A crowd watches as the body of the late Justice Antonin Scalia is taken into the U.S. Supreme Court in Washington, D.C., on February 19, 2016. Photo by Indianz.Com

Retired professor Peter d'Errico urges Indian Country to take a closer look at opinions written by Justice Clarence Thomas of the U.S. Supreme Court. His latest includes a critique on the basis of federal Indian law in the otherwise unanimous decision in US v. Bryant, a domestic violence case:

In Bryant, Thomas wrote that the contradiction between "tribal sovereignty" and "plenary power" doctrines "exemplify a central tension within our Indian-law jurisprudence." On one hand, federal Indian law doctrine states "tribes [hold a] status as 'separate sovereigns pre-existing the Constitution.'" On the other hand, a contrary doctrine states "Congress [holds] 'plenary power' over Indian tribes."

Indian Country lawyers have steered clear of responding to Thomas or even acknowledging his critique, despite the fact that cases stretching back to the beginning of federal Indian law in the "Marshall trilogy" bear him out.

It seems to be in bad form to admit that chaos reigns in federal Indian law, although no less an authority than Vine Deloria, Jr., pointed this out long ago in "Of Utmost Good Faith" (1971): The Supreme Court, he wrote, as it creates federal Indian law, "skips along spinning off inconsistencies like a new sun exploding comets as it tips its way out of the dawn of creation."

Justice Thomas seems intent on uprooting the inconsistencies of federal Indian law, but his intent and his goal are not clear. He shows no awareness of the formative premise underlying the contradictions: Christian Discovery Doctrine (more on this in a moment).

Get the Story:
Peter d'Errico: Clarence Thomas Again Critiques Federal Indian Law (Indian Country Today 6/22)

Supreme Court Decision:
US v. Bryant (June 13, 2016)

Supreme Court Documents:
Oral Argument Transcript | Docket Sheet No. 15-420: US v. Bryant | Question Presented

8th Circuit Decisions:
US v Harlan (February 16, 2016)
US v. Cavanaugh (July 6, 2011)

9th Circuit Decisions:
US v. Bryant (July 6, 2015)
US v. Bryant (September 30, 2014)

10th Circuit Decision:
US v. Shavanaux (July 26, 2011)

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