Philip P. Frickey,
Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78
Cal. L. Rev.
Available at: http://scholarship.law.berkeley.edu/facpubs/1835
Federal' Indian law is a little understood, almost mysterious corner of public law. One major reason is that the Supreme Court has accorded Congress plenary power over Indian affairs. Taken to its logical conclusion, this doctrine would require the Court to follow congressional intent in deciding Indian law cases. The author demonstrates, however, that in a variety of important cases, the Court has subordinated original congressional intent in favor of more dynamic interpretation. Several eclectic factors explain these eases individually, but the factors are so deeply divisive that they cannot be aggregated into any general, descriptive theory of federal Indian law. This incoherence is in stark contrast to the conventional scholarly approach, which posits that the field is governed by foundationalist, deductive theory. Rejecting foundationalism, the author suggests an antiformalist alternative based on practical reasoning in law, which would stress a more inductive process based on context, traditions, and reasoning from paradigmatic cases. Practical reasoning not only better describes what the Court has done, but it is a normatively more attractive method of addressing the contemporary consequences of colonization. It could be a powerful tool not simply of demystification, but also of reconstruction.