You can read my paper, “Rebooting Indian Law in the Supreme Court,” on SSRN here.
The paper is an edited version of the 2010 Dillon Lecture delivered at the University of South Dakota School of Law on February 18, 2010, and will be published in the South Dakota Law Review.
Here is the abstract:
This talk, delivered as the 2010 Dillon Lecture at the University of South Dakota School of Law, argues Indian nations and advocates – and the federal judiciary – view Indian law through a reactionary lens, deciding major issues as the cases arise. There are a few mini-movements, long-term strategies on a particular issue, such as the Cobell litigation, the fishing rights cases of the 1960s and 1970s, and perhaps a few others. But even those series of cases could hardly be called a strategic “movement.” As a result of a lack of a viable long-term strategy, I posit that tribal interests are and will continue to be punching bags in Supreme Court litigation.
I offer suggestions on how to reboot federal Indian law in the federal judiciary and the Supreme Court. I will discuss cases or lines of cases that demonstrate how Indian nations can persevere in the Supreme Court, and suggest potential long-term strategies for tribal interests to pursue.
Comments welcome, as this is still a draft.
Turtle Talk 
Bravo Matthew. Few Indian law scholars have the guts to say what we all know about the cases you dissect, and there is little I disagree with in your paper. Vine stressed the need for a Brown-like strategic approach many years ago, but unfortunately that call was ignored. Perhaps with the bleak situation tribes confront given the present make-up of the Court, there might be a more receptive audience for such an idea today.
I do think that your insight about the strategic alignment between tribal and federal interests is an important one, and “critical” to the success of any Indian law case and long-term strategy. As another mentor of mine,Derrick Bell, has tried to tell minority rights advocates for years , “show me the interest convergence!” But of course our Indian law litigation experts and scholars keep telling us Indians aren’t a “racial minority” because the Court and our lawyers have told us so. They are a political classification, and therefore the normal racialized tendencies of a white racial dictatorship’s completely non-Indian Supreme Court don’t apply to tribes, so tribes have nothing to learn from the legacy of Brown. Let’s just stick with Justice Marshall and his early 19th century model of indian rights which more properly characterized tribes as having the same diminished political status and property rights accorded to all savage tribal peoples under the European colonial era’s law of nations.now there’s a winning long-term litigation strategy for the 21st century. Thomas was right when he said Indian law is schizophrenic, but it’s up to us to figure out where the daemonic voices in our heads are coming from, and stop listening to them. Only then will the maddening “laughter” we keep hearing (to borrow from the Court’s daemon-in-chief when it comes to indian law) stop. Perhaps this paper will help begin that much needed therapeutic jurisprudential process. I would say in closing that Indian law doesn’t need to be rebooted, so much as it needs to be exorcised of the daemons at the roots of its dementia. well done!