We’re down to the final eight. Here are the match-ups:
(1) Worcester v. Georgia versus (9) Menominee Tribe of Indians v. United States
Menominee Tribe has made an amazing Cinderella run, and remains one of my personal favorites, despite its peculiar drafting by the quick and dirty pen of Justice Douglas. How can Menominee get past Worcester? Well, I think there’s an argument. Worcester is foundational, to be sure, but almost archaic. The Supreme Court in the early 1970s called it “platonic.” It’s been supplanted by modern cases, the ones starting in 1978 or so. No one cites it anymore. But then again, no one cites Menominee either.
(20) Merrion v. Jicarilla Apache Tribe versus (12) Morton v. Mancari
I think Merrion is the stronger precedent, but Mancari has the emotional backing. This will be a toughie. Both have eliminated older precedents, and so their resilience cannot be questioned (actually, it can, and I question Mancari‘s resilience). Good match-up.
(3) Ex parte Kan-Gi-Shun-Ca (Crow Dog) versus (6) Winters v. United States
Two of the oldest remaining cases left, slugging it out. Water rights versus … what does Crow Dog stand for again?
(15) United States v. Wheeler versus (7) Williams v. Lee
Williams has been a wrecking ball through this tournament, already eliminating Cabazon Band and Solem. Wheeler is tough, though, too. However, it hasn’t faced the same competition (Bracker and The Kansas Indians).
what exactly does the “platonic” part mean anyway.
It’s from McClanahan:
Finally, the trend has been away from the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward reliance on federal preemption. See Mescalero Apache Tribe v. Jones, ante, p. 411 U. S. 145. The modern cases thus tend to avoid reliance on platonic notions of Indian sovereignty and to look instead to the applicable treaties and statutes which define the limits of state power. Compare, e.g., United States v. Kagama, 118 U. S. 375 (1886), with Kennerly v. District Court, 400 U. S. 423 (1971).
Platonic, there, probably means something like theoretical, but I think colored by Plato’s theory of the forms–tribal sovereignty in actuality is an imperfect (and probably, in the Court’s view, problematic) version of the ideal of sovereignty.