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Full-Text Articles in Law
Plenary Power, Political Questions, And Sovereignty In Indian Affairs, Michalyn Steele
Plenary Power, Political Questions, And Sovereignty In Indian Affairs, Michalyn Steele
Faculty Scholarship
A generation of Indian law scholars has roundly, and rightly, criticized the Supreme Court’s invocation of the political question doctrine to deprive tribes of meaningful judicial review when Congress has acted to the detriment of tribes. Similarly, many Indian law scholars view the plenary power doctrine — that Congress has expansive, virtually unlimited authority to regulate tribes — as a tool that fosters and formalizes the legal oppression of Indian people by an unchecked Federal government. The way courts have applied these doctrines in tandem has frequently left tribes without meaningful judicial recourse against breaches of the federal trust responsibility …
Religions As Sovereigns: Why Religion Is "Special", Elizabeth Clark
Religions As Sovereigns: Why Religion Is "Special", Elizabeth Clark
Faculty Scholarship
Commentators increasingly challenge religion’s privileged legal status, arguing that it is not “special” or distinct from other associations or philosophical or conscientious claims. I propose that religion is “special” because it functions metaphorically as a legal sovereign, asserting supreme authority over a realm of human life. Under a religion-as-sovereign theory, religious freedom can be understood as at least partial deference to a religious sovereign in a system of shared or overlapping sovereignty. This Article suggests that federalism, which also involves shared sovereignty, can provide a useful heuristic device for examining religious freedom. Specifically, the Article examines a range of federalism …
Two Sides Of The Same Coin: The Potential Normative Power Of American Cities And Indian Tribes, Kevin J. Worthen
Two Sides Of The Same Coin: The Potential Normative Power Of American Cities And Indian Tribes, Kevin J. Worthen
Faculty Scholarship
People do not normally associate cities with Indian reservations. The mental images typically conjured by each term are radically different. Perhaps for that reason, few think of city governments and tribal governments in similar terms.
However, the two forms of government - cities and Indian reservations - have many things in common. Both are excluded from the federal constitutional framework. Both are subject to the plenary power of one of the constitutionally recognized governments - cities to the state government, tribes to the federal government. Both are the most intimate form of government with which most of their residents are …