Alexander Tallchief Skibine has posted “Practical Reasoning and the Application of General Federal Regulatory Laws to Indian Nations” on SSRN.
Here is the abstract:
There are many Federal regulatory laws of general applicability, such as the NLRA, FLSA, ADEA and ADA, that do not specify whether they are applicable to Indian Nations inside Indian reservations. Because the United States Supreme Court has never issued a final ruling on this issue, the federal circuit court of appeals have developed no less than four different approaches to determine whether such regulatory laws should apply to Indian nations. After describing and evaluating the four approaches, this Article recommends applying “Practical Reasoning” to interpret congressional silence concerning application of those laws to Indian nations. Practical Reasoning is a theory of statutory interpretation developed by Professor William Eskridge and the late Professor Philip Frickey. According to these two scholars, “Practical Reasoning” is an “approach that eschews objectivist theories in favor of a mixture of inductive and deductive reasoning seeking contextual justification for the best legal answers among the potential alternatives.” Applying this theory, the Article explains why the approaches developed by the Tenth Circuit as well as in a 1993 opinion authored by Judge Posner for the Seventh Circuit, are more consistent with Practical Reasoning.