Indian Civil Rights Act

[Sanford Levinson]

>The Indian Commerce Clause?  (Yes, on the one hand, Lopez and Morrison, but
>on the other, McClung and Heart of Atlanta.)
>
I think Judith Royster has to be right that it *can't* be the Indian
Commerce Clause, and not only because Kagama specifically rejected reliance
on it.  McClung and Heart of Atlanta rested, in part, on the argument that
there were inefficiencies in the national labor market if travellers (and
relocating workers) knew that they would face discrimination in such basics
as public accommodations.  Also, of course, there is the (in)famous
argument that Ollie's beef travelled in interstate commerce before arriving
in Alabama (or, at least, that it competed with interstate beef).  But
Indian reservations are scarcely trying to attract outsiders to settle.
The history of the Indian Civil Rights Act, which was sponsored, I believe,
by Senator Ervin of North Carolina, has to do with his (and others')
outrage at what was perceived as the unfairness of applying certain
"internal" tribal norms to members of the tribe.

A further point for those who defend the (relative) autonomy of Indian
tribes against federal regulation:  To the extent that the argument depends
on the desirability of nurturing pluralism, then what, exactly, cannot the
New York legislature carve out a Satmar Hassid school district as a way of
nurturing pluralism?  That is, is there anything of a general nature to be
learned from the place of American Indians within the fabric of American
constitutional law?  If there is, perhaps that suggests we should try to
bring to our students' attention that American Indians exist within that
fabric.

Sandy Levinso