Federal Indian law is often branded opaque, yet its basic principles are straightforward. Federal authority predominates in Indian affairs, preempting state law, tribal nations are sovereign governments, ambiguous treaties and statutes must be read to favor tribal interests, and congressional actions tied to that responsibility are constitutional. Still, the United States Supreme Court and advocates routinely portray the doctrine as unsettled and even at odds with the Constitution.
Justices have voiced that unease in prominent cases. Justice Clarence Thomas has criticized precedent as confused, including in a dispute over Congress’ power to restore or reaffirm tribal authority to prosecute nonmember Indians. During arguments over the Indian Child Welfare Act, Justices Samuel Alito and Brett Kavanaugh called the equal protection issues difficult, and Kavanaugh later wrote separately to invite future challenges. Even the federal government’s lawyer, defending the statute, acknowledged that some hypotheticals were hard to justify.
Despite such complaints, the court has seldom invalidated federal Indian affairs statutes. Only two have fallen. In 1911, Muskrat v. United States rejected a law that effectively asked the judiciary for an advisory opinion by allowing Cherokee citizens to challenge legislation that might affect them. Decades later, the court twice struck provisions permitting uncompensated confiscation of small property interests in Indian lands, first against the Interior Department and later against tribal governments, in Hodel v. Irving and Babbitt v. Youpee.
Observers often sort the confusion into three areas.
Federal Indian law and Congress
Congress takes the lead in Indian affairs under the Indian commerce clause and the treaty power. Across U.S. history, federal policy has swung between two poles.
From the founding era through the mid-20th century, lawmakers frequently pursued the erosion of tribal governance and landholdings, at times directly, such as during the Removal Era and the Termination Era, and at other times indirectly, as during the Allotment and Assimilation period that imposed pressures intended to dilute tribal lands and authority. Beginning in the 1970s, Congress moved in the opposite direction, ushering in the Self-Determination Era that has largely supported tribal sovereignty for the past half-century.
Justice Thomas has labeled the overall policy trajectory schizophrenic, pointing to vacillations that, in his view, yield inconsistent precedents. Some of these shifts have intersected with debates over how foreign affairs shaped presidential executive power, further complicating the separation of powers in this area.
Federal Indian law jurisprudence
Jurisprudence is the second source of uncertainty. The court has complained that its cases sustain broad congressional power without clearly defining its basis or limits, as noted in Haaland v. Brackeen.
The tension is not new. In United States v. Kagama in 1886, the court called the relationship between tribes and the federal government anomalous and complex.
The contradiction was stark in 1978, when Oliphant v. Suquamish Indian Tribe suggested that inherent tribal powers could be stripped by an unspoken assumption among federal, state, and tribal actors without congressional action, while United States v. Wheeler, issued just 16 days later, held that tribal powers persist unless Congress expressly divests them.
Federal Indian law and policy implications
The third area involves the court’s efforts to grapple with policy consequences. Criminal jurisdiction in Indian country has long confounded courts, and Congress has often left the framework complicated.
Tribes and local governments commonly negotiate practical policing arrangements, as recognized in United States v. Cooley. Recently, the court has both flagged jurisdictional complexity as a problem, with the McGirt v. Oklahoma dissent warning about the shift from state to federal criminal authority on the Creek Reservation, and tried to simplify matters by recognizing additional state authority in Oklahoma v. Castro-Huerta.
Critics note that the court lacks the institutional tools to craft durable policy solutions in this field. Some point instead to federal agencies responsible for Indian affairs as better positioned to address long-term governance and enforcement challenges.
Where does this leave the law? Some scholars, including Michelle Bryan and Kekek Stark, have taken up suggestions from Justices Neil Gorsuch and Thomas to revisit precedents born of a colonial atmosphere.
Rolling back the most harmful decisions that clash with modern self-determination could reduce confusion. Yet the judges most vocal about precedent may also question the very concept of tribal sovereignty, which could perpetuate the cycle.
This series will explore how these challenges have been addressed and how the circle might be squared. Future installments are expected to examine key Supreme Court rulings, including those in the modern Supreme Court era, and their implications for tribal governance.
