Indigenous Policy Journal
| John Harlan Vinzant |
| Dept. of Political Science, Southern Illinois University Carbondale |
| July, 2006 |
Abstract |
| Since the 1820's, the United States Supreme Court has been influential in crafting the doctrines that shaped federal American Indian policy. Over two centuries of American Indian policy and history, three major themes stand out. One, federal policy towards Indians has changed in five distinctive time periods. Two, tribes have witnessed a decline in sovereign powers. Three, the judiciary has had a huge impact and growing influence in these changes. The strong presence of courts in the policymaking process involving Indian affairs offers a case study of interpretation and judicial policymaking. In this qualitative dissertation, I focus on how judicial policymaking can be restrained. To do so, I analyze and explain the development of two areas of federal Indian policy: tribal legal and political protections from individual state power and the creation of the federal trust responsibility between the federal government and tribes. I assess where the Court has involved themselves in policymaking and how they were able to be effective. I define effectiveness as the ability to specify alternatives and consequences in such a way that other actors will be bound by a decision and the court can continue to be authoritative in future decisions on a policy. I identify the Supreme Court as a strong and effective policymaker in the areas of the trust responsibility and crafting political/legal protections. I then propose three factors that have determined its effectiveness. The three factors are: the presence of competing state/tribal interests; federal mandates or policy actions; and established precedents, legal language, or norms. I conclude that Congressional specificity is the dominant factor to restrain the policymaking role of the Court. Chapter 2 briefly traces the federal development of Indian policy. Chapters 3 and 4 explain the seminal Court cases from McIntosh v. Johnson (1823) to Lone Wolf v. Hitchcock (1906). Chapter 5 discusses the early creation of the Indian trust relationship or responsibility from the 1820's to the 1940's. Covering the modern cases since the 1950's, Chapters 6 through 8 explain how the Court has been able to interpret vague Congressional language to craft legal doctrine that significantly changed the nature of tribal sovereignty and state power. Chapter 9 concludes. |