Beyond Indian Law: The Rehnquist Court's Pursuit of States' Rights, Color-Blind Justice and Mainstream Values
Open accessAbstract
Beyond Indian Law : documents the Rehnquist Court’s shift away from jurisprudence that permitted a sovereign people to control their own territory, and the people within it, and toward a ‘subjectivist approach’ that allows the Supreme Court to determine what Indian law ought to be. It places this shift within a broader narrative of the Court deviating from well-established interpretive principles. Getches ultimately critiques the signals the Rehnquist Court has sent in its existing jurisprudence and warns that future cases will see state interests prevail in their control of the reservation, attempts to protect Indians as sovereigns will fail, and that mainstream values will be protected.
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The federal government holds responsibilities to Indian tribes and individual Indians known as the trust relationship.
“The federal government holds responsibilities to Indian tribes and individual Indians known as the trust relationship;”
From Dividing Authority Three Ways: Federal–Tribal–State Relations after<i>Oklahoma v. Castro-Huerta</i> (2023) · cites this paper as Getches 2001
In the 'BEYOND INDIANV LAW' section (page unavailable), the paper describes a 'unique trust relationship between the United States and the Indians'; elsewhere it says terminated tribes lost their trust relationship with the United States. These passages support the relationship's existence, but our copy does not explicitly define it as federal responsibilities to both tribes and individual Indians. (LLM, conf=0.82)
Experimental — accuracy not yet measuredState governments have no authority to regulate Indian affairs absent an express congressional delegation or grant.
“State governments have no authority to regulate Indian affairs absent an express congressional delegation or grant (Cohen 1941;Getches 2001;Newton 2012;Skibine 2005).”
From Dividing Authority Three Ways: Federal–Tribal–State Relations after<i>Oklahoma v. Castro-Huerta</i> (2023) · cites this paper as Getches 2001
In the section labeled “2001]” (page unavailable), Getches says that Indians on a reservation are generally immune from state law, supporting the claim’s general direction. But the same section says that, absent governing acts of Congress, state action concerning non-Indians is assessed for infringement of tribal self-government. It does not make express congressional delegation the sole basis for state authority. (LLM, conf=0.86)
Experimental — accuracy not yet measuredThe Court's decisions have added a layer of inconsistency and unpredictability, making federal Indian law confusing and hard to navigate, especially for judges unfamiliar with Native communities and the history of federal-tribal-state relations.
“The Court's decisions have added a layer of inconsistency and unpredictability, making federal Indian law confusing and hard to navigate, especially for judges, who tend to be unfamiliar with Native communities and the history of”
From Dividing Authority Three Ways: Federal–Tribal–State Relations after<i>Oklahoma v. Castro-Huerta</i> (2023) · cites this paper as Getches 2001, 275
Split into 2 atoms — 1 confirmed, 1 partially supported, 0 disputed, 0 misattributed, 0 unverifiable. Expand the claim to see per-atom verdicts.
Experimental — accuracy not yet measuredLaw enforcement officials and victims already struggle to understand and apply complicated jurisdictional rules in Indian Country.
“Law enforcement officials and victims already struggle to understand and apply complicated jurisdictional rules in Indian Country (Amnesty International 2006;Getches 2001, 277-278).”
From Dividing Authority Three Ways: Federal–Tribal–State Relations after<i>Oklahoma v. Castro-Huerta</i> (2023) · cites this paper as Getches 2001, 277-278
In “Beyond Indian Law” (page not provided), Getches describes jurisdictional decisions as difficult for tribal and county officials and property owners to apply, and says the field has been complex. The passages do not establish that law enforcement officials or victims struggle to understand and apply those rules. (LLM, conf=0.83)
Experimental — accuracy not yet measuredTribes are governments with inherent sovereign powers, not delegated or granted by the United States.
“Tribes are governments with inherent sovereign powers, not delegated or granted by the United States;”
From Dividing Authority Three Ways: Federal–Tribal–State Relations after<i>Oklahoma v. Castro-Huerta</i> (2023) · cites this paper as Getches 2001
The U.S. Constitution gives Congress full control over Indian affairs, including authority to limit tribal powers.
“The U.S. Constitution gives Congress full control over Indian affairs-including authority to limit tribal powers;”
From Dividing Authority Three Ways: Federal–Tribal–State Relations after<i>Oklahoma v. Castro-Huerta</i> (2023) · cites this paper as Getches 2001
Indian Nations retain powers unless Congress has expressed clear and plain intent to abrogate them.
“Indian Nations retain powers unless Congress has expressed clear and plain intent to abrogate them; and”
From Dividing Authority Three Ways: Federal–Tribal–State Relations after<i>Oklahoma v. Castro-Huerta</i> (2023) · cites this paper as Getches 2001
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- U.S. 557 (1995); Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992). 287. New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 330-31 (1983). 288. Nevada v. Hicks, 121 S. Ct. 2304, 2316 (2001) (emphasis added). 289. Id. at 2310 n.3. 290. Montana v. United States, 450 U.S. at 566. 291. Hicks, 121 S. Ct. at 2316. 292. Id. at 2320 (quoting Montana v. United States, 450 U.S. at 564-65). 355. 450 U.S. at 564-67. 356. See id. at 565; supra notes 269-82 and accompanying text. 357. Strate, 520 U.S. at 442-43. 358. Id. at 457. 359. Id. at 446 (quoting Montana v. United States, 450 U.S. at 565-66). 360. Id. at 457-58. 361. Id. at 458; see also Atkinson Trading Co. v. Shirley, 121 S. Ct. 1825, 1829 (2001) (refusing to apply either Montana exception to allow a tribal tax on guests at a reservation hotel on an isolated parcel of non-Indian land that received tribal governmental services). 362. See Amoco Prod. Co. v. S. Ute Indian Tribe, 526 U.S. 865 (1999); Mon- tana v. Crow Tribe of Indians, 523 U.S. 696 (1998). 363. Crow Tribe, 523 U.S. at 713. 364. Amoco, 526 U.S. at 871-72. 365. Crow Tribe, 523 U.S. at 715-19. 366. Amoco, 526 U.S. at 880. 367. 523 U.S. at 702. 368. See id. at 706 (citing Crow Tribe of Indians v. Montana, 819 F.2d 895 (9th Cir. 1987)). 369. See id. at 702. 370. See id. at 716. 371. 526 U.S. at 877-80. 372. See id. at 870. 373. See id. at 868. 374. See id. at 876. 375. Federal Respondents' Brief at 5-6, Amoco (No. 98-830). 376. 526 U.S. at 874-75. 2001] 2001] 413. E.g., 25 U.S.C. § 1301(4) (1994) (amendment affirmed tribal criminal jurisdiction over nonmember Indians, effectively overriding the Supreme Court decision in Duro v. Reina, 495 U.S. 676 (1990));
- Make Law, L.A. TIMES, March 9, 2000, at B8 (criticizing tribes' successful use of media in the Proposition 1A campaign). 415. See, e.g., John Fredericks III, America's First Nations: The Origins, History and Future of American Indian Sovereignty, 7 J.L. & POLY 347, 402- 03 (1999). [Vol. 86:267
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Dividing Authority Three Ways: Federal–Tribal–State Relations after<i>Oklahoma v. Castro-Huerta</i>
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- Authors
- Getches, D. H.
- Corresponding author
- Getches, David H.
- Venue
- Reading American Indian Law
- Publisher
- Cambridge University Press
- Published
- 2019-12-12
- Volume
- 86
- Issue
- 2
- Pages
- 164-187
- ISSN
- 0026-5535 (ISSN-L)
- OpenAlex
- W2677527817
- Cited by
- 12
- References
- 0
- Citations by year
- 2023: 1 · 2020: 1 · 2019: 1 · 2018: 1 · 2016: 1 · 2015: 1
- FWCI
- 0.00
- Type
- journal article
- Language
- en
- Open access
- hybrid
- doi.org
- Licence
- public-domain
- www.cambridge.org/core/terms (unspecified)
- Locations
- Minnesota law review (publishedVersion, public-domain)
- Cambridge University Press eBooks (publishedVersion)
- Colorado Law Scholarly Commons (University of Colorado Colorado Springs) (submittedVersion)
- bepress Legal Repository (submittedVersion)
- Digital Collections of Colorado (Colorado State University) (submittedVersion)
- Topics
- Social Sciences › Law › Indigenous Peoples' Rights and Law
- Social Sciences › Law › Judicial and Constitutional Studies
- Social Sciences › Political Science and International Relations › American Constitutional Law and Politics
- Keywords
- Indian law, Rehnquist Court, Supreme Court case law, tribal sovereignty, state interests, mainstream values, constitutional interpretation, tribal self-governance
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