Scholarship

Geoffrey Heeren on Plenary Power and the Supremacy Clause

February 5, 2026Matthew L.M. Fletcher

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.

Adam Crepelle on the Indian Commerce Clause

February 4, 2026Matthew L.M. Fletcher

Adam Crepelle has published “Applying the Indian Commerce Clause to Indian Commerce” in the Northwestern University Law Review.

Here is the abstract:

Indian country commerce generates tens of billions of dollars annually and is a constant source of litigation. These disputes typically revolve around jurisdictional conflicts: whether states, tribes, or both possess regulatory authority over the business operating in Indian country, particularly those involving non-Indians. Despite numerous court cases, no clear legal framework has emerged, creating pervasive uncertainty regarding fundamental issues, such as state taxation of tribal transactions and the proper forum for resolving Indian country contract disputes. Interestingly, these commercial cases overlook the Indian Commerce Clause—the constitutional provision designed to address such matters.

This Article argues the Indian Commerce Clause prohibits state regulation of Indian country commerce. The clause’s plain text and original understanding support this interpretation. While the Supreme Court departed from this understanding in the late 19th century, it has never adequately justified this shift. During the 1980s, the United States argued the Indian Commerce Clause bars state taxation of tribal commerce, and the Supreme Court rejected this argument with scant judicial reasoning. Consequently, courts continue to rely on ambiguous, fact-specific tests that undermine tribal sovereignty and economic development.

This Article proposes a revitalized application of the Indian Commerce Clause, advocating for a clear, constitutionally grounded framework. By categorically preempting state intrusion into Indian country commerce, this approach would provide the certainty necessary for tribal economic self-determination to flourish. This Article demonstrates how such a framework would resolve the current jurisdictional chaos, offering specific guidance for its implementation and ultimately promoting a more just and equitable relationship between tribes and states.

UCLA Indigenous Peoples’ Journal of Law, Culture & Resistance Call for Submissions

February 2, 2026Matthew L.M. Fletcher

The Indigenous Peoples’ Journal of Law, Culture & Resistance (IPJLCR) is currently accepting submissions for Volume 12, which has a target publication date of Spring 2027. Submissions are being accepted until Sun., March 15, 2026. Email submissions and any questions to: ipjlcr@lawnet.ucla.edu.

IPJLCR is an interdisciplinary law journal housed at the University of California, Los Angeles School of Law that focuses on Indigenous legal issues and publishes scholarly articles, legal commentary, poetry, songs, stories, artwork, and other media. We are soliciting scholarly articles, student comments, and art that centers on or relates to legal issues important to Indigenous communities in the United States and throughout the world. We also seek works on issues or aspects of life in Native communities that are impacted by law, whether tribal law or the laws of nation-states. To access past issues, please visit https://escholarship.org/uc/uclalaw_ipjlcr.

Requirements:

Each submission should be sent as one Microsoft Word file with Bluebook formatted citations (22nd ed. 2025) in footnotes;
Articles should be less than or equal to 50 pages and include 12 pt Times New Roman font for the body of the manuscript, 10 pt Times New Roman font for footnotes, 1-inch margins, and the author’s name, address, phone number, and email address in the header of the first page;
A brief biography.

2026 MLaw Indian Law Workshop — First Two Speakers

February 2, 2026Matthew L.M. Fletcher

More are coming:

Continue reading →

Tulsa Law Review Symposium Issue

January 22, 2026Matthew L.M. Fletcher

Here:

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Fletcher’s Uncertainty Principle
Matthew L.M. Fletcher

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Tribes as Nations: The Future of the Trust Relationship
Adam Crepelle

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The Unenforceable Indian Trust
Ezra Rosser

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The New Existentialism in Indian Law
M. Alexander Pearl

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Fractionation by Design: Remedy Without Repair in Indigenous-Owned Trust Allotments
Jessica A. Shoemaker

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Tribal Co-Management on Ceded Lands: A New Era?
Michael C. Blumm and Adam Eno

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Original Comic: Tribal-Federal Symbiosis—An Aadioozaan
Matthew L.M. Fletcher

Here is the abstract:

We commonly call the last fifty years of federal Indian law and policy the “tribal self-determination era.” This Piece argues that this era is actually three conceptually distinct though temporally overlapping phases of federal Indian law and policy development. Each of these three distinct phases is a step further dismantling the structures of federal paternalism and replacing them with laws and policies that support tribal nations’ strength, capacity, and autonomy. Paternalism has become, therefore, somewhat of an anti–North Star for the transformative federal Indian policies of the last fifty years and can continue to serve as that anti-guiding light for further federal Indian law and policy development. What makes this era challenging and noteworthy is that it is characterized by an instance of something unusual and difficult for a government: a commitment to giving up power.

Now this commitment is at a crossroads. The Biden Administration championed a third phase of policies with traditionally conservative, small government–minded commitments to start shrinking federal government bloat and promoting deference to or cooperation with local tribal decisionmaking. The Trump Administration must decide between conservative impulses to continue this work of shrinking unnecessary federal bureaucracy or more authoritarian impulses to increase the control that funding gives the executive branch over entities like tribal nations that rely on that funding.

Highly, highly recommended! Any forward-looking scholarship in this field is golden and this paper is simply brilliant.

Nazune Menka on Alaska Tribal Sovereignty

January 20, 2026Matthew L.M. Fletcher

Nazune Menka has published “The Corpus Juris of (Alaska Native) Inherent Tribal Sovereignty” in the Alaska Law Review.

Highly recommended!

Here is the abstract:

The inherent Tribal sovereignty of Native nations predates the formation of the United States and is reflected in the constitutional vision of tripartite sovereignty. Yet their sovereignty is oft diminished explicitly by federal law or implicitly by federal courts. This implicit divestiture is often the result of the federal judiciary’s inconsistent interpretations of Indigenous Peoples law. This Article argues that a more principled and coherent approach for federal judges would be to consistently make use of the corpus juris, or whole body of law, including the in pari materia or affiliated statutes canon. The Article posits that the corpus juris of inherent Tribal sovereignty requires understanding whether any federal laws have explicitly abrogated or diminished a specific Native nation’s rights to traditional self-governance and understanding traditional Tribal law. The corpus juris inherent Tribal sovereignty approach illustrates how, where the Supreme Court has utilized the in pari materia canon, the consistency and coherence of Indigenous Peoples law increases. Through an analysis of select cases, involving Native nation traditional land and ways of life, I illustrate how Alaska Native nations have been particularly impacted by the explicit and implicit diminishment of traditional ways of life. However, through traditionally informed governance systems, Alaska Native nations continue to assert their inherent Tribal sovereignty, especially when faced with Alaska’s “sole state sovereignty” arguments in federal courts. The Article utilizes the corpus juris of inherent Tribal sovereignty argument and the constitutional vision of tripartite sovereignty to illustrate how the State of Alaska’s “sole state sovereignty” arguments must fail when utilizing this more coherent approach.