Gregory Ablavsky has published “Structural Federal Indian Law after Brackeen” in the Arizona Law Review. PDF

The abstract:

“You know, when it comes to Indian law, most of the time we’re just making it up,” Justice Scalia once observed. This admission echoed long-standing critiques of the Supreme Court’s jurisprudence in the field, but these anxieties did not trouble the Court—until recently. Over the past two decades, the Court has begun to revisit the field’s foundations, culminating in the Court’s 2023 decision in Haaland v. Brackeen, which upheld the Indian Child Welfare Act against a constitutional challenge. Though the Court upheld the law, the majority pleaded for a “theory for rationalizing this body of law.” Justices Gorsuch and Thomas, each writing separately and at length, offered sharply different visions that would dramatically remake current doctrine.

Rather than providing a single theory, this Article tries to make sense of this current moment of “confusion” in federal Indian law, in the Brackeen majority’s language, by putting the field in dialogue with structural constitutional law. The fields have much in common: both deal with legal rules governing the distribution of governmental authority, and both confront the frequent absence of textual guidance. But in structural constitutional law—which rarely considers the authority of Native nations—the Court has developed a clearer and more fully articulated methodology for resolving this problem of textual underdetermination.

Extending this approach to federal Indian law, I argue, could produce greater clarity and rigor in the field. In particular, this method yields what I term two answers that the federal government has posited over its history to the interrelated questions of federal, Native, and state authority. I then use this framework to evaluate the visions for federal Indian law announced in Brackeen, all of which elide or submerge the jurisprudential choices that assessing these conflicting answers requires. I conclude by offering some thoughts on how Native nations and their advocates might confront this current moment of uncertainty and debate within the Court’s Indian law jurisprudence.