This Article argues that current Supreme Court reasoning concerning the reserved powers of state governments undermines Supreme Court reasoning with respect to the retained powers of tribal governments. This Article also argues that tribal assertions of power over nonmembers constitute "state action" and, as such, should be subject to constitutional due process and equal protection constraints. Third, this Article will apply its thesis by discussing and critiquing a recent Supreme Court decision concerning tribal zoning authority over nonmembers. Fourth, the Article posits an explicit theory concerning tribal governmental powers that is consistent with the legislative history of the Wheeler-Howard Act and the implicit reasoning of recent Supreme Court decisions.
Bradley B. Furber, Two Promises, Two Propositions: The Wheeler-Howard Act as a Reconciliation of the Indian Law Civil War, 14 SEATTLE U. L. REV. 211 (1991).