Important New Scholarship on the Originalist Foundations of the Indian Canons and Tribal Sovereignty

Seth Davis, Eric Biber & Elena Kempf have posted “Persisting Sovereignties,” forthcoming in the University of Pennsylvania Law Review, on SSRN. Here is the abstract:

From the first days of the United States, the story of sovereignty has not been one of a simple division between the federal government and the states of the Union. Then, as today, American Indian tribes persisted as self-governing peoples with ongoing and important political relationships with the United States. And then, as today, there was debate about the proper legal characterization of those relationships. The United States Supreme Court confronted that debate in McGirt v. Oklahoma when, in an opinion by Justice Neil Gorsuch, it held that the reservation of the Muscogee (Creek) Nation “persists today.” The Court’s recognition of the persistence of Tribal sovereignty triggered a flurry of critical commentary, including from federal lawmakers who share Justice Gorsuch’s commitment to originalism. But the original story of federal Indian law supports the persistence of tribal sovereignty.

Through its treaty practice, and opinions of its Supreme Court, the United States recognized Indian tribes as political communities whose preconstitutional sovereignty persisted despite their incorporation within U.S. territory. According to the Marshall Court, tribes were “states” and “nations” with whom the United States had formed political relationships. These terms, the Court explained, had a “well-understood meaning” under the law of nations and applied to tribes as they applied “to the other nations of the earth.” This Article explores the original public meaning of those terms as they applied to Indian tribes through the first comprehensive analysis of the international law commentary cited by the Marshall Court as well as historical examples of shared sovereignty that were familiar to lawyers during the early Republic.

In particular, this Article explores two consequences of tribes’ status as “states” and “nations” under international law during the early Republic. First, it provides an originalist foundation for the Indian canon of construction’s rule that tribal sovereignty is preserved unless expressly surrendered. Like states under international law, tribes retained whatever measure of sovereignty they did not expressly surrender by agreement. Accordingly, a court interpreting an Indian treaty must construe ambiguous terms to retain tribal sovereignty. Today, this rule of interpretation is known as the Indian canon of construction and is thought to be peculiar to federal Indian law. To the contrary, however, the Indian canon’s foundations include generally accepted principles of the law of nations at the time of the Founding. Second, this understanding of Indian tribes as “states” implies that the sovereignty of tribes is not divested by their incorporation within the United States and persists despite periods in which federal and state governments have prevented its exercise. This principle, which has important implications for contemporary debates in federal Indian law, not only justifies the Court’s recognition of tribal persistence in McGirt, but also offers a way for thinking about the future story of divided sovereignty in the United States.

The G. William Rice Memorial Scholarship Deadline Approaching

G. William “Bill” Rice

was an attorney, University of Tulsa Law School professor, widely hailed expert on American Indian legal matters, and beloved mentor, colleague, am friend to many. A citizen of the United Keetoowah Band of Cherokee Indians, Bill dedicated his life to furthering the rights of Indigenous peoples worldwide. This scholarship is granted in his name and is intended to help law students with the costs of the bar exam.

Applications due October 31st, 2021

Sponsored by the Oklahoma Bar Association Indian Law School

THREE $2,000.00 scholarships will be awarded to deserving second or third year law school students who intend to practice Indian Law in Oklahoma.

Applications must include:

  1. Cover ketter describing commitmemnt to practice Indian Law in Oklahoma;
  2. Resujme describing Indian Law related activities;
  3. Law school transcript; and
  4. Academic or porfessional reference letter of support for your application.

Submit applications to:

Debra Gee

PO Box 1548

Ada, Oklahoma 74821

Or by email to:

Awards will be announced in November during the OBA Annual Meeting- Indian Law Section

Accountability, Climate, Equity, and Scholarship (ACES) Fellows Program at Texas A&M

For those committed to increasing diversity in the legal profession, Texas A&M University School of Law announces the Accountability, Climate, Equity, and Scholarship (ACES) Fellows Program at Texas A&M University School of Law.

The ACES program is a two-year fellowship designed to help early career legal scholars get the training and mentoring necessary to become successful members of the legal academy. Funded by Texas A&M’s Office of the Provost and administered by the University’s Office for Diversity, the fellowship is designed to help early career scholars who are strongly committed to diversity.

The position has a light teaching load (one class per year) to enable the Fellow to focus on advancing their research agenda, scholarship (including at least one published article), and other necessary skills in anticipation of seeking a tenure-track, faculty position on the law school teaching market. Faculty are committed to providing the mentoring necessary to help the Fellow to succeed on the legal academic job market and in the legal academy.


–24-month term, starting between July 1- August 10, 2022. 

–Teach one class per year

–$60,000 annual salary plus benefits

–$4,500 annual travel and development fund

–Reimbursement of moving expenses

–Eligibility:  Must have earned JD or PhD degree between January 1, 2012 and July 1, 2022

–Applications are due by February 1, 2022; more information about the position (including application information) is here.

Thomas MitchellBrendan Maher, and Huyen Pham are on the appointments committee for this fellowship.  Please feel free to reach out to any of them with questions. 

Alaska Law Review Vol. 38 — Selected Indian Law Articles



Alaska Native Corporation Endowment Models
Robert Snigaroff & Craig Richards

New settlement trust provisions in the Tax Cuts and Jobs Act of 2017 have significant implications for Alaska Native Corporation (ANC) business longevity and the appropriateness of an operating business model given ANC goals as stated in their missions. The Alaska Native Claims Settlement Act (ANCSA) authorized the creation of for-profit corporations for the benefit of Alaska Native shareholders. But for Alaska Natives, cultural continuation was and continues to be a desired goal. Considering the typical life span of U.S. corporations and the inevitability of eventual failure, the for-profit corporate model is inconsistent with aspects of the ANC mission. Settlement trust amendments to ANCSA facilitate ANC cultural continuation goals solving the problem of business viability risk. We make a normative case that ANCs should consider increasing endowment business activity. We also discuss the Alaska Permanent Fund and lessons that those structuring settlement trusts might learn from literature on sovereign wealth funds and endowments.

Alaska’s Tribal Trust Lands: A Forgotten History
Kyle E. Scherer

Since the enactment of the Alaska Native Claims Settlement Act in 1971, there has been significant debate over whether the Secretary of the Interior should accept land in trust for the benefit of federally recognized tribes in Alaska. A number of legal opinions have considered the issue and have reached starkly different conclusions. In 2017, the United States accepted in trust a small parcel of land in Craig, Alaska. This affirmative decision drew strong reactions from both sides of the argument. Notably absent from the conversation, however, was any mention or discussion of Alaska’s existing trust parcels. Hidden in plain sight, their stories reflect the complicated history of federal Indian policy in Alaska, and inform the debate over the consequences of any future acquisitions.


Selective Justice: A Crisis of Missing and Murdered Alaska Native Women
Megan Mallonee

Across the country, Indigenous women are murdered more than any other population and go missing at disproportionate rates. This crisis of missing and murdered Indigenous women is amplified in Alaska, where the vast landscape, a confusing jurisdictional scheme, and a history of systemic racism all create significant barriers to justice for Alaska Native women. This Note examines the roots of the crisis and calls for a holistic response that acknowledges the role of colonialism, Indigenous genocide, and governmental failures. While this Note focuses on the epidemic of violence against Alaska Native women in particular, it seeks to provide solutions that will increase the visibility and protection of Indigenous women throughout North America.

“If a person is murdered in the village, you’ll be lucky if someone comes in three, four days to work the murder site and gather what needs to be gathered so you can figure out a case later . . . but if you shoot a moose out of season, you’re going to get two brownshirts there that day.”

On Becoming an American Indian Law Professor: 2021 Update



There are less than three dozen American Indians who are enrolled tribal members who are tenure system law professors in American law schools. We study this group, as well as a few known tribal members who have either retired or left the academy for loftier pursuits, for purposes of identifying the profiles of tribally enrolled American Indians on the tenure track in American law schools. The object of this short paper is to advise American Indian law students and others on how to become an American Indian law professor. This paper is an update from a 2012 paper:

Prepared in anticipation of the “Transforming the Legal Academy” conference.