Kevin J. Worthen, 𝘚𝘩𝘦𝘥𝘥𝘪𝘯𝘨 𝘕𝘦𝘸 𝘓𝘪𝘨𝘩𝘵 𝘰𝘯 𝘢𝘯 𝘖𝘭𝘥 𝘋𝘦𝘣𝘢𝘵𝘦: 𝘈 𝘍𝘦𝘥𝘦𝘳𝘢𝘭 𝘐𝘯𝘥𝘪𝘢𝘯 𝘓𝘢𝘸 𝘗𝘦𝘳𝘴𝘱𝘦𝘤𝘵𝘪𝘷𝘦 𝘰𝘯 𝘊𝘰𝘯𝘨𝘳𝘦𝘴𝘴𝘪𝘰𝘯𝘢𝘭 𝘈𝘶𝘵𝘩𝘰𝘳𝘪𝘵𝘺 𝘵𝘰 𝘓𝘪𝘮𝘪𝘵 𝘍𝘦𝘥𝘦𝘳𝘢𝘭 𝘘𝘶𝘦𝘴𝘵𝘪𝘰𝘯 𝘑𝘶𝘳𝘪𝘴𝘥𝘪𝘤𝘵𝘪𝘰𝘯, 75 Mɪɴɴ. L. Rᴇᴠ., 65 (1990).
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.
Minnesota Law Review