Here:
Question presented:
Whether the United States can regulate fishing on Alaska’s navigable waters under the Alaska National Interest Lands Conservation Act, when its statutory authority is limited to “public lands” and that term is defined as “lands, waters, and interests therein … the title to which is in the United States.”
Lower court materials here.
John LaVelle has published “Uses and Abuses of Johnson v. M’Intosh in Native American Land Rights Cases: Investigative Insights from the Indian Law Justice Files” in the Montana Law Review.
Here is the abstract:
The 200th anniversary of the foundational Indian law decision Johnson v. M’Intosh has come and gone, with many scholars contributing criticism and commentary. The dominant focus has been the case’s notorious embrace of the so-called “doctrine of discovery,” an odious theory for rationalizing European nations’ claims of superior rights to lands occupied by Indigenous Native American peoples. Commanding less attention, however, is the Johnson decision’s core protective legal feature, i.e., its reinforcing the United States government’s duty to guard against the alienation of Indian lands through private, unauthorized acquisitions.
This Article offers a somewhat different appraisal of Johnson v. M’Intosh in the context of controversies over Indigenous rights. Notwithstanding the case’s offensive dicta, the unanimous Johnson opinion retains efficacy in safeguarding Native American land rights, provided certain infamous abuses of the decision as precedent can be identified and rectified. Accordingly, this Article examines instances of the modern Supreme Court’s distorting and misusing Johnson v. M’Intosh to damage, weaken, or deny Indian land rights. In centering attention on this abuse, the Article draws on eye‑opening, seldom‑viewed documents found among the papers of Supreme Court Justices archived at the Library of Congress and various universities across the country. The Article also discusses a series of modern‑era opinions by Supreme Court Justices that exemplify instructive conformity to and reliance upon Johnson’s protective features. Moreover, as a response to the joint call for papers issued by the Montana Law Review and the Public Land & Resources Law Review, the Article does not take merely a rear‑view‑mirror look at Johnson v. M’Intosh. Rather, this Article aspires to cast light on judicial distortions and misrepresentations of Johnson to help illuminate a “Vision for the Future” in legal battles over Indigenous property rights.
An accompanying Compendium of Exhibits from the Papers of Supreme Court Justices is available here.
Here is the brief in Landor v. Louisiana Dept. of Corrections and Public Safety:
Here:
John P. LaVelle, Compendium of Exhibits From the Papers of Supreme Court Justices, 88 Mont L. Rev. Online (2025).
Here:
Question presented:
Whether a state may exercise criminal jurisdiction over an Indian for conduct in Indian country absent a valid congressional grant of authority.
Lower court materials here.
Erica Liu has published “The Cartographic Court” in the NYU Law Review.
Here is the abstract:
Over the past few decades, the Supreme Court of the United States has adopted an exceedingly narrow view of tribal civil jurisdiction, establishing doctrines that restrict the circumstances in which Native Nations can exercise their regulatory and adjudicative powers. While most scholarship in federal Indian law has assessed this judicial trend towards tribal disempowerment by focusing on the Court’s treatment of tribal sovereignty, this Note centers the Court’s manipulation of tribal territory. It argues that the Court has constructed three territorial incongruities—non-Indian fee lands, public access, and loss of “Indian” character—to justify the disallowance of tribal authority over significant portions of tribal reservations. In so doing, the Court relies on a spatial imaginary of territorial sovereignty, or the notion that sovereign power must be commensurate with sovereign domain, to present certain spaces as falling outside of a Native Nation’s territory and, accordingly, as beyond the reach of its jurisdictional power.
By illuminating the spatial imagination of the Supreme Court, this Note identifies a key practice employed by the Court that is central to empires past and present— cartography. The Court superimposes its own imagined legal geography upon the preexisting system of territorial division, redrawing the jurisdictional boundaries that separate states and Native Nations. This practice of spatial manipulation is cartographic in that it allows the Court to determine and limit the territory of tribal rule; to expand the areal authority of state jurisdiction; and to project its particular vision of reservation lands—a vision defined by notions of ownership, accessibility, and character—upon Indian country. These cartographic tactics of territorial acquisition and control are in direct furtherance of the American colonial project. They fragment tribal regulatory regimes, reify Indigenous life, and transfer congressional power to the Court to diminish tribal reservations. These practices of fragmentation, reification, and de facto diminishment are continuations of the repudiated but never-undone federal policy of allotment, although the main perpetrator is now the Court rather than Congress.
By turning to critical legal geography and theories of space and power, this Note reveals a Supreme Court that is highly imaginative, overtly spatial, and problematically cartographic in nature, engaged in a project of colonial expansion across its tribal civil jurisdiction cases.
Gregory Ablavsky has published “Structural Federal Indian Law after Brackeen” in the Arizona Law Review. PDF
The abstract:
“You know, when it comes to Indian law, most of the time we’re just making it up,” Justice Scalia once observed. This admission echoed long-standing critiques of the Supreme Court’s jurisprudence in the field, but these anxieties did not trouble the Court—until recently. Over the past two decades, the Court has begun to revisit the field’s foundations, culminating in the Court’s 2023 decision in Haaland v. Brackeen, which upheld the Indian Child Welfare Act against a constitutional challenge. Though the Court upheld the law, the majority pleaded for a “theory for rationalizing this body of law.” Justices Gorsuch and Thomas, each writing separately and at length, offered sharply different visions that would dramatically remake current doctrine.
Rather than providing a single theory, this Article tries to make sense of this current moment of “confusion” in federal Indian law, in the Brackeen majority’s language, by putting the field in dialogue with structural constitutional law. The fields have much in common: both deal with legal rules governing the distribution of governmental authority, and both confront the frequent absence of textual guidance. But in structural constitutional law—which rarely considers the authority of Native nations—the Court has developed a clearer and more fully articulated methodology for resolving this problem of textual underdetermination.
Extending this approach to federal Indian law, I argue, could produce greater clarity and rigor in the field. In particular, this method yields what I term two answers that the federal government has posited over its history to the interrelated questions of federal, Native, and state authority. I then use this framework to evaluate the visions for federal Indian law announced in Brackeen, all of which elide or submerge the jurisprudential choices that assessing these conflicting answers requires. I conclude by offering some thoughts on how Native nations and their advocates might confront this current moment of uncertainty and debate within the Court’s Indian law jurisprudence.
Here:
Questions presented:
Whether the District Court violated Petitioners’ due process rights by granting summary judgment without first fulfilling its gatekeeping obligation under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to rule on the parties’ pending motions to exclude or limit expert testimony?
Whether the District Court erred by relying on the Respondents’ expert witness in its summary judgment decision without first addressing the Petitioners’ motion to exclude or limit Respondents’ expert’s testimony under Daubert?
Whether the District Court violated Petitioners’ due process rights by failing to conduct an in camera review of 4,780 documents withheld by Respondents under claims of privilege, despite having ordered such a review and having possession of the documents since May 2019?
Whether the Court improperly analyzed the Andros Treaty by not finding the Treaty ambiguous and conducting the Indian Canons analysis?
Whether the Court misapprehended the law in finding the Andros Treaty not valid under Federal law?
Lower court materials here.
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