Amiguity and the Academic: The Dangerous Attraction of Pan-Indian Legal Anaylsis

Ezra Rosser, American University Washington College of Law


Professor Philip Frickey's insightful (Native) American Exceptionalism in Federal Public Law eloquently calls upon the Court to reject the siren of seeming coherence; yet his academic tour de force ironically rests upon the same false synthesis and simplification of the varied tribal experiences into a shared set of digestible legal categories. The underlying conceit of federal Indian law is not found principally in the arrogance of plenary power of one sovereign over another, nor even in the harmonizing inclination of the post-1975 cases. Rather, it can be seen in the choice to treat all tribes as subject to the same pan-Indian legal regime. In this Reply, I draw out the reasons a pan-Indian legal doctrine appeals to both the Court and legal academics and then briefly sketch out what the legal landscape would look like were the Court and academics to take seriously the independent sovereignty of each tribe. Disallowing ourselves the comfort that can be found in the simplicity of treating all tribes interchangeably will lead positively to more ambiguity of the sort Professor Frickey seems to favor and perhaps negatively to greater freedom for the Court to engage in its ad hoc, what feels right decision making. However, regardless of whether the positive or negative effects dominate - and I suspect that the positive effects would control - judicial and academic work that conceptualizes and analyzes tribes independently rightly hedges against the conceit that pan-Indian jurisprudence is appropriate.