Lauren van Schilfgaarde on the Continuing Problem of the Vanishing Indian

Lauren van Schilfgaarde on the Continuing Problem of the Vanishing Indian

Lauren van Schilfgaarde has posted “(Un)Vanishing the Tribe,” forthcoming in the Arizona Law Review, on SSRN. Here is the abstract:

The U.S. Supreme Court has revived a century-old rhetoric that frames Tribal sovereignty as vanishing. The logic behind this reasoning is often cloaked behind concerns for states’ equal footing and interests. But once the veneer is removed, the Court’s reliance upon what I term the “vanishing Tribe trope” reveals a lawless foundation, and ultimately harms the legal principles of sovereignty it proports to enforce.

Like nation-state sovereignty, Tribal sovereignty is rooted in international norms reflecting the self-determination rights of peoples to territorial integrity, political unity, and to be free from nonintervention. International legal norms recognize dominant-dependent sovereign relations, like that between the U.S. federal government and Tribes, as negotiated power imbalances between sovereigns that nevertheless preserve their respective sovereignty and thereby preserve sovereignty broadly. Within federal Indian law, Tribal sovereignty has long been a volatile legal doctrine. Nevertheless, federal Indian law’s international roots are reflected in the federal Indian legal principle that Tribal self-government should be persevered unless Congress clearly expresses otherwise.

Such legal principles, however, are only as valuable as courts value Tribes. In the late nineteenth century, despite the fortitude of sovereignty terminology, courts often dismissed Tribal sovereignty because they perceived Tribes as vanishing. Tribes would soon be gone, so the thinking went, and so courts need only give passing concern to threats to Tribal sovereignty as those threats would soon be moot. In short, Tribal sovereignty was “temporary and precarious.” But Tribes did not vanish. Rather, Tribes are thriving, and their sovereignty is now framed in their perpetual rights to self-determination. So why then, did the U.S. Supreme Court in Oklahoma v. Castro-Huerta, hold that Tribal sovereignty had once again been implicitly divested? In citing to historically fraught late nineteenth century cases, the Court has revived antiquated views of Tribes as inferior, and inevitably vanishing. Tribes’ vanishing status permits the Court to abandon judicial restraint and imply unauthorized intrusions into Tribal sovereignty. The Court was disturbingly out-of-step with contemporary understandings of Tribal sovereignty, and consequently threatens any legal foundations on which to rely and plan for a future.

To anticipate a future that includes Tribes necessitates contending with the Court’s new embrace of the vanishing Tribe legal doctrine in Castro-Huerta and its company—doctrine that envisions a Tribe-less future. Castro-Huerta frames the Tribal-federal sovereign-to-sovereign framework as crumbling pillars limply bracing a precarious and temporary Tribal sovereignty. Anticipating Tribal futures must dismiss these crumbling pillars and will require not just contending with the vanishing Tribe trope, but with the need to build an entirely new sovereign-to-sovereign framework.