Hastings Law Journal


This Article asserts a new theory about why and how the Supreme Court accepts and decides its Indian law docket: the Court identifies an important constitutional concern embedded in a petition for certiorari, grants certiorari, and then applies its decision- making discretion to decide the "important" constitutional concern. Once that portion of the Indian law case is decided, the Court decides any remaining federal Indian law questions in order to reach a result consistent with its decision on the important constitutional concern. Indian law disputes are often mere vessels for the Court to tackle larger questions; often these questions have little to do with federal Indian law. And, since Indian law is not as grounded in the Constitution as the other questions, it is more malleable, prone to inconsistencies and unpredictability.

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