Abstract

Excerpted From: Michael Doran, Exceptionalism and Assimilationism in Federal Indian Law, 20 Stanford Journal of Civil Rights & Civil Liberties 267 (November, 2024) (275 Footnotes) (Full Document)

Exceptionalism has been a defining attribute of federal Indian law from the beginning. Unlike any other people in the United States, Indian tribes have a retained, inherent sovereignty; Congress holds a unique plenary power over Indians and Indian tribes; and within tribal lands, states may exercise power over Indians and Indian tribes only as permitted by Congress. Native sovereignty predates the Constitution, and Indian tribes are free of the Constitution's constraints on governmental power, including the Bill of Rights and the Fourteenth Amendment. But Native sovereignty is bounded by the power of the federal government and is subject to congressional limitation or defeasance. Additionally, the federal courts have devised a singular adjudicative approach to the interpretation of statutes and treaties involving Indians and Indian tribes. Perhaps inevitably, all this has produced a body of legal doctrine that is fundamentally different from the rest of American public law.

But exceptionalism faces a competing paradigm. From the start, there has been a strong tendency to assimilate federal Indian law to mainstream public law. At times, the assimilationist paradigm has facilitated the physical dispossession of Native lands and the suppression or eradication of Native institutions, culture, and identity by the political branches of the federal government. Yet even now, after the political branches have renounced further dispossession and colonization in favor of Indian self-determination, the U.S. Supreme Court continues to look to assimilationism as a proper objective for Indian law.

The exceptionalism and assimilationism paradigms have been in fundamental conflict since the three Supreme Court decisions - written by Chief Justice John Marshall and known as the “Marshall Trilogy” - that mark the judiciary's first attempt to locate Indians within U.S. public law. In 1823, Johnson v. McIntosh held that Indians may not alienate their lands to any grantee other than the federal government; in 1831, Cherokee Nation v. Georgia held that tribes are “domestic dependent nations” that cannot invoke the Supreme Court's original jurisdiction under Article III for disputes involving foreign states; and in 1832, Worcester v. Georgia held that the criminal laws of Georgia “have no force” within the lands of the Cherokee Nation. Although Marshall's opinions in these cases leaned hard toward exceptionalism, other members of the Court, particularly in Cherokee Nation and Worcester, laid down assimilationist markers that have influenced subsequent decisions down to the present.

The usual story, advanced by the great Indian law scholars Philip Frickey and David Getches, is that the Supreme Court, having historically treated federal Indian law differently from the rest of U.S. public law, began to turn away from exceptionalism in the 1970s (according to Frickey) or in the 1980s (according to Getches). But in fact the antinomy of exceptionalism and assimilationism has been there all along, and otherwise puzzling decisions from the nineteenth and twentieth centuries become readily understandable when seen as moments when assimilationism was ascendant. Perhaps the assimilationist paradigm has become more salient in recent years, but it has deep roots in the Supreme Court's decisions. Assimilationism is a deliberate effort to integrate Indian law with the rest of U.S. public law; it is not just the product of ignorance or oversight. And the Court's assimilationist decisions cannot be dismissed, as they sometimes are, with the argument that certain justices simply do not understand foundational principles of Indian law.

Although assimilationism is not new, the Court over the last several years has cycled more rapidly between the two paradigms than it did before. Three decisions handed down within a week of each other in June of 2023 illustrate this point. Haaland v. Brackeen, which upheld the constitutionality of the Indian Child Welfare Act of 1978, produced a majority opinion and a concurring opinion that are firmly in the exceptionalist mode but another concurring opinion and two dissenting opinions that are firmly in the assimilationist mode. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin held that the federal Bankruptcy Code abrogates tribal sovereign immunity. The majority option was assimilationist; the dissent was exceptionalist. And the same was true of Arizona v. Navajo Nation, which held that the 1868 treaty establishing the Navajo Reservation does not require the U.S. government to take affirmative steps to secure water for the Navajo Nation. The majority opinion was staunchly assimilationist, and the dissent was just as staunchly exceptionalist.

This article advances three distinct but related claims. First, I argue that federal Indian law has been shaped over the past two centuries by the conflicting paradigms of exceptionalism and assimilationism. By ““exceptionalism,” I mean the normative position that the legal framework for Indians and Indian tribes should be different from the framework for non-Indians, and by “assimilationism,” I mean the normative position that the legal framework for Indians and Indian tribes should be the same as the framework for non-Indians. The conflict between exceptionalism and assimilationism plays out along three dimensions: institutional authority - the determination of which institutions hold governmental power, including juris-generative power, over Indians and Indian tribes; adjudicative method - the determination of how the federal courts should decide legal controversies involving Indians and Indian tribes; and substantive doctrine - the determination of what specific legal rules should apply to Indians and Indian tribes.

To be clear, I use the terms “exceptionalism” and “assimilationism” as attributes of federal Indian law qua law in relation to the rest of U.S. public law. I do not use those terms to describe the purpose or the effects of particular federal Indian law doctrines in promoting the assimilation of Indians and Indian tribes into non-Indian culture or the general American polity. For example, the 1903 decision of the U.S. Supreme Court in Lone Wolf v. Hitchcock, which permitted Congress unilaterally to abrogate Indian treaties and pursue the allotment of Indian lands without tribal consent, unquestionably advanced the broader federal goal of cultural and political assimilation of Indians. But Lone Wolf also established a unique rule within American public law - that federal statutes on matters concerning Indians and Indian tribes were not justiciable by the federal courts (a rule that the Court subsequently repudiated). The exceptionalist-assimilationist dichotomy that I explore in this paper is concerned with the latter aspect of Lone Wolf rather than the former; it concerns the character of federal Indian law as distinct (or not) from the rest of U.S. public law rather than the place of Indians and Indian tribes as distinct (or not) from the rest of the American population.

Second, I argue that the conflict between exceptionalism and assimilationism accounts for much of the supposed incoherence that prominent legal scholars and members of the Supreme Court identify in federal Indian law. The Court has cycled between exceptionalism and assimilationism ever since the Marshall Trilogy; this cycling has been both intergenerational, with the Court in certain eras leaning more toward one paradigm rather than the other, and intra-generational, with the Court leaning one way or the other from term to term and even from case to case within a single term. Despite its cycling between two inconsistent paradigms, the Court generally has been reluctant to overrule its Indian law decisions, and the result is a body of law with internal tensions and inconsistencies, although not outright incoherence.

Third, I argue that the antinomy of exceptionalism and assimilationism derives in large part from two different conceptions of Native sovereignty. The first, autochthonous sovereignty, recognizes that Indian tribes had full sovereignty before the colonization of the New World and that the tribes retain their sovereignty today. The second, heterochthonous sovereignty, maintains that political subjugation by the United States sharply limited or even extinguished the inherent sovereignty of the Indian tribes, making them quasi- or even pseudo-sovereigns. I argue that Indian law exceptionalism generally follows from the autochthonic understanding of Native sovereignty and that Indian law assimilationism generally follows from the heterochthonic understanding of Native sovereignty. Thus, the dichotomy between exceptionalism and assimilationism traces back to the acceptance or rejection of Native sovereignty as independent of federal and state sovereignty.

I develop these arguments as follows. Part I examines the exceptionalism that sometimes has and sometimes has not prevailed within Indian law over the past two centuries. It analyzes exceptionalism in terms of institutional authority, adjudicative method, and substantive doctrine, and it shows how exceptionalism derives from the idea of autochthonous Native sovereignty. Part II examines the other half of the antinomy, the assimilationism that also ebbs and flows within Indian law. It focuses primarily (but not exclusively) on the three Supreme Court decisions from June of 2023 - Brackeen, Lac du Flambeau Band, and Navajo Nation. Part III examines how the conflict between exceptionalism and assimilationism produces doctrinal tensions and inconsistencies within Indian law.

[. . .]

From the start, federal Indian law has struggled with the competing paradigms of exceptionalism and assimilationism. These in turn derive from rival understandings of Native sovereignty - specifically, whether that sovereignty is autochthonous or heterochthonous. Recent Supreme Court decisions demonstrate that the Court itself has been unable to resolve the conflict between the two paradigms and that the continued cycling between them contributes greatly to the doctrinal inconsistencies long evident in federal Indian law.

University of Virginia School of Law.