The trickster story is here reconceptualized as a framework for analyzing the US Supreme Court’s jurisprudence of what is often called “Indian law,” even though it is not Indian. Rather, it is a distinct body of American law that governs Native American relationships with the United States and its citizens. Much of this law, but not all, is constitutional law, handed down in hundreds of cases since the early nineteenth century, now more than 200 years of constitutional jurisprudence. This is “the worst trickster story ever told,” a critique of this jurisprudence focusing on the plenary power doctrine first set down in United States v. Kagama in a complex and lengthy analysis, covering over 100 cases, treaties, texts, and other sources. The argument is that nothing in the Constitution supports the doctrine which has disempowered Native Americans for 160 years. The critique is devastating, skillfully employing the indigenous legends of the trickster as a creator of US jurisprudence, in the end leaving the Indian law as handed down by the US Supreme Court dismissed as trickster jurisprudence.

This is a lot to take in in one book of moderate length, a deep read that challenges both legal theory and imagination. The clear starting point is to imagine an indigenous jurisprudence, centered on the sovereignty and traditions of the Indian nations, not what is taught as jurisprudence in law schools or practiced in the courts. Indian law is the creation of American judges, American legislators, derived from both the English common law and also the lived history of Americans. It is also a law of racism, colonialism, legalizing the taking of Indian land, and the resulting reduction of the Native American nations to reservations, mostly small, including only a fraction of their lands. Native Americans were impoverished under this law and left in the position they hold today.

If it might be difficult to imagine a “trickster” analysis of US Indian law, it is important to recognize that this law has never been accepted as either “fair” or even “law” by most Native Americans. While lawyers have fought hard in United States courts using the tools of law, the idea that the legal system was rigged against them or that judges simply did not understand runs deep in Indian Country. Bad jokes about this law abound. The trickster analogy, in this context, makes this struggle understandable.

This analysis depends on an understanding of what a trickster story is and Richotte explains it carefully and in detail (120–33). Trickster stories are common in cultures around the world, including North American indigenous cultures. Nanaboozhoo, the Anishinaable trickster figure, reappears throughout the book telling trickster stories that parallel the legal narrative. This is complicated analytically and challenges the Eurocentric nature of our jurisprudence. The reader has to think hard to engage this book.

The way in which this trickster figure applies to the work of judges follows (121):

The central argument of the book, which Richotte calls “the mystery,” is that the so-called “plenary power doctrine” which holds that the US Congress has complete power over the Indian nations is not derived from the US Constitution but has been created by judges through various legal devices and then uncritically passed along from one case to the next, is the “worst trickster story ever told.” Yet the plenary power doctrine is at the core of Indian law. This juxtaposition carries through throughout the book, a core doctrine of US law as a trick.

The evidence for this takes up the entire book, analyzing 100 cases and other sources. The analysis is compelling and far too long and complex to be fully summarized here. The full analysis is a sweep of Indian law from Chief Justice Marshall’s “domestic dependent nations” and the sovereignty language of those cases to ex parte Crow Dog, 109 US 556 (1883) and United States v. Kagama, 118 US 375 (1886), the murder cases from which the doctrine actually emerged, continuing to the present. The idea that Indian killings could be beyond the reach of United States law, because the Indian nations had their own laws and retained sovereignty over their own affairs, challenged both the imagination and the jurisprudence of that Supreme Court. The justices struggled with these cases, as the judgments emerged three years apart from essentially the same court. Justice Miller, writing for the majority in Crow Dog, properly understood the meaning of tribal sovereignty and the current state of the law by holding that the Lakota retained their own criminal jurisdiction. But he invited Congress to remedy this problem—if there was indeed a problem. Congress we now know did so with great speed, enacting the Major Crimes Act putting killings in Indian Country under federal jurisdiction. Kagama, probably the first case any US attorney could find to test the doctrine, led to the Supreme Court’s decision that the law was constitutional because Congress had plenary power over Indian tribes. The basis of this holding, by Justice Stanley Matthews, in an assertive analysis nowhere rooted in the Constitution (383, 384):

Following this the Indian nations lost their sovereign right to govern their own communities. The trickster analysis goes on throughout the book, case after case, carefully studying the language of each case and demonstrating that the basis of the plenary power doctrine is illusory, a trick, up to the present. The Supreme Court cases that involve Native Americans and are handed down every year cover a wide variety of events with wildly inconsistent results, some not based on the plenary power doctrine, and some using it together with other doctrines. Justice Thurgood Marshall, famously quoted in Bob Woodward and Scott Armstrong, The Brethren (1979, 359, 58), called them “chicken shit cases” and Justice John Marshall Harlan called them “pee wee” cases. Chief Justice John Roberts has famously said that the job of the Court is to “call balls and strikes,” surely a difficult metaphor to apply to Indian cases or the complexity of the plenary power doctrine.

That is where it stands, and the plenary power doctrine is still law, trick or not, even as other legal doctrines put it in context, or limit it, or balance it. The damage that the doctrine does to the Indian nations, though, is profound because it places these nations in an inferior legal status, always subject to the will of Congress. Richotte has hope, arguing for abolition of the doctrine, replaced by a sovereignty-based approach requiring the consent of the Indians nations to laws impacting on their people or nations. This is another legal story, not requiring a trickster to tell it.