Federal Indian law rests on a few straightforward principles, yet federal Indian law is often described by Supreme Court justices as perplexing and even at odds with the Constitution. A new overview sets out the basics and examines why the court continues to express dissatisfaction.
Core rules of federal Indian law
At its foundation, federal law controls Indian affairs and preempts conflicting state law, as reflected in Washington v. Cougar Den. Tribal nations, referred to in the Constitution as Indian tribes, are sovereign governments, affirmed in United States v. Lara.
Courts interpret ambiguous treaty and statutory language to favor tribal interests, consistent with Herrera v. Wyoming. And congressional enactments rationally tied to carrying out that responsibility are constitutional, as held in Morton v. Mancari.
Even with those guideposts, members of the court continue to call the field difficult. In 2004, Justice Clarence Thomas criticized what he called confused precedent in a case about Congress’s authority to restore or reaffirm tribes’ inherent power to prosecute nonmember Indians.
During arguments over the Indian Child Welfare Act, Justices Samuel Alito and Brett Kavanaugh repeatedly labeled certain equal protection questions difficult. Kavanaugh later wrote separately to invite a future challenge to parts of the law.
The federal government’s lawyer, defending the statute, also described some hypotheticals from the bench as hard to defend.
Despite these concerns, the court has invalidated only two statutes governing Indian affairs. In Muskrat v. United States in 1911, the justices rejected a provision that would have allowed Cherokee citizens to bring a case effectively seeking an advisory opinion.
Decades later, the court twice struck down a law that permitted, first the Interior Department and then tribal governments, to seize minimal property interests in Indian lands without compensation, in Hodel v. Irving and Babbitt v. Youpee.
Three buckets of confusion in federal Indian law
Observers often group the ongoing confusion into three categories.
Congress’s shifting policies
Relying on the Indian Commerce Clause and the treaty power, Congress has primary responsibility for Indian affairs. Over time, Congress has moved between opposing policies.
From the founding era through the mid-20th century, federal policy frequently pressed toward diminishing tribal governments and Indigenous landholdings. That took various forms, including the Removal Era in the early to mid-1800s, allotment and assimilation efforts in the late 1800s, and the Termination Era in the mid-1900s.
Beginning in the 1970s, however, Congress embraced tribal self-determination and has generally supported tribal interests since then. Justice Thomas has described these shifts as creating inconsistent precedent and has used the term “schizophrenic” to characterize Indian affairs policy, despite the half-century of relative consistency favoring self-determination.
Jurisprudential inconsistencies
The court has also flagged uncertainty around the source and scope of congressional authority in this field, most recently in Haaland v. Brackeen. As early as 1886, United States v. Kagama called the relationship between tribes and the national government anomalous and complex.
A notable example of conflicting reasoning came in 1978. In Oliphant v. Suquamish Indian Tribe, the court said inherent tribal powers could be stripped based on an unspoken assumption shared by federal, state, and tribal actors, even without an act of Congress.
Just 16 days later, in United States v. Wheeler, the court took the opposite tack, stating that tribes retain inherent powers unless Congress expressly divests them.
Policy consequences and institutional limits
Criminal jurisdiction in Indian country has long posed challenges, and Congress has not comprehensively resolved them, as noted in Washington v. Yakima Indian Nation. In practice, many tribes and local governments negotiate agreements to meet policing needs, a cooperation acknowledged in United States v. Cooley.
Recently, the court’s opinions have both criticized jurisdictional complexity and sought to address it. The dissent in McGirt v. Oklahoma warned about shifting criminal jurisdiction from the state to the federal government on the Creek Reservation.
Later, Oklahoma v. Castro-Huerta recognized broader state authority over crimes in Indian country. These moves come even as the court has acknowledged limits on its institutional capacity to craft policy in this area.
Reconsidering precedent in federal Indian law
Some scholars, including Michelle Bryan and Kekek Stark, have taken up suggestions from Justices Neil Gorsuch and Thomas to revisit precedents shaped by a colonial “atmosphere.” Reexamining and rescinding older decisions that conflict with modern self-determination could clarify much of the doctrine.
Yet the judges most vocal about confusion may also resist the premise of robust tribal sovereignty. That tension suggests the field may remain circular, with doctrine that is both more complicated than necessary and persistently difficult to apply.
Future installments in this series will explore how these issues have been addressed and how they might be resolved. Readers interested in how the Court’s historical reasoning shapes current doctrine can also see A missing citation in the birthright citizenship decision.
For official information on the Supreme Court and its decisions, readers can consult the Supreme Court of the United States. Background on Congress’s constitutional powers is available from the Library of Congress, and federal Indian law resources are maintained by the U.S. Department of the Interior.