“Although the sovereignty of Indian tribes may not be guaranteed or defined in the Constitution, this does not mean that tribes have no constitutional status. The extent of their sovereignty should, therefore, be somewhat tied to a constitutional mode of analysis. The biggest threat to the future of Indian Nations is the Court’s refusal to integrate or incorporate Indian tribes under a third sphere of sovereignty within our constitutional
system.”‘ Without such constitutional incorporation, the tribes exist at the “whim of the sovereign,” be it the United States Congress or the Supreme Court. Not only is this inconsistent with the emerging norms of
international law on the rights of Indigenous Peoples, but it has also resulted in confusion, incoherence, and a Court determined to usurp the role the Constitution vested in Congress, which is to regulate the relations
between the tribes and the United States.”
