Turtle Talk

Issac Santos and Elizabeth Ann Kronk Warner have posted “Turning Sugar to Alcohol:  An Originalist Critique of Implicit Divestiture” on SSRN.

Here is the abstract:

This Article challenges one of federal Indian law’s most consequential doctrines through the lens of originalism, the constitutional methodology now dominant on the U.S. Supreme Court. The doctrine of “implicit divestiture,” first articulated in Oliphant v. Suquamish Indian Tribe (1978), holds that tribal governments have been divested of certain sovereign powers deemed “inconsistent with their status” as domestic dependent nations-even absent any congressional statute or treaty provision explicitly abrogating such authority. Through comprehensive examination of the doctrine’s development from Oliphant through United States v. Cooley (2021), this Article demonstrates that implicit divestiture represents precisely what originalism rejects: judge-made policy disguised as law, where contemporary judicial preferences about fairness have supplanted interpretation of fixed legal sources understood by the founding generation. Tribal sovereignty existed at the Constitution’s enactment, making this area uniquely suited to originalist analysis. Yet no constitutional provision, founding-era treaty, or principle of eighteenth-century international law authorized courts to unilaterally diminish tribal sovereignty without congressional action. Even the Marshall Trilogy-decided within decades of the founding-identified only two limited exceptions to retained tribal sovereignty, both grounded in the doctrine of discovery and European law of nations as contemporaneously understood. Following the analytical path marked by Justices Gorsuch and Thomas’s recent dissent questioning the plenary power doctrine’s constitutional foundations, this Article argues that implicit divestiture similarly lacks any basis in the Constitution’s original meaning and should be abandoned in favor of originalist principles that preserve tribal sovereignty except where explicitly abrogated by Congress or limited by founding-era legal sources. This intervention arrives at a crucial moment when the Court’s originalist majority is actively reconsidering longstanding judge-made doctrines across constitutional law, making reconsideration of implicit divestiture both timely and methodologically imperative for a Court committed to fidelity to the Constitution’s original public meaning.