Kevin J. Worthen,
Shedding New Light on an Old Debate: A Federal Indian Law Perspective on Congressional Authority to Limit Federal Question Jurisdiction,
75 Minn. L. Rev.,
Available at: http://digitalcommons.law.byu.edu/faculty_scholarship/253
Indian Civil Rights Act, federal jurisdiction, Native American law, federal review, supremacy clause, courts, Santa Clara Pueblo v. Martinez (1978)
Examining the ongoing debate concerning congressional power to eliminate federal court jurisdiction over cases arising under federal law from thefederal Indian law viewpoint allows consideration of the issues in a concrete setting. Experience under the Indian Civil Rights Act during the last twenty years indicates that some federal review of actions arising under federal law is needed if the command of the supremacy clause is to be fully effectuated. At the same time, it indicates that a uniform interpretation of that federal law is not essential to the enforcement of the clause. This examination thus provides support for the distributive authority theory, which postulates that Congress is required to vest some federal court with theauthority to review all cases arising under federal law.
Application of the various theories to the ICRA also reveals serious constitutional concerns about the current enforcement scheme for civil ICRA claims. Although the Santa Clara Pueblo Court may have correctly interpreted Congress's intent in concluding that the ICRA prohibits federal court review, theproblems such a scheme raises arguably transcend congressional power, reaching the level of a constitutional violation.
Minn. L. Rev.