Back to the Future: Native American Sovereignty In the 21st Century


Over one hundred years ago, Austin Abbott, a prominent New York lawyer, wrote that “[t]he American student could select few single subjects the survey of which would bring under view a greater variety of important general principles… than the law relating to Indians.”‘ Abbott’s statement remains true, for no area of American law is more distinct, anomalous, or confused than that relating to Native Americans.’ The Supreme Court each year decides a disproportionate number of cases relating to Native American sovereignty, land, water, taxes, jurisdiction, regulation, religion, and a host of other issues, and in so doing, it weaves, along with Congress and numerous federal agencies, a “patchwork quilt” of case law, statutes, and regulations resembling more a “checkerboard” than a “seamless web.” The reasons for this are many, including the United States’ historically vacillating policies toward Indians, the “closing” of the “frontier,” and the impact of the New Deal’ and the Civil Rights Movement, but the fundamental reason for the chaos that is American Indian Law is that the law has been made to serve ends incompatible with its original founding principle.

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