Diane P. Wood, Indian Sovereignty in Context, 2022 Wis. L. Rev. 211 (2022).
Abstract
Almost 200 years ago, in the Cherokee Nation cases, Chief Justice John Marshall famously described Indian tribes as “domestic dependent nations.” It’s a catchy phrase, but it falls far short of a clear description of the complex relationship between the Indian tribes, bands, nations, and similar groups in the territory encompassed by the United States and the government of that territory. It also elides the equally complex issue of the relationship between Indian tribes and the constituent states of the United States. In the end, the problem may be that modern notions of self- determination, integrity of national boundaries, and conquest simply do not map well onto the history of our part of the North American continent from the late fifteenth century to the present. The best we can do is to articulate rules, canons of interpretation, and principles from the law that has developed in the hope of clarifying and settling the law we now have.
No one could have undertaken that task with more sensitivity, expertise, and objectivity than the Reporters of the American Law Institute’s soon-to-be-published Restatement of the Law of American Indians—Professors Matthew L.M. Fletcher and Wenona T. Singel and Attorney Kaighn Smith, Jr. Indeed, this may have been one of the most challenging Restatements the ALI has ever undertaken. Most of the time, the common law (or interstitial law relating to a statute) has developed organically in the state and federal courts, and the job of the Reporters is to distill the rules that have emerged. This isn’t always easy, of course: sometimes no single rule floats to the top of the barrel, and so the Reporters must choose the one that seems best to represent the state of the law. Sometimes (though less often) the Reporters propose that the ALI adopt a minority position that is better reasoned or that seems to capture a trend of thinking.
