Fletcher Visits PLSI 2025
Greg Ablavsky on Structural Federal Indian Law
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.
American Indian Law Review, Vol. 49, No. 1
Here:
Current Issue: Volume 49, Number 1 (2025)
Essay
Institutions and Economic Development
Ezra Rosser
Comments
Notes
The Native Fight for Hunting Rights: The Crow Tribe and Herrera v. Wyoming
Jacob Lewis
Special Feature
The Need for Law in Federal Indian Law: A Response to Maggie Blackhawk in Light of the Supreme Court’s Troubling Term for Tribal Sovereignty
Nicholas B. Mauer
California Federal Court Rejects Chukchansi Disenrollees’ Effort to Reopen Tillie Hardwick Case
Here are the new materials in Hardwick v. United States (N.D. Cal.):
Kansas Federal Court Rejects Motion to Dismiss Prairie Band Suit against County Sheriff
Shinnecock Nation Sues Town of Southampton over Zoning and Land Use Regs on Tribe’s Restricted Fee Land
Here is the complaint in Shinnecock Indian Nation v. Town of Southampton (E.D. N.Y.):
Ninth Circuit Rejects Chinook Recognition Bid
Tribal Amicus Brief in Third Circuit Appeal re: Company Using Event Contracts (Derivatives) to Engage in Sports Gambling
Here is the brief in Kalshiex LLC v. Flaherty:
Lower court opinion:
Daniel Rice on the Moral Complacency of Federal NDN Law
Daniel B. Rice has posted “The Moral Complacency of Federal Indian Law,” forthcoming from the Minnesota Law Review, on SSRN.
Here is the abstract:
For all its association with historical tragedy, federal Indian law remains thoroughly amoral. The field draws little distinction between horrific and laudable traditions. In sharp contrast with the Court’s equality doctrines, Indian law continues to rest on explicit structural subordination. Its core precepts tolerate the worst forms of historical treachery and cultural annihilation, treating such practices as legally generative in the present. This Article identifies Indian law’s moral vacuity as an unexplained and unjustified aberration. It urges the Court to speak and theorize about Indian law in a register befitting the subject’s moral gravity.
The Article offers a trio of explanations for Indian law’s enduring amorality—ones focused on reliance interests, strategic suppression by pro-tribal actors, and a desire to avoid broadcasting uncomfortable truths. It finds these reasons insufficient to justify the Court’s nonrecognition of historical evil. Although full decolonization is by now infeasible, the tonal shift I propose would help distance the Court from colonialism’s wrongs and un-skew the normative atmosphere in which lawyers debate the past’s continuing effects. It would also facilitate incremental reforms that could improve tribes’ litigation prospects dramatically.
In recent years, Justice Gorsuch has shown that Indian law’s moral complacency need not be accepted as natural or inevitable. But I question his insistence that the field can be set aright by adhering to original textual bargains. It is the ethical narratives to which Gorsuch subscribes, rather than his methodological commitments, that hold the promise of tempering Indian law’s most outrageous features. I also critique Gorsuch’s recent suggestion that Indian law contains an “anticanon” whose repudiation would rid the doctrine of its worst excesses. Moral socialization in this field should occur through the rejection of ideas, not the select vilification of cases with complicated legacies.
Silva v. Farrish – Shinnecock Fishing Case Summary Judgment Briefings
Here are the pleadings in Silva v. Farrish (E.D. N.Y.):
152 NCAI and Shinnecock Kelp Farmers Amicus Brief
160 Law and History Professors Amicus Brief
161-11 Pls’ MoL in Supp of SMJ
161-14 Defs’ MoL in Opp’n to Pls’ SMJ
162-1 Defs’ MoL in Support SJM
Prior post here.
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