Wenona Singel has published “The First Federalists” in the Drake Law Review.

Here is the abstract:

One aspect of federalism’s values that scholars and the courts have largely ignored is their relevance to tribal governance. As sovereigns within the United States that govern with a measure of de jure autonomy, Indian tribes are important agents of self-rule within the United States’ federal system. The tribal exercise of sovereignty, while not part of the constitutional design of federalism in the United States, is nevertheless an example of the principles of federalism in operation.

However, Indian tribes do not receive any accommodation on account of their ability to promote the values of federalism. On the contrary, in dicta that often overshadow the judiciary’s formalist doctrinal analyses, courts regularly portray tribal governance as dangerously foreign, destabilizing, and undemocratic. From a federalism standpoint, this criticism is perplexing because diversity, pluralism, innovation, and experimentation are core values that our judiciary and legal profession expressly endorse. The judiciary’s dismissive characterization of tribal governance and its segregation of tribes from discussions of federalism’s values are also striking, given that federalism existed within tribal governing structures long before it was adopted within the U.S. Constitution. Tribes are the nation’s first federalists, and they continue to engage in federalism as members of the U.S. federal system.

By focusing on the intersection of tribal governance, federalism’s values, and the judiciary’s role in determining the proper allocation of federal, state, and tribal authority, this Article reveals that federalism is not a neutral norm that is equally applied to subnational sovereigns who engage in the act of governance. Despite federalism’s theoretical support of diversity, pluralism, innovation, and experimentation, in reality, federalism is applied within a bounded and highly policed realm. For those sovereigns within federalism’s protected space, diversity and innovation are theoretically promoted. For those sovereigns who exhibit federalism yet who are not part of federalism’s constitutional design, governance reflecting authentic cultural diversity is confined and limited to an increasingly narrow sphere. This Article discusses this dynamic and calls for an engagement of federalism’s values in judicial review of tribal jurisdictional disputes. This recommendation, if followed, will serve the nation and tribal communities by empowering rather than thwarting the exercise of effective governance.