Federal Indian law is dynamic, and though few outside the field acknowledge it, cutting edge. In the last few decades, coinciding with the rise of Indian gaming, Indian tribes, individual Indians, and Indian-owned businesses have acted far beyond the direction of statutes and agency promulgations. Indians and Indian tribes are too energetic and resourceful to wait for Congress or the agencies to make policy decisions. Federal Indian law and policy is no longer driven by Congress, the bureaucracy, or even the states. Indian tribes lead the way and the rest have to catch up. It appears that Congress and the Executive Branch may never catch up, having already adopted a reactionary approach to deal with Indian issues by relying more on case-specific legislation and claims adjudication in the administrative courts. Now that Indian actors lead the way, there may never be another time when Congress or the President makes broad, sweeping changes to federal Indian policy.
As an institution, federal courts are reactionary. They cannot decide an issue without a party bringing suit in the first instance. And, though it is the Court's job to interpret the Constitution, in the Indian cases the Court has little or no constitutional text to interpret. Indian tribes in recent decades have outpaced the law in many ways. Through their commitment to tribal self-determination, Congress and the Executive have opened the door--and tribes have finally sprinted through. Each tribe is a laboratory for self-determination, business ideas, and intergovernmental relations. As a result, the federal courts have had fewer and fewer authorities to rely on to decide disputes, opening the door for the Supreme Court to exercise additional latitude in deciding Indian cases according to its own preferences. The anchor preventing the Court from taking the law into its own hands--the decades of federal law and policy dictating to tribes how to civilize themselves--has begun to rust away.
And yet it is a dangerous time for Indian tribes.
Matthew L. M. Fletcher,
The Supreme Court and Federal Indian Policy,
85 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol85/iss1/5