REV. 261, 261-62 (1998) (arguing that deference to congressional wisdom is unjustified).
447. Felix S. Cohen, The Erosion of Indian Rights, 1950-53: A Case Study in Bureaucracy, 62 YALE L.J. 348, 390 (1953).
448. See Delos Sacket Otis, History of the Allotment Policy, Readjustment of Indian Affairs: Hearings on H.R. 7902 Before the House Comm. on Indian Affairs, 73d Cong., 2d Sess., pt. 9, at 428-85 (1934);
449. see also The Purposes and Operation of the Wheeler-Howard Indian Rights Bill, Readjustment of Indian Affairs: Hearings on H.R. 7902 Before the House Comm. on Indian Affairs, 73d Cong., 2d Sess., 15-18 (1934) (memorandum by John Collier, Commissioner of Indian Affairs).
450. See COHEN, supra note 1, at 136-38, 144-45.
451. See Gary Orfield, A Study of the Termination Policy (1966),
452. reprinted in SEN. COMM. ON LABOR AND PUB. WELFARE, 91ST CONG., 1ST SESS., THE EDUCATION OF AMERICAN INDIANS 674-90 (Comm. Print 1970).
453. THE EDUCATION OF AMERICAN INDIANS 674-90 1970 Id.
454. Congressional action during the termination era ended federal recognition of 110 tribes and bands in eight states. Michael C. Walch, Terminating the Indian Termination Policy, 35 STAN. L. REV. 1181, 1186 (1983). Termination resulted in the loss of tribal government authority, federal Indian programs, state tax exemptions, the trust relationship with the United States, and reservation land. Id. at 1188-90.
455. Termination was rejected, and, fifteen years after it began, President Nixon declared the new Indian policy to be "self-determination without termination." Id. at 1191. Subsequently, Congress passed the Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450 (1994), and promised tribes an increased role in development of Indian policy and administration of federal Indian programs. Id. Virtually all terminated tribes have been "restored" by congressional action. See Judith V. Royster, The Legacy of Allotment, 27 ARIZ. ST. L.J. 1, 18 n.96 (1995).
456. E.g., Lone Wolf v. Hitchcock, 187 U.S. 553 (1903); United States v. Kagama, 118 U.S. 375 (1886).
457. Getches, supra note 2, at 1589-93.
458. Id. at 1573-74.
459. See Raymond Cross, Sovereign Bargains, Indian Takings and the Preservation of Indian Country in the Twenty-First Century, 40 ARIZ. L. REV. 425, 433-47 (1998).
460. See supra notes 38-40 and accompanying text.
461. For example, Senator Slade Gorton of Washington, a notorious foe of tribal sovereignty, proposed measures to reduce significantly tribes' governmental immunity. In 1998, he introduced the American Indian Equal Justice Act, which would have allowed contract and tort claims against a tribe to be brought in state and federal courts instead of tribal courts. See S. 1691, 105th Cong. (1998); Congress Considers Abolishing Tribal Immunity, THE CONN. L. TRIB., May 11, 1998;
462. see also H.R. 2107, 105th Cong. § 120 (1997) (attempting to accomplish the same result). Representative Bill Archer of Texas proposed to tax all business ventures of Indian tribes at 34%. See H.R. 1554, 105th Cong. (1997); Official Says Tribal Power Threatened, THE DALLAS MORNING NEWS, June 10, 1997, at 26A.
463. These efforts were unsuccessful but could recur. See Chris Casteel, Senator Withdraws Bill to Limit Indian Tribes' Immunity, DAILY OKLAHOMAN, May 21, 1998, at 1.
464. But see Faith Bremner, American Indians Voice Opposition to Gorton as Interior Secretary, GANNETT NEWS SERV., Dec. 22, 2000, available at 2000 WL 4410186 (attributing the reelection defeat of Senator Slade Gorton to tribal political action and contributions).
465. See supra note 401.
466. E.g., Indian Self-Determination & Education Assistance Act, 25 U.S.C. § 450a-450n (1994) (allowing contracting by tribes to perform services formerly performed by the BIA); Indian Self-Determination Contract Reform Act, 25 U.S.C. § 450b, 450c, 450e, 450f, 450j, 450j-1, 450k-450m-1, 450n (1994) (strengthening the contracting authority of tribes); Tribal Self-Governance Act, 25 U.S.C. §§ 450a note, 458aa-458hh (1994) (allowing tribes to participate in a "self-governance" project with funds administered under a program akin to block grants); see also Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (1994) (establishing a comprehensive scheme for adjudication of child custody cases, giving primacy to tribal courts); Indian Law Enforcement Reform Act, 25 U.S.C. §§ 2801-2809 (1994) (strengthening reservation administration of justice).
467. See Indian Health Care Improvement Act, 25 U.S.C. §§ 1613-1682 (1994);
468. Tribally Controlled Community College Assistance Act, 25 U.S.C. §§ 1801-1852 (1994);
469. Indian Alcoholism and Substance Abuse Prevention Act, 25 U.S.C. §§ 2040-2478 (1994);
470. Tribally Controlled School Grants Act, 25 U.S.C. §§ 2501-2511 (1994);
471. Indian Education Act, 25 U.S.C. §§ 2601-2651 (1994);
472. Indian Child Protection and Family Violence Protection Act, 25 U.S.C. §§ 3201-3211 (1994);
473. cf. Native American Languages Act, 25 U.S.C. §§ 2901-2906 (1994) (encouraging teaching of indigenous languages).
474. Legislation has also supported tribal economic development. E.g., Indian Financing Act, Pub. L. No. 90-499, 98 Stat. 1725 (1984) (codified as amended in scattered sections of 25 U.S.C.);
475. cf. Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721 (1994) (establishing a regime for tribal gambling businesses that modified but did not substantially undermine tribal immunity from state law); see supra text accompanying notes 301-06, 312.
476. Amendments to federal environmental statutes gave tribes the option of being treated as states for the purpose of carrying out programs on their reservations. See Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136u (1994);
477. Clean Water Act, 33 U.S.C. §§ 1370-1377 (1994);
478. Safe Drinking Water Act, 42 U.S.C. § 300j-11, 300h-1 (1994);
479. Clean Air Act, 42 U.S.C. §§ 7474, 7601(d) (1994);
480. Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9604(c) (1994);
481. cf. Surface Mining Control Reclamation Act, 30 U.S.C. § 1300 (1994) (affording special treatment to Indian lands).
482. See Indian Land Consolidation Act, 25 U.S.C. §§ 2201-2211 (1994), and amendments to deal with fractionated ownership of allotments, 25 U.S.C. §§ 372, 373-373b (1994).
483. Congress also passed at least ten major land claims acts, DAVID H. GETCHES, ET AL., FEDERAL INDIAN LAW 231 (4th ed. 1998), and sixteen water rights settlement bills since 1982, id. at 849-50. In addition, tribal control and management of natural resources has been enhanced.
484. See Indian Mineral Development Act of 1982, 25 U.S.C. §§ 2101-2108 (1994);
485. National Indian Forest Resources Management Act, 25 U.S.C. §§ 3101-3120 (1994).
486. E.g., 25 U.S.C. § 1301(4) (1994) (amendment affirmed tribal criminal jurisdiction over nonmember Indians, effectively overriding the Supreme Court decision in Duro v. Reina, 495 U.S. 676 (1990)); 42 U.S.C. §1996(a) (1994) (enacted to deal with the effects of the Smith decision on members of the Native American Church); Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-2000bb-4 (1994) (attempting to override the Supreme Court's rejection of the compelling interest test in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990)) (for additional information see supra notes 320-325 and accompanying text); Public Law No. 101-612, 104 Stat. 3209 (1990) (designating as part of a wilderness area the sacred lands denied protection in Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1980), thereby assuring that the challenged road would not be built) (for additional discussion, see supra notes 326-30 and accompanying text).
487. In March 2000, California voters passed Proposition 1A, a measure supporting tribes' right to conduct reservation gambling. See Flawed Ways to Make Law, L.A. TIMES, March 9, 2000, at B8 (criticizing tribes' successful use of media in the Proposition 1A campaign).
488. See, e.g., John Fredericks III, America's First Nations: The Origins, History and Future of American Indian Sovereignty, 7 J.L. & POL'Y 347, 402-03 (1999).
489. See Pommersheim, Coyote Paradox, supra note 36, at 480.
490. Justices who fully appreciate the traditions of Indian law in our national history and constitutional structure might vote against Indian interests in specific cases. For instance, the traditional rule is that tribal powers exist unless and until Congress clearly abrogates them. Some Justices may find ambiguities where others find none, and the Court may divide over whether particular legislation has spoken unambiguously enough to abrogate tribal powers. See, e.g., United States v. Dion, 476 U.S. 734, 740-45 (1986) (holding that the Eagle Protection Act, though not specific, abrogated a treaty right to take eagles by including a provision allowing permits for ceremonial taking); Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 807-09 (1976) (holding that the McCarran Amendment waiving U.S. sovereign immunity and consenting to state court adjudication of federal water rights extended to tribal water rights, although the act was not specific, because legislative history showed the purpose of the act would not be served without including Indian water rights held in trust for tribes in such adjudications).
491. See Getches, supra note 2, at 1575.