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2018

Indian and Aboriginal Law

SJ Quinney College of Law, University of Utah

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Full-Text Articles in Law

From Foundational Law To Limiting Principles In Federal Indian Law, Alexander Tallchief Skibine Nov 2018

From Foundational Law To Limiting Principles In Federal Indian Law, Alexander Tallchief Skibine

Utah Law Faculty Scholarship

In this Article, I am arguing that one of the reasons animating the Court’s move away from Justice Marshall’s exceptionalism is its fear that under traditional foundational principles of federal Indian law, Indian tribes may gain what the court subjectively perceives to be “unfair” advantages over non-Indians. Therefore, the Court has been looking for limiting principles tending to achieve level playing fields between tribal and non-tribal actors. This Article also argues, however, that while looking for a level playing field may sound like a worthwhile goal, there are many pitfalls involved in this process that may end up ...