Turtle Talk: Supreme Court rulings and 'complex' Indian law

Monday, May 2, 2011  

"Much of Indian law is common law “made” by federal judges, and most especially the Supreme Court. As Peter Vicaire’s research demonstrates below, the Court has referred to its own common law as an “intricate web of judicially made Indian law”, but more often as a complex and confusing body of law.

As a general matter, it seems that whenever the Supreme Court is about to announce a change in the federal common law as it relates to Indians and Indian tribes, if it is announcing a restriction on tribal authority, the Court will characterize Indian law as “complex” or “confusing.” Conversely, when the Court is defending or supporting tribal authority, it doesn’t. I’m generalizing here, of course. Often, the Court doesn’t describe its common law (or Congressional policy) this way, or at all. But would anyone describe federal common law as confusing unless they’re about to criticize it (or change it, in the case of a court ruling)? Probably not.

These rhetorical flourishes are useful in understanding how a court (or commentator) is thinking. Tribal advocates, like most commentators, describe Indian law as confusing and complex. Maybe that should stop."

Get the Story:
Commentary on “Confusion” and “Complexity” in Indian Law (Turtle Talk 5/2)