Here is the opinion in Mallette v. Adams:
Katherine Florey on Indian Law Countercanons
Katherine Florey has posted “Indian Law Countercanons,” forthcoming in the Michigan Law Review, on SSRN.
Here is the abstract:
On the second or third day of class, Federal Indian Law students learn that courts apply field-specific canons, originally derived from Chief Justice Marshall’s 1832 opinion in Worcester v. Georgia, to determine the degree to which tribal nations retain sovereign powers and treaty-protected rights in the face of arguably conflicting law. Although the canons are formulated in different ways, they are animated by the shared goal of establishing structural recognition and protections for tribes. Nonetheless, scholars and tribal advocates have lamented that, even as courts continue to apply the canons, in recent years they have failed to do so consistently.
This Article posits, however, that the issue goes deeper. The Supreme Court, especially in recent decades, has done more than simply ignore the canons when it chooses to. Rather, in keeping with Karl N. Llewellyn’s famous observation that, where statutory interpretation in general is concerned, “there are two opposing canons on almost every point,” the Court has developed a series of what might be called the Indian law countercanons. Although not precisely opposite to the traditional Indian law canons in all respects, the countercanons reflect a set of values wholly inconsistent with the protections for tribal sovereignty that the traditional canons embody, instead evincing an overwhelming preoccupation with safeguarding the non-Native status quo.
The countercanons have strongly influenced outcomes in a variety of cases over the past few decades. Yet the Court has not identified them as canons, nor has it explained their source, role, or scope of application. To fill this gap, this Article attempts to map the evolution of the countercanons and to explore the significant role they have played in a variety of situations. The Article also adds a new element to the abundant critiques of the Court’s recent federal Indian law jurisprudence by analyzing the countercanons specifically as canons – that is, by connecting them to the larger literature on the role of canons in legal interpretation more generally. Reviewing two areas of canon scholarship – standards for assessing canons’ validity and considerations of when it is appropriate for canons to change – the Article concludes that, in contrast to the traditional canons, the countercanons lack legitimacy. On this basis, the Article critiques both the countercanons themselves and the process by which they have come to partially supplant the traditional canons.
White Earth Ojibwe COA Decision in White Earth Division of Natural Resources v. Vipond
Scotts Valley Sues Interior over Gaming Decision Reversal
Here is the complaint and exhibits in Scotts Valley Band of Pomo Indians v. Dept. of the Interior (D.D.C.):
Blast from the Past: Vine Deloria’s White Paper on the Right to Education and Accessing Federal Archives and Libraries
Here is “The Right to Know — A Paper”:
Washoe Dev. Corp. Sues Trust Land Lessees
Here is the complaint in Washoe Development Corp. v. Carson Valley/Tahoe Self-Storage LLC (D. Nev.):
New Empirical Research on the Impacts of McGirt and Castro-Huerta
Alexandra Fay, Stephen Galoob, W. Robert (Will) Thomas, and Jeffrey Y. Zhang have posted “Testing McGirt” on SSRN.
Here is the abstract:
McGirt v. Oklahoma (2020) and Oklahoma v. Castro-Huerta (2022) reallocated criminal jurisdiction across federal, state, and tribal governments in eastern Oklahoma on a scale unmatched in modern American history. Three testable predictions framed the debate around these landmark decisions: (1) that the federal courts would be inundated and incapacitated (the Deluge Hypothesis); (2) that concurrent state jurisdiction over General Crimes Act cases under Castro-Huerta would either strengthen or undermine enforcement (the Dual Sovereignty Hypotheses); and (3) that Indian country defendants would face harsher or more lenient sentences in federal court than in state court (the Disparity Hypotheses).
We test these predictions against a novel dataset of over 140,000 Oklahoma state criminal sentences and nearly 1,500 federal Indian country prosecutions hand-collected from PACER. Four findings emerge. State sentences imposed on American Indian defendants in the McGirt reservation counties fell by roughly 78%, while sentences elsewhere held steady or rose. The federal deluge was real but short-lived, consistent with the Oklahoma Court of Criminal Appeals’ 2021 decision against retroactive application in Matloff v. Wallace. Federal General Crimes Act filings collapsed after Castro-Huerta, supporting the warning that concurrent state jurisdiction would result in federal underenforcement. However, the increase in state prosecutions in the affected counties apparently subsumed the decline in federal prosecutions. And across every offense category we examine, federal sentences are equal to or lighter than their state counterparts.
These empirical findings should inform the future of federal Indian law and policy. The restoration of reservation status triggers serious consequences for federal, state, and tribal courts, and these consequences can be managed without sacrificing the rule of law. McGirt challenged the federal courts but did not break the system. Courts can wield criminal procedural rules to limit the fallout of major jurisdictional change. Our findings also show that concurrent jurisdiction results in significant effects on criminal practice. For better or for worse, Castro-Huerta produced a substantial return of General Crimes Act cases to the state system. And despite their strained capacity, federal courts tasked with adjudicating Indian country crimes sentenced consistently throughout the surge, at levels at or below those of Oklahoma-one of the most punitive states in the Union.
Highly, highly recommended.
Tribal Amicus Brief in Suncor v. Boulder
Arizona Attorney Special Issue on Indian Law 2026
Oklahoma Federal Court Dismisses Choctaw Inmates’ Request for Federal Court to Assume Control over Tribal Justice System
Here are materials in Bayles v. Choctaw Nation of Oklahoma (E.D. Okla.):
Turtle Talk 
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