Is There Any Indian "Law" Left? A Review of the Supreme Court's 1982 Term

Authors

Russel Lawrence Barsh

Abstract

The Supreme Court's decisions have been characterized by an absence of general principles, which the Justices rationalize as the "particularization" of their analysis. The standards that do appear from time to time, such as "balancing interests" and "implied repeal," are merely euphemisms for discretion. There has been no consistent authorship of opinions because the Justices hold little enthusiasm for Indian law cases, and the Court seems to treat each dispute as if it were a matter of first impression. "Generalizations on this subject have become . . . treacherous" as a result of the Court's failure to make and stick to general guiding principles. The Court's 1982 Term, its busiest ever for Indian decisions, was no exception. In the four opinions reviewed in detail here, the Court abandoned any pretense that the scope of tribal sovereignty or the nature of federal "trusteeship" can be determined save on the facts of each case. At the same time, it strengthened the notion that state and national interests, as construed by the Justices, override any rights Indians may yet have.

First Page

863

Recommended Citation

Russel L. Barsh, Is There Any Indian "Law" Left? A Review of the Supreme Court's 1982 Term, 59 Wash. L. Rev. 863 (1984).
Available at: https://digitalcommons.law.uw.edu/wlr/vol59/iss4/7