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34 Ariz. St. L.J. 113 (2002)
There Is No Federal Supremacy Clause for Indian Tribes

handle is hein.journals/arzjl34 and id is 123 raw text is: THERE Is No FEDERAL SUPREMACY CLAUSE FOR INDIAN TRIBES Robert N. Clinton* I. INTRODUCTION: THE ORIGINAL BASELINE UNDERSTANDING OF THE TRIBAL(--FEDERAL RELATIONSHIP ........................................... 118 II. DELEGATION AND CONSENT OF THE GOVERNED: AMERICAN CONSTITUTIONAL FIRST PRINCIPLES ON THE LEGITIMACY OF GOVERNMENTAL POW ER ................................................................. 148 III. PLENARY POWER OVER INDIAN AFFAIRS AND THE RISE OF AMERICAN COLONIALISM ................................................. 162 A. Nineteenth Century American Imperialism and the Rise of the Indian Plenary Power Doctrine .................................... 164 B. The Emergence of an Activist Judicial Indian Plenary Power Doctrine from a Judicially Conservative Court .............................. 205 IV. FEDERAL SUPREMACY DOES NOT APPLY TO INDIAN TRIBES ................ 235 V. INDIAN CITIZENSHIP: THE FORMAL RATIONALE THAT FAILS ............... 246 VI. POLISHING THE CHAIN OF FRIENDSHIP BY RECONSIDERING THE LEGAL LEGACY OF AMERICAN COLONIALISM ............................... 252 V II. C ON CLU SION ....................................................................................... 259 Copyright, 2002, Robert N. Clinton. * Barry Goldwater Chair of American Institutions, Arizona State University. B.A., 1968, University of Michigan; J.D., 1971, University of Chicago. The author also serves as the Chief Justice of the Winnebago Supreme Court and as an Associate Justice of the Cheyenne River Sioux Tribal Court of Appeals and the Colorado River Indian Tribal Court of Appeals. He wishes to express his appreciation to Jacki T. Rand, Nacole Heslep, Robert B. Porter, Allie Maldonado and Philip S. Deloria for their helpful comments on earlier drafts of this essay or oral presentations of it. The author also notes with appreciation the helpful research work of his research assistant, Lee Strang, and the staff of the University of Michigan Law Library to the completion of this project. An earlier version of this paper was also presented to the faculty of the University of Michigan Law School and the author wishes to thank the members of the Michigan faculty for their helpful comments on the manuscript. The views expressed in this article, however, are solely the personal views of the author in his scholarly capacity and do not constitute official positions of any of the governments that employ him or of any of the persons who generously provided their comments.

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