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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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