What power do the federal courts have to supply tribal rights of action when Congress has been silent? This Article answers that question by linking two seemingly disparate schools of thought: federal Indian law and tort theory. Focusing upon tribal rights of action forces us to correct significant misunderstandings about perennial debates concerning corrective justice, distributive justice, reparations, and the law of remedies.
My thesis is that there is a surprising and significant consonance between federal Indian law’s doctrines of federal obligation towards Tribes and the theory of civil recourse. Reflected in Marbury v. Madison’s famous right-remedy principle, civil recourse holds that in some instances the government has a duty to provide the victim of a wrong an avenue for redress. This Article argues that the federal government has a duty of civil recourse towards Tribes, arising from the treaty system and the contemporary constraints that Congress and the courts have imposed upon the exercise of tribal adjudicative authority. The duty to provide civil recourse distinguishes tribal rights of action from the United States’ own rights to sue in federal court, as well as federal rights of action for states, which can freely vindicate their interests in their own courts without regard to the limits the United States imposes upon the exercise of tribal sovereignty. The special federal duty to provide civil recourse may be fulfilled by Congress, which can expressly create a right of action. When Congress does not do so, the federal courts have a special competence and duty to imply tribal rights of action.