Disclaimer clauses in state constitutions do not represent a form of “practical reasoning” in the field of American Indian law today because they are anachronistic.  As defined by Philip P. Frickey in his Berkeley Law Scholarship Repository article “Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law,” practical reasoning in American Indian law “attacks legal problems from a contextual framework” encouraging in the application and development of Indian law “a concern for history and context; a desire to avoid abstracting away the human component in judicial decision making; an appreciation of the complexity of life; some faith in dialogue and deliberation; a tolerance of ambiguity, accommodation, and tentativeness, but a skepticism of rigid dichotomies; and an overall humility.” (Frickey 1990: 1137) Evidence of the anachronistic, non-contextual nature of disclaimer clauses can be found in “state efforts to interfere with the internal affairs of tribal nations [when they] violate [the clauses],” note scholars David E. Wilkins and K. Tsianina Lomawaima in the chapter covering state disclaimer clauses in their book Uneven Ground: American Indian Sovereignty and Federal Law. (Wilkins and Lowmawaima 2001: 179) Additionally, “[c]ertain congressional policies – such as allotment, termination, and (jurisdictional sharing) – as well as some Supreme Court decisions have eroded the protection that disclaimer clauses afford to tribes.” (Wilkins and Lowmawaima 2001: 213)

As an example Wilkins and Lowmawaima direct the reader’s attention to the precedent-setting 1996 Supreme Court Case Seminole Tribe v Florida (116 S.Ct. 1114) In Seminole Tribe the Supreme Court ruled that under the 1988 Indian Gaming Regulatory Act (IGRA, 102 Stat. 2475) tribes must settle tribal-state disagreements that arise within the context of the Act with the state, and not the federal government, as the Act initially indicated.  “Through its ruling in Seminole Tribe, the Supreme Court has effectively stated its intention to disregard or sever the tribes’ constitutional linkage to the federal government via the commerce clause.” (Wilkins and Lomawaima 2001: 187) In this way, state disclaimer clauses may be said to exhibit what Frickey identifies as a “conflict between uniqueness and uniformity” (Frickey 1990: 1235) in American Indian law.  In Seminole, the uniqueness of their federal-tribal relationship, and indeed, the unique relationship of all indigenous North American people embedded in treaty language, was diminished when the issue was approached by the Court “in a descending inquiry from conceptual, formal theory” (Frickey 1990: 1208), a uniform approach to American Indian law that is standard in the field of law and lawmaking in America today.

This formal approach results in a tendency of courts “to avoid reliance on platonic notions of Indian sovereignty and to look instead to the applicable treaties and statues which define the limits of state power.” (Frickey 1990: 1170) But as a result, “formalism in interpretation, under which congressional expectations should control judicial construction, has not governed many important federal Indian law cases,” leading Frickey to speculate that today’s Court is “sharply divided on how to approach federal Indian law.” (Frickey 1990: 1201) Disclaimer clauses and much of the rest of the body of American Indian law are highly inconsistent in a modern era of law and lawmaking. 

“Argument tends to be cumulative rather than linear” for advocates of applying the principles of practical reasoning to American Indian law. (Frickey 1990:1217) In his advocacy, Frickey uses the metaphor of the “hermeneutical circle: a part can only be understood in the context of the whole, and the whole cannot be understood without analyzing its various parts.” (Frickey 1990: 1217-18) Today’s judges “must not only be open-minded, but they must also have the capacity and energy to engage in the complex, hard work of critical interpretation.” (Frickey 1990: 1219) This approach has the goal of “reconstructing the legal treatment of tribal Indians as they are situated today.” (Fricky, 1990: 1240)

References

Frickey, Philip P. "Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law." California Law Review 78.5 (1990): 1137. Web.

Wilkins, David E., and K. Tsianina Lomawaima. Uneven Ground: American Indian Sovereignty and Federal Law. Norman: U of Oklahoma, 2001. Print.