The federal Indian law doctrine of Congressional plenary power is long overdue for an overhaul. Since its troubling nineteenth-century origins in Kagama v. United States (1886), plenary power has justified invasive Congressional interventions and undermined Tribal sovereignty. The doctrine’s legal basis remains a constitutional conundrum. This Article considers the Court’s recent engagement with plenary power in Haaland v. Brackeen (2023). It argues that the Brackeen opinions may signal judidal readiness to reevaluate the doctrine. The Article takes ahold of Justice Gorsuch’s critical assessment and runs with it, ultimately proposing a method for cleaning up this destructive and constitutionally dubious line of caselaw.
Intertribal organizations are a powerful and unheralded element behind recent gains in Indigenous wildlife sovereignty. Key to winning and implementing judicial and political victories, they have also helped tribal nations become powerful voices in wildlife and habitat conservation. Through case studies of these organizations and their impact, this Article shows why intertribal wildlife organizations are necessary and influential, and how the intertribal form reflects a distinct relational approach to wildlife governance. As the first article focused on the intertribal form, moreover, the Article also identifies an unexamined actor in tribal sovereignty and legal change.
Anthropogenic climate change is increasingly causing disruptions to ecological communities upon which Natives have relied for millennia, raising existential threats not only to ecosystems but to Native communities. Yet no analysis has carefully explored how climate change is affecting the governance of tribal ecological lands. This Article closes this scholarly and policy gap, examining the current legal adaptive capacity to manage the effects of ecological change on tribal lands.
The Article first considers interventions to date, finding them to be lacking in even assessing—let alone addressing—climate risks to tribal ecosystem governance. It then carefully explores how climate change raises distinctive risks and advantages to tribal governance as compared to federal and state approaches. Relying in part on the review of publicly available tribal plans, the paper details how tribal adaptation planning to date has fared.
In particular, the Article delves into the substantive, procedural, and structural aspects of tribal governance, focusing on climate change and ecological adaptation. Substantively, tribal governance often tends to be considerably less wedded to conservation goals and strategies that rely on “natural” preservation, and many tribes focus less on maximizing yield in favor of more flexible objectives that may be more congruent with adaptation. Procedurally, like other authorities, many tribal governments could better integrate adaptive management and meaningful public participation into adaptation processes, yet some tribes serve as exemplars for doing so (as well as for integrating traditional ecological knowledge with Western science). Structurally, tribal ecological land governance should continue to tap the advantages of decentralized tribal authority but complementing it through more robust (1) federal roles in funding and information dissemination, and (2) intergovernmental coordination, assuming other governments will respect tribal sovereignty. The Article concludes by identifying areas in which tribal management might serve as valuable exemplars for adaptation governance more generally, as well as areas for which additional work would be helpful.
Twenty years ago the Supreme Court misread its precedents and took a short cut to do what was “simpler” instead of what was right. It determined that tribal courts are not courts of general jurisdiction without examining the origins of tribal judicial power. Writing for the majority in Nevada v. Hicks, Justice Scalia concluded that in order to find that tribal courts were able to interpret federal law the Court would have to “attribute to tribal courts jurisdiction that is not apparent.” But power often exists even if it is not apparent at first glance. Unwilling to do even a cursory examination to determine whether tribal courts might nonetheless possess general jurisdiction, the Court decided that it would be “surely [ ] simpler… to conclude that tribal courts cannot entertain” claims arising under federal law. This article objects to the legal principle that tribes cannot exercise their inherent sovereign powers because it would “simpler” for the Supreme Court.
In Hicks, the Court abdicated its responsibility by not engaging in an analysis of the origins of the judicial power exercised by tribal courts. Under the principles of inherent sovereignty it is the tribal sovereign and not the Supreme Court that controls the jurisdiction of tribal courts. If a tribal government vests in its judicial department the authority to interpret federal law, then the tribal court maintains that power until withdrawn by the tribal sovereign. This article further argues that the Court in Hicks exceeded its Article III exercise of the judicial power to attempt to limit – against the will of the tribal sovereign – the general jurisdiction of tribal courts. It concludes by encouraging tribal governments to decide for themselves whether they want their courts to interpret federal law. If the tribal sovereign assigns that power to its courts, then tribal courts should begin affirmatively exercising general jurisdiction despite the Hicks precedent.
Anthony Hernandez has published “Tribal Trademark Law” in the Stanford Law Review. Here is the abstract:
Native American tribes are increasingly creating their own intellectual and cultural property statutes. Of all the new legislation, tribal trademark law in particular is an engaging yet understudied area. By studying tribal trademark law, it becomes possible to evaluate the nature and scope of tribal sovereignty. And studying tribal trademark law provides an opportunity to consider how federal trademark law might incorporate tribal innovations. Situated at the intersection of tribal law, intellectual property, and tribal sovereignty, this Note asks whether the federal government is prepared to incorporate and recognize tribal trademark law in the same way that it has done for states’ laws.
In this article, I explore the concept of Tribal self-determination in the context of healthcare systems that serve American Indian and Alaska Native communities. I investigate the vast health disparities that exist in Tribal communities, as well as the history and current legal framework for the provision of health care in Indian Country. Part of this discussion also provides information on the federal laws and policies that have fractured the traditional lifeways of Native communities and contributed to the disparate health outcomes that now exist. I also provide background on the fundamental federal laws and policies, particularly the Indian Self-Determination and Education Assistance Act of 1975, that have facilitated greater Tribal control over programs and services for Tribal communities, including health systems. Tribally-managed health systems can, and are, playing a crucial role in closing this health gap.
This article also positions the status of Native communities in the United States within the global dialogue of the rights of indigenous peoples and the right to health, as indigenous communities subjected to settler-colonial states are demonstrably experiencing similar disparate outcomes. This discussion includes background on the international legal framework for the right to the highest attainable standard of health, the rights of indigenous peoples, and the social determinants of health, some of which are arguably unique to indigenous communities. The article explores these concepts for the lessons that may be garnered for the benefit of Tribal health systems. However, the article also argues that Tribes that are successfully operating healthcare systems have their own lessons to offer the global community regarding providing quality care and bringing American Indian and Alaska Native communities closer to actualizing the highest attainable standard of health.
Ilanoli isht unowa. We tell our own stories. A single historical event has many stories. Although this nation’s official chronicle expected and even hoped for Indigenous peoples to fade away, we are still here. Our histories are marked by resistance, survival, sovereignty, and renaissance. Only now, in the later stages of the American experiment, do our histories have the chance to matter in new forms and spaces. How much these stories matter within contemporary contexts depends upon where they are spoken and more importantly, who is listening. On the pages of a U.S. Supreme Court opinion, what stories are told can make all the difference between advancing age-old rights and defending the very right to exist. In almost all Supreme Court opinions dealing with tribal nations, the stories from outsider perspectives dominate the narratives, affecting the construction of facts and the application of abstract legal principles. When beginning with a contrived image, it comes as no surprise that the lens of law will only further exaggerate those inaccuracies through a judicial opinion. The stories of tribal nations found in judicial opinions are like a fun house mirror—a misrepresentation of them. This warped version of Indigenous history is the American Mythology from which the federal common law derives its conceptualization of Indian tribes. But Supreme Court opinions need not continue this tradition of misrepresentation. They could instead detail history from Indigenous viewpoints, wherein Indigenous stories take on new relevance and legal import. This Article offers a methodological solution as an alternative to the Court’s current approach and provides evidence from recent opinions for why this option is more than wishful thinking.
What duties do Americans owe the state? Today, this question seems almost incomprehensible. Compulsions in the common interest are received coolly in our rights-obsessed culture, and the Supreme Court has never announced a framework for identifying the burdens of citizenship. Yet the concept of civic duty has played a central role in America’s constitutional tradition. From shoveling snow to repairing roads to fighting overseas, private individuals have long been forced to serve the public in ways menial and profound. Strangely, the discourse of obligation that legitimated numerous compulsions has largely faded from professional view. Judges’ mawkish tributes to liberty pay no heed to the magnitude of state-ordered servitude.
This collective forgetting has not eliminated the need to reason about civic duties, however. Courts continue to review compulsions grounded in contested visions of social obligation. In ruling on the Affordable Care Act’s individual mandate, for example, the Supreme Court seriously impeded Congress from implementing novel conceptions of civic duty. This hostility closely tracks a leading scholarly account of civic duties as fixed by historical tradition. According to this narrative, living Americans are powerless to alter the basic obligations of citizenship.
This Article corrects the historical record by documenting how civic duties have developed over time. The evidence reveals that these obligations are constantly in motion; society has constructed, reshaped, and discarded them in decades-long struggles over the meaning of freedom. Put simply, the duties of citizenship are not fixed features of our constitutional order. They are necessarily—and properly—responsive to moral and cultural change. These findings undercut the Court’s use of rigid historical methodologies for reviewing laws that tacitly presume the existence of duties owed to the public. Most prominently, abortion restrictions compel women to continue their pregnancies in service of state-defined goals. And a panoramic view of civic duties casts new light on congressional efforts to preserve Indian tribes as flourishing governments. The federal Indian Child Welfare Act draws conceptual support from compulsory education and military conscription, both of which have long prioritized communal survival over individual choice.
Turtle Talk 
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