On May 15, 2026, the Native Hawaiian Legal Corporation (NHLC), the Native American Rights Fund (NARF), and Hobbs, Straus, Dean & Walker, LLP filed a Motion to Intervene on behalf of Papa Ola Lōkahi in a federal lawsuit challenging the constitutionality of the Native Hawaiian Health Scholarship Program. The lawsuit, brought by Do No Harm, targets a program rooted in Congress’s longstanding recognition of the United States government’s trust responsibilities to Native Hawaiians.
Native Americans pay taxes. Territories, by contrast, tax in place of the federal government. Both live with the legacy of American imperialism. Both seek the elusive fiscal self-governance and autonomy promised by Congress. The Supreme Court—through preemption, the plenary power doctrine, and interpretive principles—has hollowed out the Native tax base, forcing tribes to compete fiercely with Congress, states, and localities for revenue. By contrast, territorial residents pay no federal or state taxes on territorially sourced income by edicts of Congress and geography. But such tax exemption enabled the creation of incentive regimes that have only invited more criticism as entrenching subordination. This Article argues that the conceptual underpinnings of the divergent tax treatment of tribes and territories are unsound. Under a more robust vision of fiscal autonomy, judicial limits on Native tax sovereignty are misguided. The territories’ wide latitude in designing revenue streams merits increased scrutiny. While imperfect, a uniform, nonrefundable federal income-tax credit for tribal and territorial taxes paid is a promising path forward. This Article thus provides the first systematic study of subfederal taxation beyond states and localities—the “other” American taxation often overlooked in scholarship.
Does a state court have to enforce a judgment issued by a tribal court? In 1991 the Arizona Supreme Court surveyed the current treatment of tribal court judgments and concluded that a majority of courts “extend[ ] the application of the full faith and credit clause” to decisions rendered by tribal courts. Just fifteen years later the Southern District of Florida castigated the Miccosukee Tribe for making the same representation; reasoning that “the clear majority of states addressing the issue have concluded that Indian tribes” are outside of the Full Faith and Credit Statute.
This Article corrects the judicial record. First, it actually surveys the split among state laws and concludes that most states that have considered the issue treat tribal court judgments as enforceable beyond the traditional comity extended to judgments from foreign courts, although not all of these states describe this recognition as full faith and credit. Second, it makes a normative argument, suggesting that the Supreme Court’s recent decision in a relatively obscure bankruptcy case, Lac du Flambeau v. Coughlin, actually resolves the conflict and mandates that state courts extend full faith and credit to tribal court judgments. Finally, the Article considers the limited enumerated powers of Congress and the federal courts, to suggest that while states must give full faith and credit to tribal court judgments, tribes are free to decide for themselves whether to reciprocally recognize state court judgments.
The implications are profound. The judicial record is replete with hundreds of cases, across dozens of states, searching for guidance on the scope of the Full Faith and Credit Statute when applied to Indian tribes. There is a circuit split. There are federal courts refusing to comply with nineteenth century Supreme Court precedent that has never been overturned. The congressional response has been piecemeal, requiring full faith and credit in specific circumstances, without ever articulating a standard for the recognition of other tribal court judgments. This Article unifies history and practice, statute and precedent, to articulate a single consolidated theory of the recognition of tribal court judgments.
American Indian women in the legal academy have stepped in to fight this persistent othering and invisibility in the law: through service, scholarship, and tenacious advocacy. In doing so, they have created Indigenous feminist spaces whereby Native people can resist intellectual and social assimilation to varying degrees. Sarah Deer (Muscogee Nation) argued prophetically in 2019, “to cultivate future feminist interventions in Indian law, I contend we must do more to recruit and support Native women law students, and, ultimately, more Native women law professors.” In Native communities, “auntie” is a term of endearment for Indigenous women, often women who take positions of leadership: cultural, social, professional, or otherwise. The term encompasses blood relatives but also extends beyond them to accommodate expansive Indigenous philosophies of kinship and community care. As Laurel Goodluck (Tsimshian Tribe) describes her children’s book “Fierce Aunties,” aunties come in a variety of shapes, sizes, experiences, and backgrounds, but what these fierce aunties share is “[they] see you, they know you, and they love all of you, always.” Aunties are who you go to for guidance, advice, support, and courage. Native women entering the legal academy today are heirs to a generation of Native aunties who have toiled to build communities and infrastructures to support Native students and Indian law education. I call them the “Indian law aunties.” Native women in the legal academy (the “Indian law aunties”) resist invisibility through labor, advocacy, and institution-building for the Native women coming into law behind them. They have paved the way for future generations of Native women scholars through their unapologetically indigenous feminist interventions. This Essay seeks to name the othering and disappearing of Native women within U.S. settler colonialism, contextualize the invisibility of Native women in the academy, honor the interventions of the Indian law aunties, and advocate for a more equitable future where the labor is not theirs alone.
In nine treaties signed by Tribal Nations and the United States between 1867 and 1868, the United States promised redress to Native Americans for wrongs committed against them by “bad men among the whites.” Today, Native Americans are more likely to be killed by police than any other group, with much of this violence concentrated near the borders of Tribal Nations. Although claims brought under the “bad men” treaty clauses offer an avenue for combatting this epidemic of violence, courts have begun interpreting the clauses to apply only when “wrongs” occur within Tribal boundaries. This article argues that the territoriality of the bad men clauses should be read broadly to encompass violence committed outside of Tribal boundaries to address the disproportionate police violence against Native Americans that occurs there.
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.
Philosophers have widely debated and defended nonanthropocentric environmental ethics. However, nonanthropocentrism rarely features in philosophical climate ethics, which has been largely anthropocentric in focus. In contrast, Indigenous peoples throughout the world have offered a diverse array of arguments for climate action-arguments intent on achieving impact at scale-but that hinge on nonanthropocentric environmental ethics, often in relation to Indigenous peoples’ own institutions for taking care of the environment, or ‘caretaking institutions’. These arguments contain claims, based on nonanthropocentric ideas, about how climate action can be scaled up through Indigenous caretaking institutions. Additionally, one of the successful measures some Indigenous peoples have taken to scale up climate action is to carve out formal spaces in national and multilateral institutions for philosophizing about nonanthropocentric ethics and climate action. Climate ethicists should consider the contribution Indigenous peoples are making in developing nonanthropocentric ethics for climate action, both for developing philosophical approaches and for the actual mitigation of climate change ‘at scale’.
Trevor Reed has posted “The Intangible NAGPRA,” forthcoming in the Maryland Law Review, on SSRN.
Here is the abstract:
Following a 2023 regulatory update, the Native American Graves Protection and Repatriation Act (“NAGPRA”) of 1990, which recognizes Tribal Nations’ ownership interests in their ancestors and artifacts, now expressly includes a controversial public display right that has shuttered museum displays across the country. Though functionally similar to widely criticized provisions of Italian cultural heritage law, I argue that the new regulations are justifiable given the unique status of Tribal Nations in U.S. constitutional law and Congress’s intent to negotiate a remedy for long-standing human rights abuses. Indeed, the Intangible NAGPRA is precisely what Tribal representatives on the Congressionally mandated year-long Panel for a National Dialogue on Museum/Native American Relations believed they were working toward in the lead-up to NAGPRA’s passage. Thus, this paper encourages the continued exercise of Indigenous peoples’ rights to protect their ancestors, belongings, sacred and cultural materials and the corresponding intellectual property rights that pertain to them.
Highly recommended. This is highly original and thoughtful scholarship on tribal law and the important role it plays in American legal theory.
Here is the abstract:
By standard accounts, there are fifty-four constitutions across the federal, state, and territorial governments of the United States. But in fact, there are 230 other governmental constitutions that currently govern peoples and territories within the United States. These constitutions not only flow from a sovereignty that existed prior to the United States but also came out of a legal movement that asserted its independence from both the U.S. Constitution and state constitutions. This Article tells the story of these constitutions — the constitutions of Native nations. Having existed for over two centuries with an archive of thousands of constitutional documents and amendments, tribal constitutions have been left out of the narratives of American constitutional history while being obscured within the fields of American constitutional law and federal Indian law. This Article corrects these oversights and calls for the recognition of a tradition of “Indigenous constitutionalism” in the United States. This Article’s aims are both theoretical and historical. On one hand, it conceptualizes Indigenous constitutionalism as a distinct and shared constitutional practice through which Native nations claim and exercise self-governance while embedded in the wider constitutional — and colonial — landscape of the United States. On the other hand, this Article draws Indigenous constitutionalism’s features from the two-hundred-year history of tribal constitutions. It explores, for the first time, three major eras of tribal constitutional development: the first constitutions during the early nineteenth-century period of Indian Removal, the explosion of constitutions under the Indian Reorganization Act in the early twentieth century, and the movement for tribal constitutional reform that has stretched from the late twentieth century to today. But this Article also brings theory and history together to rethink the prevalent narratives surrounding tribal law, federal Indian law, and American constitutionalism. Indigenous constitutionalism reveals the fundamental and persistent questions around which a tribal constitutional law framework can be constructed. It also revises the origin stories of federal Indian law, demonstrating that the field did not coalesce in isolation from tribal law but was actually cocreated with tribal constitutions. Finally, by placing tribal constitutions into conversation with other American charters, Indigenous constitutionalism disrupts and expands the category of constitutionalism itself. This Article demonstrates that tribal constitutions — unique among American constitutions — showcase how these documents can appear in many forms, function as external-facing declarations of sovereignty, and exist alongside other forms of fundamental law.
Nearly fifty years after its passage, the Indian Child Welfare Act (ICWA) remains a vital part of the child welfare system to protect Native children and families. Since then, both federal and state law have incorporated provisions of ICWA for the benefit of all families in that system. However, ICWA itself is regularly disregarded and misunderstood by practitioners and judicial officers. This Essay describes the application of ICWA in the current child welfare system, as well as identifies programs designed to improve implementation of the law, all from the perspective of an appellate practitioner with twenty years of ICWA experience. While there is no magic wand to wave that can fix the persistent barriers to ICWA enforcement and implementation, the continued work of those committed to changing the current system creates solutions that can benefit Native families and, if history is any guide, ultimately all families.
Turtle Talk 
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