“This article will explore the Supreme Court’s creation and subsequent use
of implicit divestiture as a theory delimiting tribal political authority. The
article will explore this theory within the larger context of the Court’s struggle
to articulate principles applicable to the radically changed geopolitical and
cultural landscape of today’s Indian reservations. The article will also consider whether the Court correctly perceives its interpretive role in the absence of textual congressional direction. This analysis will reveal that the Court’s approach is fundamentally flawed. Implicit divestiture lacks coherent structure, a sense of limits, that give theories value and predictive worth. Additionally, it is overly burdened with historical and ethnocentric biases that run antithetically to the notion of retained tribal powers.”
