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  • Print publication year: 2019
  • Online publication date: December 2019

16 - Factbound and Splitless: The Certiorari Process As Barrier to Justice for Indian Tribes

from Part IV - (Mis)Understandings


Factbound and Splitless: recognizes the US Supreme Court’s preeminent role in announcing federal common law that governs the relationship between tribes, states, and the federal government. However, because the Supreme Court only hears cases that can earn four votes for certiorari, the direction of federal Indian law is controlled as much by the choice to hear a case as by the ultimate decision that is issued. Fletcher examines the Supreme Court’s behavior in Indian law cases at the certiorari stage in order to explain how modern Court behavior is changing the landscape of Indian law without even deciding some of the most important legal issues.