Philip P. Frickey,
Adjudication and Its Discontents: Coherence and Conciliation in Federal Indian Law, 110
Harv. L. Rev
Available at: http://scholarship.law.berkeley.edu/facpubs/1920
Federal indian law is rooted in conflicting principles that leave the field in a morass of doctrinal and normative incoherence. In this Commentary, Professor Frickey begins by criticizing two recent efforts to bring coherence to this field. One approach, which narrows the scope of inquiry and attempts to apply non-normative doctrinal analysis, ignores the fictional nature of much federal Indian law doctrine and fails to appreciate the significance of normative and historical principles lurking behind the doctrine. The other approach, which seeks to construct a single descriptive paradigm from the case law, .fails because federal Indian law precedents do not lend themselves to a unified theory. Professor Frickey suggests that greater coherence and respect for basic normative principles are" likely to result from conceiving of the field as involving the process of negotiation among sovereigns rather than of adjudication in federal court.