Much of Indian law is common law “made” by federal judges, and most especially the Supreme Court. As Peter Vicaire’s research demonstrates below, the Court has referred to its own common law as an “intricate web of judicially made Indian law”, but more often as a complex and confusing body of law.
As a general matter, it seems that whenever the Supreme Court is about to announce a change in the federal common law as it relates to Indians and Indian tribes, if it is announcing a restriction on tribal authority, the Court will characterize Indian law as “complex” or “confusing.” Conversely, when the Court is defending or supporting tribal authority, it doesn’t. I’m generalizing here, of course. Often, the Court doesn’t describe its common law (or Congressional policy) this way, or at all. But would anyone describe federal common law as confusing unless they’re about to criticize it (or change it, in the case of a court ruling)? Probably not.
These rhetorical flourishes are useful in understanding how a court (or commentator) is thinking. Tribal advocates, like most commentators, describe Indian law as confusing and complex. Maybe that should stop. Justice Thomas, for example (see below, numbers 9 and 10), agrees, and would vote to radically alter Indian law to make it less complex (that is, get rid of it altogether, especially the tribal sovereignty part).
This spring, I made an effort to teach my Federal Indian Law students that Indian law is not as complex as it seems. It surely isn’t as complex as Indian law outsiders (bad word, I know) suggest. [Update — Blake Watson wrote about this in 1998 — worth re-reading his excellent paper: 23UDaytonLRev437. We will also link to his excellent “thrust” and “parry” quotations below as Appendix 2.]
That said, if anyone needs a citation for how confusing (and “bizarre,” convoluted, complicated, and any number of other adjectives or descriptors — “idiosyncratic silo of doctrine” is my favorite) Indian law is, see Allan Erbsen, Constitutional Spaces, 95 Minn. L. Rev. 1168, 1253-58 (2011) (pdf here). A few excerpts:
The law governing jurisdiction over Indian territory is a convoluted mess. Confusion arises because tribes retain vestiges of their prior sovereignty, yet operate within a constitutional regime that does not explicitly recognize that sovereignty. Land that is nominally under tribal control is therefore not exclusively under tribal control. Wherever there is nonexclusivity there is concurrence, and wherever there is concurrence there are questions about how to allocate shared authority. Courts and commentators have for centuries noted the vexing problems arising from concurrent jurisdiction between the United States, individual states, and tribes over Indian lands.
***
Indians thus exist within a constitutional gray area—not quite foreign, but not quite domestic. This gray area is tangible because Indians and Tribes occupy physical space. The existence of such space raises questions about who controls it (the Tribes, the states, or the United States) and what can, cannot, or must happen within it. The Constitution does not explicitly answer these questions….
***
Adding a third sovereign (tribes) to the mix further complicates the problem. It was thus inevitable that conflicts would arise between federal, state, and tribal efforts to regulate activity on tribal land, and that courts would need to develop doctrines for resolving competing claims of jurisdiction under a web of statutes and treaties.
***
The result of this predictable complexity is that tribal lands have a bizarre status. Tribes are treated as “domestic dependant nations,” which is a double oxymoron: nations generally are neither domestic nor dependant. Congress has codified this unusual terminology in statutes referring to “Indian country.” The practical meaning of this nation-within-a-nation and country-within-a-country status is uncertain because the land that tribes occupy bears little resemblance to anything in the Constitution’s typology of spaces. Formally, tribal lands lie within states’ territory, although until recently this was unclear and courts often characterized tribal lands as if they were outside the states.
***
[F]uture scholarship should consider whether analogizing Indian lands to other kinds of constitutional spaces can suggest helpful ways of conceptualizing particular doctrinal problems, such as the role of state law on tribal land and tribal law on state land, the preemptive force of federal law, and the content and legitimacy of federal common law. The goal would be to situate Indian law within a broader constitutional landscape rather than to view it solely as an idiosyncratic silo of doctrine.
Appendix (Peter Vicaire’s research on this question):
Turtle Talk 