By Kevin K. Washburn. Full text here.
The Supreme Court’s landmark 1976 decision in Bryan v. Itasca County is known within Indian law academia for the story Professors Philip Frickey and William Eskridge tell about the case: it reflects the dynamic and pragmatic interpretation of a termination-era statute to limit termination’s harmful legacy during a more enlightened era of tribal self-determination. What is less well appreciated about the case is that it may be one of the most important cases in the modern era in that it provided the legal bedrock upon which the Indian gaming industry was built. This Article explores the genesis of the litigation, and traces its path to demonstrate how it came to produce a unanimous Supreme Court opinion of surprising breadth. It also demonstrates that the right to engage in gaming, which ultimately has produced vast tribal economic development and even riches for some tribes, had its roots in Indian poverty as much as Indian sovereignty.