Philip P. Frickey,
(Native) American Exceptionalism in Federal Public Law, 119
Harv. L. Rev.
Available at: http://scholarship.law.berkeley.edu/facpubs/1842
In this Article, Professor Philip Frickey argues that in federal Indian law, the rule of law serves remarkably divergent purposes, justifying colonialism in the pursuit of constitutionalism. Because of its roots in this antinomy, federal Indian law has been remarkably incoherent. The Supreme Court has been increasingly troubled by not only the incoherence inside the field, but also the extent to which its doctrines deviate from general principles of American law. In fact, frustration with the intractability of the issues has recently led several Justices to propose that the Court should have not only the first say on sensitive issues, but the final say as well. These proposals trigger "the seduction of coherence," the lawyerly urge to ameliorate inconsistent policy implications. Professor Frickey contends that these questions cannot be resolved without recognition of the exceptionalism of federal Indian law. The solution is to recognize the "courage of our confusions" rather than embrace the alternative -- some smaller certainty that imposes artificial coherence at the expense of the exceptional doctrinal, institutional, and normative features of the field. Professor Frickey concludes that the Supreme Court is the institution least able to generate a satisfactory, dialogic integration of our colonial roots with our constitutional framework and thus needs to stand aside.