Turtle Talk

Grand Christensen has posted “Indian Deference” forthcoming in the University of Chicago Law Review, on SSRN. Here is the abstract:

The Supreme Court’s decision in Loper-Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), formally retired Chevron deference. By rejecting the long-standing presumption that courts should defer to an agency’s reasonable interpretation of ambiguous statutes, Loper-Bright reshapes the relationship between the judiciary and the executive branch. Yet this shift poses unique challenges in the field of federal Indian law, where agency decisions have long been essential to the implementation of the federal government’s trust responsibility to Indian tribes. This Article argues that despite Loper-Bright’s general rejection of Chevron, federal courts are obligated to defer to federal agency decisions involving Indian tribes. This deference is a distinct, sui generis doctrine grounded in constitutional structure, history, and the unique status of tribal nations.

Federal Indian law has always occupied a special place in the constitutional order, one shaped by the trust relationship between the United States and tribal nations. When federal agencies act pursuant to statutes and treaties embodying that trust, their decisions do not merely interpret general administrative policy, they execute sovereign obligations owed to another Nation. Judicial deference in this context therefore protects not just agency expertise but also the political accountability of the elected branches, which are constitutionally charged with managing relations between the United States and tribes. The elimination of Chevron’s framework should not be read to eliminate this constitutionally anchored respect for the federal government’s political and moral commitments to tribal self-determination.

The implications are profound for federalism and for Indian law. Judicial deference to agency decisions in Indian affairs aligns with both Article III’s limits on judicial power and the federal government’s trust obligations. Judicial modesty in this arena reinforces the proper constitutional balance among the branches, ensuring that the courts do not displace the executive’s policy judgments or the legislature’s political commitments toward tribal nations. Recognizing the Indian deference doctrine honors the jurisprudential history of tribal-federal relations, safeguards tribal sovereignty, and preserves the integrity of federal Indian law.