Wampum

Leaving it to the judiciary doesn't mean what it seems to.

In the first instance, the "judiciary" has to work in the shadow of Wild Bill Rehnquist. He's dead, but none of his opinions have been overturned, and none are likely to be overturned by the current court.

In the second instance, the SCOTUS just makes stuff up. There were no sales or leases of land before Marshall. No drunken non-Indian ever pushed a Tribal Peace Officer before Oliphant.

In the third instance, the win-loss ratio for Federal Indian Law bar is worse than the win-loss ratio for the criminal defense bar.

But that's all obvious.

Leaving it to the judiciary means that our participation in party politics is over, that our relationship with the Democratic and Republican political coalitions that dominate electoral politics is without effect. That the locus of control over policy that directly effects Tribal Governments moves from the political to the administrative, to the Bureau within the Department within the Administration.

By 1871 the House of Representatives had grown tired of living with the results of Federal Indian policies carried out by the Senate and President through their treaty making authority. Their remedy was the Appropriation Act of March 3, 1871, Ch. 120 §1, 16 Stat. 544, 566 (codified at 25 U.S.C. §71), which ended the Treaty Period.

All it takes for the present to become the past, to acquire a name like the "Legislative Period", is leaving it to the judiciary. And like Aboriginal Treaty Right in Canada with the Smokehouse line of cases -- R v Sparrow, R v Van der Peet, R v Gladstone, and R v Delgamuukw -- Federal Indian Law will become static, incapable of being changed, by Indians or non-Indians, just "reinterpreted" by each Administration's Department, and by each Department's Bureau, and by each Bureau's Agency.

No Duro Fix. Just Duro.

No politics. Just process. It will have to wait until tomorrow, but I have to explain to my mom why voting Indian in this cycle is complicated.