Document Type
Article
Publication Date
4-10-2017
Abstract
Since first described by Chief Justice John Marshall, the United States has been deemed to have a moral and legal “trust responsibility” to the American Indian tribal nations that gave way so that the United States could exist. For nearly two centuries, the trust responsibility reflected a paternalistic view toward Indian tribes. As the United States has developed a more enlightened policy characterized by greater respect for “tribal self-governance,” tribal governments have experienced a renaissance. Federal policy has moved away from federal control and toward tribal empowerment. As a result, the trust responsibility’s paternalistic features have come to seem anachronistic, and the trust responsibility can be described today by a new set of norms. The evolution, however, is not complete. Some of the old paternalistic features continue to animate federal Indian law and serve as obstacles to tribal self-governance. Moreover, as tribal governments exercise greater powers, they are subject to new scrutiny. Perhaps ironically, even some Native Americans have sought to reinstate federal oversight of tribal nations. The shifting norms of federal policy have produced new conflicts and will require a new reckoning about the federal role as old norms clash with new.
Publisher
Harvard Law Review
Publication Title
Harvard Law Review Forum
Volume
130
First Page
200
Recommended Citation
Kevin Washburn,
What the Future Holds: The Changing Landscape of Federal Indian Policy,
130
Harvard Law Review Forum
200
(2017).
Available at:
https://digitalrepository.unm.edu/law_facultyscholarship/411
Comments
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