Academic

Krakoff on Frickey on American Indian Law

By Lawrence Solum

Sarah Krakoff (University of Colorado Law School) has posted The Last Indian Raid in Kansas: Context, Colonialism, and Philip P. Frickey's Contributions to American Indian Law (California Law Review, Forthcoming) on SSRN. Here is the abstract:

To many, American Indian law is a remote and anomalous area of the law. To others, including Professor Phil Frickey, themes in American Indian law are central to our identity as a nation, and lessons from the field inform broader understandings of the competencies and limitations of the federal judiciary. One of Professor Frickey?s recurring scholarly arguments is that the federal courts are most within their areas of institutional competence when they approach contemporary Indian law questions as structural disputes between sovereigns, rather than as individual conflicts amenable to the application of mainstream public law values. An event described as the Last Indian Raid in Kansas by some, and the Odyssey of the Northern Cheyenne by others, which touched down in the little town of Oberlin, Kansas, where Phil Frickey grew up, turns out to be all about the centrality of the structural, inter-governmental relationship between tribes and the United States, and the importance of grounded research about the contexts of American Indian law, another theme that Professor Frickey championed in his scholarship. This paper first describes the trajectory of Professor Frickey?s Indian law scholarship, tracking in particular the development of the major themes just described. Next, it delves into the story of Oberlin, Kansas and the Northern Cheyenne Odyssey, a story that cannot be fully comprehended without the contextual backdrop of the United States? unique brand of colonialism and American Indian nation resistance to it. Finally lessons from the Last Indian Raid are applied to a contemporary Indian law issue - the boundaries of tribal control over Indians who are not members of the governing tribe. Telling a thicker story, whether about the Last Indian Raid or this particular Indian law question, may not push federal Indian law in the direction that Professor Frickey and many other scholars would like to see it go, but there is value nonetheless in peeking behind the arid formulations of Indian law that tend to issue from the judiciary in favor of the more complicated reality about the life of Indian law.

Full post as published by Legal Theory Blog on September 04, 2009 (boomark / email).