The New Federal Indian Law

Matthew L.M. Fletcher, Michigan State University College of Law

Abstract

While many scholars suggest that the Court’s conservative views drive these Indian law decisions and criticize the Court for failing to follow foundational principles of federal Indian law, in this article I hope to show that the Court’s reasons for granting certiorari and for deciding against tribal interests in these cases are not Indian law-related. Instead, the Court identifies important, unrelated constitutional concerns that appear to arise more frequently in Indian law cases, decides those matters, and only then turns to the federal Indian law questions. Once the Court disposes of the important constitutional concern in its analysis, the Court’s federal Indian law analysis is secondary and often driven by pragmatism. I conclude by arguing that advocates for tribal interests must locate an important constitutional concern or a significant pragmatic consideration that will drive the Court’s analysis before they will turn around the win-loss ratio.