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.