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119 Harv. L. Rev. F. 1 (2005-2006)

handle is hein.journals/forharoc119 and id is 1 raw text is: REPLY DOUBLE BIND: INDIAN NATIONS v. THE SUPREME COURT Joseph William Singer* Replying to Philip P. Frickey, (Native) American Exceptionalism in Fed- eral Public Law, 119 HARV. L. REV. 431 (2005). [The Indians'] right of occupancy is considered as sacred as the fee simple of the whites. - Justice Henry Baldwin, Mitchel v. United States (1835)1 Ignoring [two bedrock] principles [of federal Indian law], the Court has done what only Congress may do - it has effectively proclaimed a dimin- ishment of the Tribe's reservation and an abrogation of its elemental right to tax immunity. Under our precedents, whether it is wise policy to honor the Tribe's tax immunity is a question for Congress, not this Court, to de- cide. - Justice John Paul Stevens, City of Sherrill v. Oneida Indian Nation (2005)2 American Indian nations find themselves in a double bind. If they fail to exercise their retained sovereign powers, the Supreme Court leaves them alone, but in so doing they rob themselves of the ability to govern themselves, promote the well-being of their people, nurture economic development, preserve their cultures, and connect with the sacred.3 If they exercise their sovereign powers and begin to achieve these long-sought goals, the Supreme Court reins them in, worried * Professor of Law, Harvard Law School. Thanks and affection go to Martha Minow and Phil Frickey. 1 34 U.S. (9 Pet.) 711, 746 (1835). 2 125 S. Ct. 1478, 1496 (2005) (Stevens, J., dissenting). 3 See Joseph P. Kalt & Joseph William Singer, Myths and Realities of Tribal Sovereignty: The Law and Economics of Indian Self-Rule 1-2 (Native Nations Inst. for Leadership, Mgmt., & Pol- icy and The Harvard Project on Am. Indian Econ. Dev., Paper No. 3, 2004), available at http://www.jopna.net/pubs/JOPNAo6_MythsandRealities.pdf (explaining that the de facto exer- cise of tribal sovereignty has been the only successful economic development program for Indian nations). I

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