Tribal Law Journal 2026 Call for Submissions
Geoffrey Heeren on Tribes, Noncitizens, and the Supremacy Clause
Geoffrey Heeren has published “Native Nations, Noncitizens, and the Supremacy Clause” in the Brooklyn Law Review.
Here is the abstract:
Native Nations and noncitizens have often prevailed in the face of adverse state action by asserting treaty rights, arguing that state actions are preempted by federal authority, or relying on federal common law. These claims are largely rooted in the Supremacy Clause of the United States Constitution, rather than Native Nations’ or noncitizens’ rights of their own. At the same time, the Supremacy Clause jurisprudence that developed as Native Nations and noncitizens raised these claims coincided with the growth of federal “plenary power” in both areas, depriving immigrants and Native Nations of strong rights of their own when faced with federal action. The Supreme Court’s approach to the Supremacy Clause in immigration and federal Indian law is inconsistent with the textualist and originalist method preferred by its majority. Existing scholarship has extensively examined the Supremacy Clause through a textualist lens, but has not addressed federal Indian law and immigration law. This is a particularly stark omission since much Supremacy Clause litigation centers on the experience of Native Nations and noncitizens. This article offers a new framework for Supremacy arguments in Immigration and federal Indian law. Under a textualist reading of the Supremacy Clause, the Court should alter its doctrine concerning self-executing treaties, return to an approach grounded in the inherent sovereignty of Native Nations rather than federal common law, and abandon its strongest form of “plenary power preemption.” Finally, the article situates these supremacy claims within the larger landscape of the Court’s retrenchment from anti-subordination principles and growing solicitude toward states’ rights. Moving forward, preemption claims may be less effective for the immigrants or Native Nations that assert those claims against states. Moreover, preemption arguments reify the experiences of noncitizens and Native Nations by translating them into arguments about federal power. In contrast, rights claims—even when they do not prevail—can mobilize and ground a political strategy for subordinated groups. In this shifting doctrinal landscape, treaty rights claims may be the supremacy arguments most likely to support a multifaceted movement to empower some historically disempowered groups.
New Student Scholarship on Land Back, Land Grab Universities, and the Morrill Act
Melissa Fergusson has published “#Landback to Indigenous Peoples from “Land-Grab” Universities” in the Cornell Law Review. PDF
Here is the abstract:
The Morrill Land Grant Act of 1862 (Morrill Act) was the first federal legislation to fund public higher education in the United States, funding fifty-two land-grant universities (LGUs) that still exist today. While the purpose of the Act was to “democratiz[e] . . . education” focusing on the study of agriculture and mechanical arts, it created LGUs by taking Indigenous land. In 2020, High Country News issued an investigative report, “Land-Grab Universities,” documenting how LGUs were established both on occupied Indigenous land and through the sale of Indigenous land taken by treaty, land cession, or seizure, which provided seed money for the universities. While some LGUs have increased support for Indigenous students through tuition assistance or increased funding for Indigenous studies, none have implemented land return to Indigenous peoples.
This Note analyzes potential remedies to redress the taking of Indigenous lands by the Morrill Act in the context of the #LandBack movement. Part I discusses the Morrill Act provisions and impact as well as the historical context. Part II discusses the modern-day #LandBack movement and past #LandBack actions at the federal and state levels. Part III provides a survey of current responses from LGUs to their Morrill Act legacy. Part IV explains why #LandBack is needed to make amends to Indigenous peoples for the taking of their lands via the Morrill Act. Part V identifies #LandBack remedies that LGUs can take to recompense Indigenous peoples and provides an implementation framework. It also proposes legislative reform, including creating a cause of action for land claims, to compensate Indigenous peoples for the taking of their lands via the Morrill Act.
Tohono O’Odham Nation Sues DHS over Border Wall Construction
California Superior Court Bars City of Corona from Disturbing Pechanga/Rincon/Soboba Ancestral Remains
Here is the order in Pechanga Band of Indians v. City of Corona (Cal. Super. Ct.):
Ninth Circuit Affirms Yurok/Hoopa/Feds Win in Klamath River ESA Fight
Sault Tribe COA Holds Tribal Court Possesses Jurisdiction over Insurance Company
Here is the opinion in Lexington Insurance Company v. Kewadin Casino.
Sault Tribe COA Holds Tribal Court Possesses Jurisdiction over Non-Indian Parents of Tribal Citizen Children Residing on Tribal Lands
Here is the opinion in In the Matter of MB and EB.
New Scholarship on the Adjudication of Tribal Interests without their Participation
Luke Colvard has posted “Uncivilized Procedure,” forthcoming in the UCLA Law Review, on SSRN.
Here is the abstract:
This Comment addresses a persistent and under examined feature of federal Indian law: the adjudication of tribal rights without tribal participation. From the Marshall Trilogy to present day disputes, the rules of access to U.S. courts have repeatedly excluded tribes from cases that define their property and jurisdiction. The procedural barriers that facilitate this, including representation by the United States of tribal interests and the complete lack of tribal notice and intervention rights in Indian country criminal cases, are not relics of a bygone era. They continue to shape foundational Indian law decisions today.
This exclusion is unjust and destabilizing. When the United States purports to represent tribal interests while pursuing its own, tribes are silenced and later barred from relitigating outcomes that fail to reflect their needs. In criminal cases, Indian defendants may raise tribal jurisdiction to contest state authority while the tribe whose jurisdiction is contested remains unaware of the proceeding and unable to intervene. The already existential consequences of this system are worsened by denying tribal governments a right of action under §1983 to affirmatively challenge violations of their members’ rights. As a result, courts are often deprived of the expertise of the sovereigns most affected by their rulings and the deprivation of the rights of Native peoples is streamlined. This Comment contributes to the literature by emphasizing procedure as a central battleground of tribal sovereignty and concomitantly, Native cultural survival.
The Comment proceeds in three parts: it traces the history of tribal exclusion from courtrooms, identifies modern hurdles to tribal participation, and proposes reforms drawing on the Indian Child Welfare Act as a model. These reforms would not decolonize the courts, but they would help civilize their procedures.
Ablavsky on State Criminal Jurisdiction in Indian Country
Gregory Ablavsky has posted “State Criminal Jurisdiction in Indian Country: A History,” forthcoming in the Virginia Law Review, on SSRN.
Here is the abstract:
In Oklahoma v. Castro-Huerta (2022), the Supreme Court dismantled the long-standing black-letter principle that states lack criminal jurisdiction in Indian country absent congressional authorization by embracing a revisionist historical account emphasizing inherent state sovereignty. The consequences have been predictable: intense uncertainty and ongoing litigation. Oklahoma’s highest courts, for instance, have repeatedly endorsed inherent state jurisdiction over Native people within Indian country, employing Castro-Huerta to distinguish considerable contrary federal law and precedent.
The challenge, especially given the current history-minded judiciary, is that the claim that states have never asserted inherent criminal jurisdiction over Indian country is too simplistic and easily disproven, making it tempting to toss out the old rules. But the revisionist claim, advanced by some scholars and embraced by Justice Thomas, that states enjoyed expansive criminal jurisdiction, is also wrong. This Article attempts to offer a more rigorous legal history, moving beyond the handful of Supreme Court decisions to survey every identifiable state and federal case on inherent state criminal jurisdiction in Indian country. It depicts four distinct periods: an initial headlong assault on federal authority (1787–1834) ; an era of “great confusion” in which states pressed on the many uncertainties of federal Indian law (1835–1886) ; the jurisdictional chaos of the allotment era (1880s–1930s); and a period of relative statutory stability (1948–2022) that Castro-Huerta has now abruptly terminated. What this history shows above all is contestation—a cat-and-mouse game in which states seized on ambiguities to claim authority, only to be periodically rebuffed by the federal courts. But the mere existence of past conflict does not support broader state jurisdiction in Indian country. Rather, every conventional method of legal and constitutional interpretation undercuts the argument that such jurisdiction was ever meaningfully positive law. There are also strong normative reasons for skepticism, since state claims of authority were rarely motivated by public safety but were instead tools to facilitate Native dispossession and erode tribal self-governance. By recounting these complexities, the Article challenges the current legal instability that threatens the foundations of modern tribal sovereignty.
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