Sarah Krakoff has published “Law, Violence, and the Neurotic Structure of American Indian Law” in the Wake Forest Law Review (PDF).
An excerpt:
What I want to explore in this Essay is whether there is something about the persistence of American Indian communities and their ability to make their own laws and meanings—their ability to be “jurisgenerative” in the way that only local communities can, according to Cover—that nags at the federal judiciary, that taunts them to try repeatedly to cabin this ungovernable “other.” After more than two and a half centuries of legal (and legalized) violence, American Indian tribes still persist, and they do so in a way that protects an ineffable and unconquerable indigeneity. I wonder whether the disproportionate number of federal judicial decisions (and in particular Supreme Court decisions) devoted to defining, diminishing, cabining, and parsing tribes and their rights and powers is as much a reflection of law’s impotence (the limits of its violence) to erase tribes as it is of its power to destroy. Does judicial anxiety about these limits drive the Court to try, over and over, to extend its interpretive stance into communities decidedly unlikely to act in concert with the Court’s commands? This Essay will probe that question.
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