"A Desert Grows Between Us"' TheSovereignty Paradox at the Intersectionof Tribal and Federal Courts

Anyone seeking to understand the role of American federal courts in our constitutional democracy would be well-served by reading Steve McNeill's note, In a Class by Themselves: A Proposal to Incorporate Tribal Courts into the Federal System Without Compromising Their Unique Status as "Domestic Dependent Nations.'6 For the federal courts scholar, it is through an exploration of federal court interactions and limits that we can truly appreciate the expanse of federal power and the potential for abuses.4 Thus, McNeill's note holds interest for the (dominant) legal academy. The paramount value of McNeill's scholarship, however, lies in its aim to provide workable solutions for litigants. He seeks to honor the dignity of tribal sovereignty and further tribal aspirations, with due regard for the interests of non-Indians. The breadth and depth of McNeill's work leave no surprise as to why the Washington and Lee Law Review would bestow upon him its highest distinction.McNeill offers a thoughtful treatment of issues critical to tribal jurisdiction. As Professor Frank Pommersheim observes, "[fjederal Indian law has yet to resolve [certain] paradoxes, develop coherent theory, and establish a reliable conceptual and human framework within which to engage modern Indian law issues and tribal aspirations."5 McNeill's ambitious and detailed work seeks to inject some coherence by providing "a mechanism for tribal courts to fit in the American court system, while maintaining the uniqueness of tribal law."6According to Professor Judith Resnik, "the official canon of the federal courts has not included the relationship between the federal courts and Indian tribes."7 In fact, she adds: "Little is said about the federal courts' rolesometimes destroying Indian tribal culture and occasionally respecting it."8 McNeill's treatment offers an opportunity to accomplish Professor Resnik's narrative prescription: "to review the stories we have been telling about the federal courts, to acknowledge the role played by brute force, [and] to make plain the limits of constitutionalism and of history in explicating constitutionalism."9 His diagnosis10 of existing tribal law in the federal system shows "the limits of constitutionalism."11 Yet, McNeill's suggested solution12 may demonstrate "the possibilities of lawmaking to enable dignified interactions among and across inter-dependent sovereigns so as to reflect the hopes for which Marbury v. Madison stands."13Scholars describing such problems and proposing solutions encounter the potential pitfall of essentialism-the assumption that all who belong to a particular group possess like concerns and traits. A fruitful dialogue here often necessitates that we speak in terms of "tribal courts," "Indian Americans," and "non-Indians." Yet, any relevant discourse benefits from acknowledging the anti-essentialist reality about which Professor Pommersheim respectfully reminds us:A rich diversity of landscapes, cultures, histories, and people exists throughout Indian country. This country includes, for example, 278 federal reservations, ranging from that of the Navajo Tribe, with 160,000 members and fifteen million acres located in parts of Arizona, New Mexico, and Utah, to a few California rancherias that consist of only one or two families living on less than fifty acres.14Recall the historical landscape: "Measured separatism soon gave way to a federal policy of vigorous assimilation, with dire consequences for the concept of reservations as islands of Indianness. Homelands were cut open, and the bright line separating Indians and non-Indians was obliterated."15 Further, "there is much to learn from thinking about both the differences and the similarities" between Indian tribes and the state,16 as well as between Indians and non-Indians. Accordingly, the uniqueness of the people, problems, and existing structures requires thoughtful implementation of any proposed solution. In addition, such issues cannot be ripped from their current and historical contexts. …