What does it mean to condition federal tax liability on the degree to which a Native American has assimilated? Federal Indian law has long assumed that Native Americans are subject to federal income taxation absent an express exemption. This presumption obscures the complicated history by which Native Americans were incorporated into the federal tax base. While U.S. citizenship alone is not ordinarily dispositive of federal income tax liability, courts have uniquely infused Native citizenship with doctrinal significance, intertwining questions of citizenship, assimilation, sovereignty, and taxation. In doing so, they have neglected the legal reality that Native Americans hold dual citizenship—as citizens of both the United States and their own Tribal nations.
This Article situates Native tax liability within the longer trajectory of federal Indian law. It traces how allotment policy, noncompetence determinations, and the Indian Citizenship Act of 1924 collectively transformed Native Americans from “Indians not taxed” into presumed taxpayers. Courts initially tethered liability to federal declarations of “competence,” using taxation as a tool of assimilation. Competence itself was understood to mark the extinguishment of Native identity: to be a competent citizen was, in law’s eyes, to cease being Indian. Courts relied on this framework in taxation cases well into the mid-twentieth century. Over time, however, competence gave way to citizenship as the doctrinal touchstone. The Supreme Court entrenched the presumption of Native taxability, narrowing exemptions to allotment-based income while disregarding the unresolved meaning of dual citizenship—the coexistence of U.S. citizenship with continued Tribal citizenship. The result is a jurisprudence that collapses political distinctiveness into presumptive assimilation, as if Native peoples could not simultaneously belong to two sovereigns.
By excavating this history, the Article demonstrates that Native income taxation is neither inevitable nor doctrinally coherent. It argues that courts have misapplied statutory canons by privileging the presumption of taxability over the Indian canons of construction, which require clear congressional intent before imposing taxation on Tribal citizens. More fundamentally, taxation doctrine has failed to account for the implications of Native dual citizenship, erasing the sovereign-to-sovereign relationship that the law otherwise recognizes. The Article concludes by advancing a structural reform: redirecting federal income tax paid by Tribal citizens to their Tribal governments. Modeled on existing provisions such as the foreign tax credit, this reform would affirm Native dual citizenship, strengthen Tribal fiscal capacity, and restore coherence to federal tax law. In reframing taxation not as an instrument of assimilation but as an expression of recognition, federal law can more accurately reflect contemporary commitments to Tribal self-determination.
Torey Dolan has posted “American Indian Geopolitical Rights” on SSRN.
Here is the abstract:
American Indian people hold a unique legal position under the United States Constitution and within American law based on Indian status. This unique relationship at times reflects the cultural, spiritual, and legal ties to land that are unique to American Indians and represent aberrations in American law. This fundamentally impacts the lives and interests of American Indians, including in matters of representational democracy. This paper seeks to contextualize the proscriptive legal ties that American Indians have with land under law, termed herein “Indian Geopolitical Rights.” This paper argues that American Indian Geopolitical Rights reflect not only significant cultural interests of American Indians, but that American Indians have substantive rights that are tied to place that impacts how Indians engage with democratic systems and conceive of political representation. As such, the needs of American Indians necessitate a consideration of Indian geopolitical rights in the development, maintenance, and implementation of local, state, and federal electoral systems. This paper argues that Indian geopolitical rights are incumbent upon states, that election law doctrine is currently ill-equipped to protect Indian geopolitical rights, and incorporating Indian geopolitical rights is consistent with the U.S. Constitution and its principles of federalism.
From April 2016 until February 2017, thousands of people gathered along the Cannonball River on the border of the Standing Rock Sioux Reservation to protest the construction of the Dakota Access Pipeline. In response, state officials tried to close down roads leading to the Reservation, considered legislation that would immunize drivers who struck protesters with vehicles, and arrested hundreds of peaceful demonstrators. The #NoDAPL protests built upon a legacy of resistance by Indigenous communities against the actions of the United States. While the history of Indigenous resistance predates the nation’s founding, the power to police protest activities on tribal lands has changed markedly.
This Symposium Piece considers the right to protest in Indian country. It confronts the framework that apportions regulatory and adjudicatory power over protest activity occurring on tribal land and suggests that such regulation ought to be left entirely to the tribal sovereign. Alternatively, it argues that state regulation of protest activity in Indian country is an infringement on tribal governments’ right to make their own laws or is otherwise preempted by overwhelming tribal and federal interests. This Piece further recognizes that while the United States could impose regulations on protest activity, there are strong prudential factors that suggest it should defer regulation to the tribal sovereign. By subjecting the right to protest in Indian country solely to regulations imposed by tribal government, the United States would be respecting tribal sovereignty.
Turtle Talk 
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