A Woman of the West, But Not the Tribes: Justice Sandra Day O’Connor and the State-Tribe Relationship

A WOMAN OF THE WEST, BUT NOT THE TRIBES: JUSTICE SANDRA DAY O’CONNOR AND THE STATE-TRIBE RELATIONSHIP

Richard L. Barnes*

INTRODUCTION

Sandra Day O’Connor was the first woman appointed to the United States Supreme Court. As a first-in-category appointee to the Court, her historical role is assured. This Article examines one piece of that legacy: Is it plausible to find some of her character as a “first” in her opinions for the Court in Indian cases? Specifically, does a legacy of categorical pioneering exist in the Justice’s treatment of American Indians in her Supreme Court opinions?

Any prediction as to outcome would be shaky if based on tribal interests alone, but the examination below shows something at least as valuable.1 Her overall approach to the federal-state power balance deeply affected her opinions in the area of federal Indian law.

It appears that her overt concern was about the federal state balance, a federalism concern, and one that deeply affected her view of the tribal-state balance. Many of the opinions examined below are foreshadowed by the structure of the Justice’s opinions. Those that rested on doctrines of federal-state power allocation, such as preemption, were likely to be a loss for the tribe in its role as surrogate for federal power. This tribe-as-

* The Leonard B. Melvin, Jr., Distinguished Lecturer in Law and Professor of Law at the University of Mississippi School of Law. My thanks to Dean Richard Gershon and the Lamar Order for continuing