Geoffrey Heeren has posted “Native Nations, Noncitizens, and the Supremacy Clause,” forthcoming in the Brooklyn Law Review, on SSRN.

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.