The Moral Complacency of Federal Indian Law

For all its association with historical tragedy, federal Indian law remains thoroughly amoral. The field draws little distinction between horrific and laudable traditions. In sharp contrast with the Court's equality doctrines, Indian law continues to rest on explicit structural subordination. Its core precepts treat acts of historical treachery and cultural annihilation as legally generative in the present.

This Article identifies Indian law's moral vacuity as an unexplained and unjustified aberration. It urges the Court to speak and theorize about Indian law in a register befitting the subject's moral gravity. In recent years, Justice Gorsuch has shown that Indian law's moral complacency need not be accepted as natural or inevitable. But I question his well-meaning insistence that the field can be set aright by adhering to original textual bargains.

It is the ethical narratives to which Gorsuch subscribes, rather than his methodological commitments, that hold the promise of tempering Indian law's most outrageous features. I also critique Gorsuch's recent suggestion that Indian law contains an "anti-canon" whose repudiation would rid the doctrine of its worst excesses. Moral socialization in this field should occur through the rejection of ideas, not the select vilification of cases with complicated legacies.