Abstract

The U.S. Supreme Court has revived century-old rhetoric that frames Tribal sovereignty as vanishing. The logic in this reasoning is often cloaked behind concerns for states’ equal footing and interests. But once the veneer is removed, the Court’s reliance upon what I term the “vanishing Tribe trope” reveals a lawless foundation and ultimately harms the legal principles of sovereignty it purports to enforce.

Like nation–state sovereignty, Tribal sovereignty is rooted in international norms reflecting the self-determination rights of peoples to territorial integrity, political unity, and freedom from intervention. International legal norms recognize dominant–dependent sovereign relations, like those between the U.S. federal government and Tribes, as negotiated power imbalances between sovereigns that nevertheless preserve each sovereign’s respective sovereignty and thereby preserve sovereignty broadly. While, Tribal sovereignty has long been a volatile legal doctrine, federal Indian law’s international roots are nevertheless reflected in the federal Indian legal principle that Tribal self-government should be preserved unless Congress clearly expresses otherwise.

Such legal principles, however, are seemingly only as durable as the value courts place on Tribes. In the late nineteenth century, despite the fortitude of sovereignty terminology, courts often dismissed Tribal sovereignty because they perceived Tribes as vanishing. Tribes would soon be gone, so the thinking went, and so courts need only give passing concern to threats to Tribal sovereignty, as those threats would soon be moot. In short, Tribal sovereignty was “temporary and precarious.” But Tribes did not vanish. Rather, Tribes are thriving, and their sovereignty is now framed in their perpetual rights to self-determination. So why did the U.S. Supreme Court hold in Oklahoma v. Castro-Huerta that Tribal sovereignty had once again been implicitly divested? In citing historically fraught, late-nineteenth-century cases, the Court has revived antiquated views of Tribes as inferior and inevitably vanishing. Tribes’ vanishing status permits the Court to abandon judicial restraint and condone unauthorized intrusions into Tribal sovereignty. In Castro-Huerta, the Court was disturbingly out-of-step with contemporary understandings of Tribal sovereignty; the majority’s decision threatens the legal foundations on which Tribes may rely in planning for a future.

To anticipate a future that includes Tribes necessitates contending with the Court’s renewed embrace of the vanishing Tribe legal doctrine, which envisions a Tribe-less future. Castro-Huerta envisions the Tribal–federal sovereign-to-sovereign framework as crumbling pillars limply bracing a precarious and temporary Tribal sovereignty. Anticipating Tribal futures requires dismissing these crumbling pillars and contending not just with the vanishing Tribe trope, but also with the need to build an entirely new sovereign-to-sovereign framework.

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