At the Crossroads: A New and Unfortunate Paradigm of Tribal Sovereignty (Part 1‪)‬

This is the first in a series of three articles by Professor Frank Pommersheim to be published in the South Dakota Law Review. The second article will be forthcoming in Issue I, Vol. 56 (Fall 2010) and it is entitled Amicus Briefs in Indian Law: The Case of Plains Commerce Bank v. Long Family Land and Cattle, Co., Inc. The final article in the trilogy is The Crazy Horse Malt Liquor Case: From Modernity to Tradition and Halfway Back and will be published in Issue 2, Vol. 56 (Spring 2011). While it is routine to describe the current policy period in Indian affairs as meaningful self-determination, (1) this description is rapidly unraveling and has been for some time. This unraveling suggests the need for reassessment and reconsideration in light of over a century of shifting federal policy, which has often occurred without motive or fanfare. (2) Such reassessment reveals the emergence of a new paradigm of tribal sovereignty, which is rooted in a significant shift in the Indian law jurisprudence of the Supreme Court, as well as a corresponding change in the current use of sovereignty by tribes in the exercise of their powers of self-governance. Applications of the core analytical and policy concerns of this new model are corroding the essential elements of the historical powers of tribal self-governance.