Introduction

The Supreme Court is accumulating power. Call it “concentrating power in the court,” 1Open this footnote Close this footnote 1 Mark A. Lemley, The Imperial Supreme Court, 136 Harv. L. Rev. F. 97, 98 (2022). …Open this footnote Close a “judicial power grab,” 2Open this footnote Close this footnote 2 Josh Chafetz, The New Judicial Power Grab, 67 St. Louis U. L.J. 635 (2023); cf. Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic 22 (1st trade paperback ed. 2024) (describing the Court’s use of the non-merits docket as a “power grab”). …Open this footnote Close or (as a growing number of scholars are calling it) “judicial aggrandizement” 3Open this footnote Close this footnote 3 E.g., Jason Marisam, Judicial Preferences and Aggrandizement Effects, 14 ConLawNOW 1 (2024); Allen C. Sumrall & Beau J. Baumann, Clarifying Judicial Aggrandizement, 172 U. Pa. L. Rev. Online 24 (2023); Allen C. Sumrall, Nondelegation and Judicial Aggrandizement, 15 Elon L. Rev. 1 (2023); Josh Chafetz, Nixon/Trump: Strategies of Judicial Aggrandizement, 110 Geo. L.J. 125 (2021). …Open this footnote Close or “judicial self-aggrandizement.” 4Open this footnote Close this footnote 4 E.g., Sumrall, supra note 3, at 28-29 (distinguishing “judicial self-aggrandizement” from other forces that might expand the power of the judiciary); Beau J. Baumann, Americana Administrative Law, 111 Geo. L.J. 465, 485, 494, 496 (2023). …Open this footnote Close Each of these ideas describes a Supreme Court that is upsetting accepted notions of the separation of powers—accumulating power for itself, often at the direct expense of Congress and the Executive. 5Open this footnote Close this footnote 5 Lemley, supra note 1, at 97. …Open this footnote Close And this perceived power grab extends across a variety of different public law domains, including presidential immunity, 6Open this footnote Close this footnote 6 See generally Chafetz, supra note 3, at 129-44. …Open this footnote Close administrative law, 7Open this footnote Close this footnote 7 Chafetz, supra note 2, at 648-52. See generally Baumafnn, supra note 4; Sumrall, supra note 3. …Open this footnote Close election law, 8Open this footnote Close this footnote 8 Chafetz, supra note 2, at 637-40. …Open this footnote Close and Congressional oversight. 9Open this footnote Close this footnote 9 Id. at 640-48. …Open this footnote Close Even some who are skeptical of the “judicial aggrandizement” framing 10Open this footnote Close this footnote 10 Andrew Coan, Too Much, Too Quickly?, 58 U.C. Davis L. Rev. 407, 463, 486 (2024) (articulating criticisms of “context-sensitive gradualism,” including the judicial aggrandizement literature). …Open this footnote Close acknowledge that the current Supreme Court has wrought extraordinary changes in the law in a short period of time. 11Open this footnote Close this footnote 11 Id. at 409, 487. …Open this footnote Close

But one body of public law stands in contrast to this trend: Federal Indian Law. 12Open this footnote Close this footnote 12 “Federal Indian Law” is the body of federal law that situates Indian tribes and Indians within the American constitutional framework; it is distinguished from Tribal Law, which is the bodies of laws by which Indian tribes govern themselves, their members, and those within their territories. See generally Elizabeth A. Reese, The Other American Law, 73 Stan. L. Rev. 555 (2021). This Essay uses “Indian tribe” and “Indian” to describe the polities and peoples indigenous to the United States. These are the terms used in the U.S. Constitution, e.g., U.S. Const. art. I, § 8, cl. 3 (Commerce Clause, referring to “the Indian Tribes”), and in most federal statutes, e.g., Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963; Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721; Indian Self-Determination and Education Assistance Act, 25 U.S.C. §§ 5301-5423. …Open this footnote Close Recent Federal Indian Law cases have reinforced traditional notions of the separation of powers and the primacy of Congress, whether those cases were decided in favor of Tribal interests 13Open this footnote Close this footnote 13 Haaland v. Brackeen, 143 S. Ct. 1609, 1623 (2023) (ICWA neither exceeds Congress’s Article I power nor commandeers states); Ysleta del Sur Pueblo v. Texas, 142 S. Ct. 1929, 1934 (2022) (the Tribe’s Restoration Act does not subject the tribe to the state’s gaming regulations); United States v. Cooley, 141 S. Ct. 1638, 1641 (2021) (affirming the tribe’s police authority to detain and search non-Indians on public rights-of-way through a reservation); McGirt v. Oklahoma, 140 S. Ct. 2452, 2459 (2020) (the subject reservation was never disestablished and remains “Indian country” for the Major Crimes Act); Herrera v. Wyoming, 139 S. Ct. 1686, 1691-92 (2019) (the Crow Tribe retains treaty hunting rights on “unoccupied lands of the United States” and issue preclusion does not bar petitioner’s argument); Wash. State Dep’t of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 1006 (2019) (Tribal business is immune from state tax on fuel transport over state highways); Upper Skagit Indian Tribe v. Lundgren, 138 S. Ct. 1649, 1652 (2018) (the Tribe’s sovereign immunity is not abrogated by the in rem nature of the suit). …Open this footnote Close or against them. 14Open this footnote Close this footnote 14 Arizona v. Navajo Nation, 143 S. Ct. 1804, 1810 (2023) (rejecting a breach of trust claim that sought determination of the Tribe’s water rights); Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 143 S. Ct. 1689, 1694 (2023) (the Bankruptcy Code unambiguously abrogates Indian tribes’ sovereign immunity); Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2491 (2022) (the General Crimes Act does not preempt state jurisdiction over crimes committed by non-Indians against Indians in Indian country); Yellen v. Confederated Tribes of the Chehalis Rsrv., 141 S. Ct. 2434, 2438 (2021) (Alaska Native Corporations are “Tribal government[s]” eligible for CARES Act funding). …Open this footnote Close § And the Court’s restraint is not for lack of opportunity. Parties in many of those cases openly invited the Court to expand its role in Federal Indian Law, and the Court declined. 15Open this footnote Close this footnote 15 See infra Part III.A. …Open this footnote Close What’s not as clear is: Why not?

This Essay proceeds in three parts. Part I surveys the literature concerning “judicial self-aggrandizement” to identify the defining characteristics of this trend in the current Court. Part II reviews the history of Federal Indian Law in the Court, including the field’s experience with judicial self-aggrandizement. Part III documents the modern Court’s general resistance to judicial self-aggrandizement in Federal Indian Law, even as it is happening in other fields. The Essay concludes by offering some possible explanations for the Court’s resistance to judicial self-aggrandizement in Federal Indian Law.

I. Judicial Self-Aggrandizement in the Current Court

In a nation that takes pride in its “separation of powers” among “three coequal branches of our Government,” 16Open this footnote Close this footnote 16 Clinton v. Jones, 520 U.S. 681, 699 (1997); see also id. (“The Framers ‘built into the tripartite Federal Government . . . a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.’” (quoting Buckley v. Valeo, 424 U.S. 1, 122 (1976))); Maggie Blackhawk, Federal Indian Law as Paradigm Within Public Law, 132 Harv. L. Rev. 1787, 1815 (2019) (separation of powers is “[a]t the heart of our constitutional theory”). …Open this footnote Close American courts have a “curious feature”: the ability to “empower themselves through their decision-making.” 17Open this footnote Close this footnote 17 Sumrall, supra note 3, at 19. This self-aggrandizement is to be distinguished from judicial aggrandizement generally, which may be achieved when another institutional actor, such as Congress, acts in a way that increases judicial power. See Sumrall & Baumann, supra note 3, at 38; Sumrall, supra note 3, at 32-34 (describing Congressional action during the Taft Court that vested greater authority in the judiciary, including the contemporary certiorari docket). …Open this footnote Close They do this by “embracing and deploying—explicitly or implicitly—ideas that suggest courts, rather than political institutions, are the proper venue for certain questions or disputes.” 18Open this footnote Close this footnote 18 Sumrall, supra note 3, at 31; Sumrall & Baumann, supra note 3, at 28, 38. …Open this footnote Close Scholars call this “judicial self-aggrandizement”: “a judicial style where judges expand their authority at the expense of other constitutional actors—Congress, the executive branch, lower federal courts, and state authorities—by deploying norms and ideas about the proper allocation of authority.” 19Open this footnote Close this footnote 19 Sumrall & Baumann, supra note 3, at 28, 38. Although scholars have used a variety of different terms to describe this phenomenon, see, e.g., supra notes 2-4 and accompanying text, “judicial self-aggrandizement” best captures the combination of the Court’s accumulation of power and its justification of that accumulation of power, Sumrall & Baumann, supra note 3, at 37. For a useful taxonomy of ideas about judicial power, see id. at 28-41. …Open this footnote Close

The Court self-aggrandizes in two ways. First, it can “creat[e] vague, judicialized standards that ensure courts are future arbiters” of important disputes. 20Open this footnote Close this footnote 20 Sumrall & Baumann, supra note 3, at 39. Lemley makes a related argument that when self-aggrandizing, the Court is methodologically opportunistic. Lemley, supra note 1, at 111-13. …Open this footnote Close Second, it can “us[e] particular—sometimes demeaning—rhetoric to describe other political institutions.” 21Open this footnote Close this footnote 21 Sumrall & Baumann, supra note 3, at 39; see also Chafetz, supra note 2, at 637. Lemley accuses the Court of similarly demeaning lower federal courts. See Lemley, supra note 1, at 104-08. Some even accuse the current Court of demeaning earlier Courts by wantonly overruling precedent. See Tejas N. Narechania, Certiorari in the Roberts Court, 67 St. Louis U. L.J. 587, 592 (2023); Lisa Schultz Bressman, The Rise and Fall of the Self-Regulatory Court, 101 Tex. L. Rev. 1, 5 (2022). Lemley also accuses the Court of “regularly impos[ing] new limits on the power of the states to regulate in areas they have long been able to, from public health to public safety.” Lemley, supra note 1, at 109. But see Coan, supra note 10, at 486 (“For better or worse, Dobbs means that state legislatures and not the Supreme Court will generally decide abortion policy.”). …Open this footnote Close The current Court has used both of those tactics to radically reshape administrative law, 22Open this footnote Close this footnote 22 See Baumann, supra note 4, at 494-98. …Open this footnote Close first by embracing a robust major questions doctrine, 23Open this footnote Close this footnote 23 E.g., West Virginia v. EPA, 142 S. Ct. 2587, 2609-10 (2022); Nat’l Fed’n of Indep. Bus. v. Occupational Safety & Health Admin. (NFIB), 142 S. Ct. 661, 667 (2022) (Gorsuch, J., concurring). Lemley, writing before Loper Bright, calls this “an even more powerful step to limit agency power” than overruling Chevron. Lemley, supra note 1, at 99. …Open this footnote Close then in 2024 by dispensing with Chevron deference, 24Open this footnote Close this footnote 24 See Loper Bright Enters., Inc. v. Raimondo, 144 S. Ct. 2244, 2272-73 (2024) (overruling Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984)). …Open this footnote Close effectively lifting the statute of limitations on Administrative Procedure Act claims, 25Open this footnote Close this footnote 25 See Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 144 S. Ct. 2440, 2460 (2024) (the six-year statute of limitations for suits against the United States in an APA lawsuit begins when a plaintiff is injured by that agency action). …Open this footnote Close and holding that many administrative adjudications violate the Seventh Amendment right to a jury trial. 26Open this footnote Close this footnote 26 See SEC v. Jarkesy, 144 S. Ct. 2117, 2139 (2024). …Open this footnote Close Scholars are only beginning to consider the effects of the three 2024 decisions, 27Open this footnote Close this footnote 27 See Coan, supra note 10, at 424 n.80. …Open this footnote Close but scrutiny of West Virginia v. EPA and its articulation of what has been called a “new major questions doctrine” 28Open this footnote Close this footnote 28 See Daniel T. Deacon & Leah M. Litman, The New Major Questions Doctrine, 109 Va. L. Rev. 1009, 1013 (2023); see also Mila Sohoni, Comment, The Major Questions Quartet, 136 Harv. L. Rev. 262, 272-90 (2022). …Open this footnote Close shows the Court engaging in both of the judicial self-aggrandizement tactics articulated by Sumrall and Baumann. First, the Court created a vague standard that centers itself in the legal analysis. 29Open this footnote Close this footnote 29 See Coan, supra note 10, at 425. See also Chafetz, supra note 2, at 649-50; Baumann, supra note 4, at 471; Sumrall, supra note 3, at 5 n.16 (“What makes a delegation sufficiently ‘major,’ though, ultimately is up to the Court and is largely standardless.”); Sohoni, supra note 28, at 266 (new major questions cases “annex[] enormous interpretive power to the federal judiciary by enunciating a standard for substantive legitimacy that is so malleable that, at present, it can be said only to mean ‘just what [the Court] choose[s] it to mean— neither more nor less.’” (quoting Lewis Carroll, Through the Looking-Glass and What Alice Found There, in Alice’s Adventures in Wonderland and Through the Looking-Glass 244-45 (Richard Kelly ed., 2015))). …Open this footnote Close Previous iterations of the major questions doctrine began with statutory interpretation (i.e., sought to determine what Congress had done) and only then asked if the outcome of that interpretation resulted in a major question. 30Open this footnote Close this footnote 30 Deacon & Litman, supra note 28, at 1035 (citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 137, 160-61 (2000); and Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 321 (2014)). …Open this footnote Close Before the current Court, however, “the majorness of an issue frames—and alters—the entire enterprise of statutory interpretation.” 31Open this footnote Close this footnote 31 Id. at 1036. …Open this footnote Close Second, the Court justified this move by denigrating both Congress 32Open this footnote Close this footnote 32 See Baumann, supra note 4, at 491-98. Congress is alternately depicted as cowardly and feckless, e.g., NFIB, 142 S. Ct. 661, 669 (2022) (Gorsuch, J., concurring), or cynical and opportunist, e.g., Gundy v. United States, 139 S. Ct. 2116, 2135 (2019) (Gorsuch, J., dissenting). Although Justice Gorsuch wrote both passages in defense of a robust nondelegation doctrine, rather than the major questions doctrine, Justice Gorsuch has described the two as “closely related,” NFIB, 142 S. Ct. at 668 (Gorsuch, J., concurring), and “serv[ing] a similar function” to one another, id. at 669. See also Jeff Shesol, The Court’s Contempt for Congress, New Yorker (Dec. 4, 2013), https://perma.cc/T7RH-AQDQ. …Open this footnote Close and the Executive. 33Open this footnote Close this footnote 33 See West Virginia v. EPA, 142 S. Ct. at 2618 (Gorsuch, J., concurring). For a detailed description of judicial indictments of executive agencies, see Gillian E. Metzger, Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1, 17-33 (2017). …Open this footnote Close At the same time, the Court depicts itself as “more trustworthy” than the political branches and their partisan pettiness. 34Open this footnote Close this footnote 34 Chafetz, supra note 2, at 128. …Open this footnote Close The result is nothing less than “a massive shift in interpretive authority from agencies to the Supreme Court.” 35Open this footnote Close this footnote 35 Baumann, supra note 4, at 471-72. Justice Gorsuch argues that the major questions doctrine is “designed to protect the separation of powers and ensure that any new laws governing the lives of Americans are subject to the robust democratic process the Constitution demands.” NFIB, 142 S. Ct. at 668-69 (Gorsuch, J., concurring). However, the judicial self-aggrandizement critique asserts that the doctrine erodes the separation of powers. See, e.g., Sumrall, supra note 3, at 16; Deacon & Litman, supra note 28, at 1015. …Open this footnote Close

Although judicial self-aggrandizement is not always a bad thing, 36Open this footnote Close this footnote 36 Coan has observed, “If the hallmark of judicial self-aggrandizement is disparagement of other institutional decision-makers, such disparagement was certainly warranted during the Warren Court’s dismantling of Jim Crow segregation – and state-sponsored white supremacy more broadly.” Coan, supra note 10, at 469. Coan distinguishes the judicial self-aggrandizement of the Warren Court from that of the current Court, arguing that the real concern is “the combination of self-aggrandizement and the current Court’s minoritarian character.” Id. at 481. …Open this footnote Close the scholarship on it reads as a warning. 37Open this footnote Close this footnote 37 E.g., Sumrall & Baumann, supra note 3, at 42; Sumrall, supra note 3, at 48-49; Lemley, supra note 1, at 97. …Open this footnote Close At its core, judicial self-aggrandizement both raises—and, by the Court’s own voice, answers—core questions of separation of powers. 38Open this footnote Close this footnote 38 Sumrall, supra note 3, at 23. …Open this footnote Close Judicial self-aggrandizement has the effect of creating “constitutional change” 39Open this footnote Close this footnote 39 Id. at 19. …Open this footnote Close by elevating the Court from one of three “coequal” branches of the federal government 40Open this footnote Close this footnote 40 See supra note 16 and accompanying text. …Open this footnote Close to a branch that is first among equals. 41Open this footnote Close this footnote 41 Sumrall, supra note 3, at 23; Lemley, supra note 1, at 97. …Open this footnote Close

In considering whether the Court is engaged in judicial self-aggrandizement, it is important to identify a time frame of study. Although judicial self-aggrandizement is not new, 42Open this footnote Close this footnote 42 See Sumrall & Baumann, supra note 3, at 40; see also Coan, supra note 10, at 481 (describing judicial self-aggrandizement in the Warren Court); Erwin Chemerinsky, In Defense of Judicial Supremacy, 58 Wm. & Mary L. Rev. 1459, 1475 (2017) (same); Sumrall, supra note 3, at 44 (describing judicial self-aggrandizement in the Taft Court). For judicial self-aggrandizement in Federal Indian Law prior to the current Court, see infra Part II.B. …Open this footnote Close recent scholarship focuses on the period from 2020 to the present, 43Open this footnote Close this footnote 43 Lemley, supra note 1, at 97 (writing in 2022 and defining his period of study first as “the past few years,” and then as “the last two years”); see id. at 113 (considering “[t]he Court’s cases in the 2020s”). …Open this footnote Close what is sometimes called the “Trump Court” 44Open this footnote Close this footnote 44 Victoria Nourse uses this term to describe the body “created by three Trump appointments,” those of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Victoria Nourse, Ladies: You Really Do Not Have the Constitutional Rights You Think You Have, 43 Colum. J. Gender & L. 26, 27 (2022). …Open this footnote Close or the “current Court.” 45Open this footnote Close this footnote 45 Coan, supra note 10, at 417; Lemley, supra note 1, at 101, 109. Coan observes that the confirmation of Justice Barrett “gave the conservative majority a sixth vote, depriving Chief Justice Roberts of the power to single-handedly slow or moderate the Court’s rightward trajectory to safeguard its reputation for non-partisanship.” Coan, supra note 10, at 417; see also Lemley, supra note 1, at 97. …Open this footnote Close Other scholars reach back further, to the Senate’s refusal to vote on Merrick Garland’s nomination and the subsequent confirmation of Justice Neil Gorsuch. 46Open this footnote Close this footnote 46 See, e.g., Baumann, supra note 4, at 494. …Open this footnote Close Still others at least implicitly reach back as far as two decades, describing judicial self-aggrandizement as a characteristic of the Roberts Court. 47Open this footnote Close this footnote 47 Chafetz, supra note 2, at 636; Sumrall & Baumann, supra note 3, at 27, 37, 41-42. See also Charles Fried, Letter to the Editor, The Reactionary Court, N.Y. Rev. Books (Nov. 24, 2022), https://perma.cc/WF83-7Y7E; Josh Chafetz, Opinion, The First Name of a Supreme Court Justice is Not Justice, N.Y. Times (June 2, 2023), https://perma.cc/74JU-JNV8 [hereinafter Chafetz, First Name]. Notwithstanding this focus on the self-aggrandizing acts of the current, conservative Court, scholars generally acknowledge that judicial self-aggrandizement is neither a new phenomenon, see supra note 3, nor limited to conservative jurists, Sumrall & Baumann, supra note 3, at 40 (describing judicial self-aggrandizement as “bipartisan”); Chafetz, First Name, supra (same). …Open this footnote Close

For the examination of judicial self-aggrandizement in Federal Indian Law below, I have chosen to frame the period of study as beginning with the confirmation of Justice Gorsuch, in part because so much of the literature on judicial self-aggrandizement focuses on the Court’s recent administrative law jurisprudence, 48Open this footnote Close this footnote 48 See supra notes 22-35 and accompanying text. …Open this footnote Close and administrative law scholars tie much of this movement to Justice Gorsuch’s arrival on the Court. 49Open this footnote Close this footnote 49 See supra note 46 and accompanying text. …Open this footnote Close Moreover, because Justice Gorsuch’s replacing Justice Antonin Scalia constituted a significant shift in the Court’s Federal Indian Law decisions, 50Open this footnote Close this footnote 50 See Justin Burnworth, The Curious Case of Justice Neil Gorsuch, 44 Pace L. Rev. 1, 13-14, 33-45 (2023); see also Bethany R. Berger, Hope for Indian Tribes in the U.S. Supreme Court?: Menominee, Nebraska v. Parker, Bryant, Dollar General . . . and Beyond, 2017 U. Ill. L. Rev. 1901, 1941-42 (2017); cf. Matthew L.M. Fletcher, Muskrat Textualism, 116 Nw. L. Rev. 963, 974, 1000-11 (2022). In his examination of textualism in Federal Indian Law, Fletcher contrasts the approaches of Justices Scalia and Gorsuch, both known for their “archtextualist” approaches to interpretation. Id. at 974. …Open this footnote Close his confirmation marks a good place to study the Court’s Federal Indian Law decisions. The next Part will demonstrate how the Court, after a long history of deference to other decision-making institutions, created a particularized practice of judicial self-aggrandizement for Federal Indian Law.

II. Judicial Deference and Judicial Self-Aggrandizement in Federal Indian Law

Although Indians make up just a small percentage of the U.S. population, 51Open this footnote Close this footnote 51 U.S. Census Bureau, Quick Facts (July 1, 2024), https://perma.cc/DGY3-7RWK (persons identifying only as “American Indian and Alaska Native” are approximately 1.3% of the U.S. population). …Open this footnote Close Federal Indian Law cases make up a disproportionate share of the Supreme Court’s docket. 52Open this footnote Close this footnote 52 Matthew L.M. Fletcher, Factbound and Splitless: The Certiorari Process as Barrier to Justice for Indian Tribes, 51 Ariz. L. Rev. 933, 942 (2009). Since Fletcher conducted his study, the Court has decided on the merits at least 27 more Federal Indian Law cases. See Native American Rights Fund & National Congress of American Indians, Court Documents, Tribal Sup. Ct. Project, https://perma.cc/9CG6-7ZUZ (archived May 25, 2025) (collecting Tribal and Federal Indian Law cases before the Court since 2001). …Open this footnote Close In the roughly seven years since Justice Gorsuch’s elevation in 2017, the Court has decided fourteen Federal Indian Law cases on the merits. 53Open this footnote Close this footnote 53 Becerra v. San Carlos Apache Tribe, 144 S. Ct. 1428, 1145 (2024); Arizona v. Navajo Nation, 143 S. Ct. 1804, 1816 (2023); Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 144 S. Ct. 1689, 1702 (2023); Haaland v. Brackeen, 143 S. Ct. 1609, 1641 (2023); Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2504-05 (2022); Ysleta del Sur Pueblo v. Texas, 142 S. Ct. 1929, 1944 (2022); Denezpi v. United States, 142 S. Ct. 1838, 1849 (2022); Yellen v. Confederated Tribes of the Chehalis Rsrv., 141 S. Ct. 2434, 2438 (2021); United States v. Cooley, 141 S. Ct. 1638 (2021); McGirt v. Oklahoma, 140 S. Ct. 2452, 2482 (2020); Herrera v. Wyoming, 139 S. Ct. 1686 (2019); Wash. State Dep’t of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 1015-16 (2019); Upper Skagit Indian Tribe v. Lundgren, 138 S. Ct. 1649, 1654-55 (2018); Patchak v. Zinke (Patchak II), 138 S. Ct. 897 (2018). …Open this footnote Close These cases are the subject of the analysis in Part III. First, however, Part II.A describes the Court’s tradition of deference to the political branches in Federal Indian Law; then Part II.B reframes the Court’s doctrine of “implicit divestiture” in the late twentieth and early twenty-first centuries as a deviation from that tradition and an act of judicial self-aggrandizement.

A. Judicial Deference to the Political Branches

For most of this Nation’s history, the Supreme Court has been “highly deferential” to the political branches in cases concerning Indian affairs. 54Open this footnote Close this footnote 54 Blackhawk, supra note 16, at 1795; see also Cohen’s Handbook of Federal Indian Law § 6.03[3][a] at 382-83 (Nell Jessup Newton & Kevin K. Washburn eds., 2024). …Open this footnote Close In fact, the Supreme Court has frequently acknowledged the primacy of Congress (and, to a lesser extent, the Executive) in Federal Indian Law. 55Open this footnote Close this footnote 55 Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832); see also U.S. Const. art. I, § 8, cl. 11 (war power); id. art. II, § 2, cl. 2 (treaty power, shared by the President and the Senate); id. art. I, § 8, cl. 3 (commerce power); Alexander Tallchief Skibine, The Supreme Court’s Last 30 Years of Federal Indian Law: Looking for Equilibrium or Supremacy, 8 Colum. J. Race & L. 277, 281 (2018). …Open this footnote Close The Court has recognized that the political branches alone have the power to regulate Indian country 56Open this footnote Close this footnote 56 United States v. Rogers, 45 U.S. (4 How.) 567, 572 (1846). …Open this footnote Close and to determine with whom the United States carries on Indian relations, 57Open this footnote Close this footnote 57 United States v. Holliday, 70 U.S. (3 Wall.) 407, 419 (1866); Morton v. Mancari, 417 U.S. 535, 554-55 (1974). …Open this footnote Close which the Court will only rein in if exercised “arbitrarily.” 58Open this footnote Close this footnote 58 United States v. Sandoval, 231 U.S. 28, 46 (1913); see also Baker v. Carr, 369 U.S. 186, 215-17 (1962) (discussing the “status of Indian tribes” as a political question). …Open this footnote Close The Court has refused to “question or inquire into the motives which prompted” Congress to pass Indian legislation, 59Open this footnote Close this footnote 59 Lone Wolf v. Hitchcock, 187 U.S. 553, 568 (1903). Refusing to adjudicate the due process claims of the Kiowas, Comanches and Apaches, id. at 564, the Court wrote: “If injury was occasioned, which we do not wish to be understood as implying, by the use made by Congress of its power, relief must be sought by an appeal to that body for redress and not to the courts,” id. at 568. …Open this footnote Close and has stated that “courts have no proper role in the adjustment of reservation borders.” 60Open this footnote Close this footnote 60 McGirt v. Oklahoma, 140 S. Ct. 2452, 2462 (2020). …Open this footnote Close Even where the Court does not speak so definitively, it has implied that it will not question the political branches’ assertion of title over Indian lands, 61Open this footnote Close this footnote 61 Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, 588 (1823). …Open this footnote Close nor will it find the United States owes any specific trust responsibility to Indians or Indian tribes unless “the text of a treaty, statute, or regulation imposed certain duties on the United States.” 62Open this footnote Close this footnote 62 Arizona v. Navajo Nation, 143 S. Ct. 1804, 1813 (2023) (citing United States v. Jicarilla Apache Nation, 564 U.S. 162, 173-74, 177-78 (2011); United States v. Navajo Nation, 537 U.S. 488, 506-07 (2003); and United States v. Mitchell, 445 U.S. 535, 542, 546 (1980)). …Open this footnote Close This deference borders on obsequious. 63Open this footnote Close this footnote 63 Blackhawk, supra note 16, at 1799; Milner S. Ball, Constitution, Court, Indian Tribes, 1987 Am. Bar Found. Rsch. J. 1, 11-12 (1987). …Open this footnote Close Historically speaking, the Court has been more than happy to leave Indian Affairs to the political branches.

B. “Implicit Divestiture” as Judicial Self-Aggrandizement

The principal exception to this historical deference is the doctrine of implicit divestiture, by which the Court assumed for itself the power to diminish Indian tribes’ sovereign authority. 64Open this footnote Close this footnote 64 See generally Samuel E. Ennis, Implicit Divestiture and the Supreme Court’s (Re)Construction of the Indian Canons, 35 Vt. L. Rev. 623 (2011); John P. LaVelle, Implicit Divestiture Reconsidered: Outtakes from the Cohen’s Handbook Cutting-Room Floor, 38 Conn. L. Rev. 731 (2006); Alex Tallchief Skibine, The Court’s Use of the Implicit Divestiture Doctrine to Implement its Imperfect Notion of Federalism in Indian Country, 36 Tulsa L.J. 267 (2000); N. Bruce Duthu, Implicit Divestiture of Tribal Powers: Locating Legitimate Sources of Authority in Indian Country, 19 Am. Indian L. Rev. 353 (1994). …Open this footnote Close From the Founding, Indian tribes have been seen as sovereign, self-governing polities. 65Open this footnote Close this footnote 65 See Gregory Ablavsky, The Savage Constitution, 63 Duke L.J. 999, 1035-38 (2014). Ablavsky describes two competing views concerning how the nation should treat tribes, but Blackhawk says that both approaches characterized tribes “as sovereign governments (albeit ones that deserved less respect than their White counterparts).” Blackhawk, supra note 16, at 1807. …Open this footnote Close For two centuries, Indian tribes were presumed to have retained whatever sovereign powers they had not ceded by treaty 66Open this footnote Close this footnote 66 See Blackhawk, supra note 16, at 1810-11. …Open this footnote Close or other agreement. 67Open this footnote Close this footnote 67 See id. at 1812-13. …Open this footnote Close Felix Cohen’s description is worth quoting at length:

Perhaps the most basic principle of all Indian law, supported by a host of decisions hereinafter analyzed, is the principle that those powers which are lawfully vested in an Indian tribe are not, in general, delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which has never been extinguished. Each Indian tribe begins its relationship with the Federal Government as a sovereign power, recognized as such in treaty and legislation. The powers of sovereignty have been limited from time to time by special treaties and laws designed to take from the Indian tribes control of matters which, in the judgment of Congress, these tribes could no longer be safely permitted to handle. The statutes of Congress, then, must be examined to determine the limitations of tribal sovereignty rather than to determine its sources or its positive content. What is not expressly limited remains within the domain of tribal sovereignty. 68Open this footnote Close this footnote 68 .Felix S. Cohen, Handbook of Federal Indian Law 122 (1942). Cohen is frequently described as the “father of Indian law.” E.g., Elizabeth Cook-Lynn, New Indians, Old Wars 24 (2007). …Open this footnote Close

Thus, just as our constitutional framework included a national government comprised of three coequal institutions (Congress, the President, and the Court), and federalism respects both the national government and the states, Federal Indian Law has always acknowledged another institutional actor: sovereign Indian tribes. 69Open this footnote Close this footnote 69 See Richard A. Monette, A New Federalism for Indian Tribes: The Relationship Between the United States and Tribes in Light of Our Federalism and Republican Democracy, 25 U. Toledo L. Rev. 617, 633-37 (1994) (comparing Tribes and states in federalized relationships with the federal government); see also Blackhawk, supra note 16, at 1814. …Open this footnote Close

The era of implicit divestiture began with Oliphant v. Suquamish Indian Tribe, 70Open this footnote Close this footnote 70 435 U.S. 191 (1978). …Open this footnote Close in which a non-Indian resident of the Port Madison Indian Reservation challenged the tribe’s authority to criminally prosecute him. 71Open this footnote Close this footnote 71 For a detailed history of the case, see Sarah Krakoff, Mark the Plumber v. Tribal Empire, or Non-Indian Anxiety v. Tribal Sovereignty?: The Story of Oliphant v. Suquamish Indian Tribe, in Indian Law Stories 261-96 (Carole Goldberg et al. eds. 2011). …Open this footnote Close The Court cited no treaty or act of Congress that would have barred the tribe’s prosecution of a non-Indian. 72Open this footnote Close this footnote 72 See Oliphant, 435 U.S. at 201-06 (discussing various acts of Congress, but identifying none that divested tribes of criminal jurisdiction over non-Indians); id. at 206-08 (discussing the Treaty of Point Elliott, specifying no text that divested the Tribe of criminal jurisdiction over non-Indians, but relying instead on implications drawn from the Tribe’s acknowledgment of its dependence on the federal government); see also Fletcher, Muskrat Textualism, supra note 50, at 986-99 (critiquing Oliphant). …Open this footnote Close Instead, the Court merely implied “that Congress shared the view of the Executive Branch and lower federal courts that Indian tribal courts were without jurisdiction to try non-Indians.” 73Open this footnote Close this footnote 73 Oliphant, 435 U.S. at 203, 206. …Open this footnote Close In the Court’s view, this “unspoken assumption” 74Open this footnote Close this footnote 74 Id. at 203. …Open this footnote Close was grounds “to conclude that Indian tribes do not have inherent jurisdiction to try and punish non-Indians,” 75Open this footnote Close this footnote 75 Id. at 212. …Open this footnote Close and that they could do so only if granted such authority by Congress. 76Open this footnote Close this footnote 76 Id. Notably, Justice Thurgood Marshall, joined by Chief Justice Warren Burger, endorsed Cohen’s view in dissent: “In the absence of affirmative withdrawal by treaty or statute, I am of the view that Indian tribes enjoy as a necessary aspect of their retained sovereignty the right to try and punish all persons who commit offenses against tribal law within the reservation.” Id. (Marshall, J., dissenting). …Open this footnote Close This new doctrine became known as “implicit divestiture,” 77Open this footnote Close this footnote 77 Ironically, the term “implicit divestiture” comes not from Oliphant, but instead from United States v. Wheeler, 435 U.S. 313, 326 (1978), decided a mere 16 days after Oliphant, and described by one leading scholar as “an endorsement of tribal sovereignty in such ringing terms that the existence of the doctrine, so uncertain just a few days before, now seemed irrevocably to be established as part of the nation’s constitutional and political system.” Charles F. Wilkinson, American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy 61 (1987). …Open this footnote Close  implicit because the Court diminished Tribal powers not based on the text of a treaty or statute, but instead based on the Court’s own views of the limits of those powers. Implicit divestiture turned on its head what Cohen had described as “the most basic principle of all Indian law,” that tribes retain those powers they have not expressly ceded. 78Open this footnote Close this footnote 78 .Cohen, supra note 68, at 122. …Open this footnote Close And the Court was just getting warmed up.

The next three decades saw the Court expand its implicit divestiture doctrine. Beginning with Montana v. United States, 79Open this footnote Close this footnote 79 450 U.S. 544 (1981). …Open this footnote Close the Court limited tribes’ civil jurisdiction over non-Indians on their reservations. 80Open this footnote Close this footnote 80 Id. at 566 (holding tribes generally lack civil regulatory jurisdiction over non-Indians on non-Indian lands within the reservation unless the non-Indian consents or the conduct threatens the tribe’s “political integrity, economic security, or the health or welfare of the tribe”). …Open this footnote Close Here again, the Court “twisted the logic” 81Open this footnote Close this footnote 81 Ennis, supra note 64, at 641. …Open this footnote Close of its own case law and announced a rule that “exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.” 82Open this footnote Close this footnote 82 Montana, 450 U.S. at 564. …Open this footnote Close  Montana became “the pathmarking case concerning tribal civil authority over nonmembers.” 83Open this footnote Close this footnote 83 Strate v. A-1 Contractors, 520 U.S. 438, 445 (1997). …Open this footnote Close In 1997, the Court limited tribes’ jurisdiction over nonmembers on state highways through reservations. 84Open this footnote Close this footnote 84 Id. at 442. …Open this footnote Close In 2001, the Court applied Montana to limit tribes’ adjudicatory jurisdiction, holding that tribes might sometimes need congressional authorization to exercise jurisdiction over nonmembers even on Tribal lands, and barred tribes from exercising jurisdiction over state officers in performance of their duties. 85Open this footnote Close this footnote 85 See Nevada v. Hicks, 533 U.S. 353, 364-66 (2001). …Open this footnote Close And in 2008, the Court narrowed Montana’s consent exception. 86Open this footnote Close this footnote 86 See Plains Com. Bank v. Long Fam. Land & Cattle Co., 554 U.S. 316, 337 (2008). The Court was poised to go even farther and completely divest tribes of civil jurisdiction over nonmembers when, in 2016, the death of Justice Antonin Scalia left an eight-member court unable to resolve the case on the merits. Dollar Gen. Corp. v. Miss. Band of Choctaw Indians, 579 U.S. 545, 546 (2016). …Open this footnote Close In addition, the Court further limited tribes’ criminal jurisdiction; where Oliphant had held that tribes lacked criminal jurisdiction over non-Indians, the Court in Duro v. Reina 87Open this footnote Close this footnote 87 495 U.S. 676 (1990), superseded by statute, Pub. L. 101-511, tit. VIII, § 8077(b)-(c), 104 Stat. 1892-93 (1990) (codified at 25 U.S.C. §§ 1301(2), 1301(4)), as recognized in United States v. Lara, 541 U.S. 193 (2004) (upholding the “Duro fix”). …Open this footnote Close further held that tribes lack criminal jurisdiction over Indians who are not members of the tribe exercising jurisdiction. 88Open this footnote Close this footnote 88 See Duro, 495 U.S. at 679; see also Keith Richotte, Jr., The Worst Trickster Story Ever Told: Native America, The Supreme Court, And The U.S. Constitution 18 (2025) (describing as “the latest stop” in the implicit divestiture line of cases). …Open this footnote Close In each of these cases, the Court eroded tribal authority relying not on any tribal cession or formal action by Congress or the Executive, but instead on its own conclusion that tribes’ exercise of such authority would be “inconsistent with their status.” 89Open this footnote Close this footnote 89 Oliphant, 435 U.S. 191, 208 (1978) (quoting Oliphant v. Schlie, 544 F.2d 1007, 1009 (9th Cir. 1976)). …Open this footnote Close

Implicit divestiture was (and is) classic judicial self-aggrandizement. First, it employed a “vague, judicialized standard” 90Open this footnote Close this footnote 90 Sumrall & Baumann, supra note 3, at 39. …Open this footnote Close : Instead of looking to text agreed to by tribes themselves and/or enacted by Congress, the Court would determine the scope of Tribal powers by deciding itself whether the claimed power was “inconsistent with [tribes’] status.” 91Open this footnote Close this footnote 91 Oliphant, 435 U.S. at 208 (emphasis omitted) (quoting Schlie, 544 F.2d at 1009). …Open this footnote Close Second, the Court’s implicit divestiture cases denigrate a competing decision-making authority—here, the tribes themselves. 92Open this footnote Close this footnote 92 E.g., Duro, 495 U.S. at 693 (describing Tribal courts as “influenced by the unique customs, languages, and usages of the tribes they serve,” questioning Tribal courts’ independence. …Open this footnote Close And through this doctrine, the Court has changed the balance of institutional authority, not only by divesting tribes of powers that they never ceded and that Congress never took from them, but by turning the burden back on Congress to restore such powers. 93Open this footnote Close this footnote 93 E.g., id. at 692-93; Oliphant, 438 U.S. at 212 (allowing that Congress may restore to tribes the powers the Court stripped from them). …Open this footnote Close The next Part will show how the current court has generally resisted calls for judicial self-aggrandizement in Federal Indian Law.

III. Federal Indian Law in the Current Court

A. (Mostly) Resisting Invitations to Judicial Self-Aggrandizement

Although it has had ample opportunity, the current Court mostly has resisted invitations to self-aggrandizement in Federal Indian Law. Brackeen is the leading example of the Court’s restraint. In their challenge to the constitutionality of the Indian Child Welfare Act (ICWA), plaintiffs advanced four distinct constitutional arguments: “that ICWA exceed[ed] Congress’s power under Article I,” that it unconstitutionally commandeered the states and violated the Tenth Amendment, that its placement preferences violated the Constitution’s guarantee of equal protection, and that a section requiring states to follow tribes’ enacted placement preferences violated the nondelegation doctrine. 94Open this footnote Close this footnote 94 Haaland v. Brackeen, 143 S. Ct. 1609 at 1627, 1631, 1638 (2023). …Open this footnote Close  Brackeen had its origins in concerns voiced by Justices Alito and Thomas in an earlier ICWA case, 95Open this footnote Close this footnote 95 See Adoptive Couple v. Baby Girl, 570 U.S. 637, 641, 646, 655-56 (2013) (opinion of Alito, J.) (emphasizing the child’s blood quantum and raising equal protection concerns); id. at 658-66 (Thomas, J., concurring) (arguing that existing case law exceeds the Constitution’s original grant of authority) …Open this footnote Close and it was the culmination of several years of trial and error by advocacy groups seeking to invalidate ICWA. 96Open this footnote Close this footnote 96 Kathryn Fort, The Road to Brackeen: Defending ICWA 2013-2023, 72 Am. U. L. Rev. 1673, 1674 (2023). …Open this footnote Close It also was a classic case of what Sumrall describes as “political actors using the courts to push for political and policy change.” 97Open this footnote Close this footnote 97 Sumrall, supra note 3, at 23. …Open this footnote Close And it was an open invitation to judicial self-aggrandizement: the plaintiffs asked the Court to hold that ICWA exceeded Congress’s Article I power without offering any coherent theory for doing so. 98Open this footnote Close this footnote 98 Brackeen, 143 S. Ct. at 1627-29. …Open this footnote Close

As an invitation to judicial self-aggrandizement, Brackeen was a phenomenal failure. With respect to Article I, the Court affirmed “Congress’s ability to legislate across a wide range of areas, including criminal law, domestic violence, employment, property, tax, and trade,” 99Open this footnote Close this footnote 99 Id. at 1628-29. …Open this footnote Close rejected the plaintiffs’ argument that such power did not extend to domestic relations, 100Open this footnote Close this footnote 100 Id. at 1629-30. …Open this footnote Close and chided the plaintiffs for failing to wrestle with the Court’s precedent or with how their theories might change Federal Indian Law. 101Open this footnote Close this footnote 101 Id. at 1631. …Open this footnote Close The plaintiffs’ anti-commandeering argument was similarly rejected. 102Open this footnote Close this footnote 102 Id. at 1631-34. …Open this footnote Close More important, the Court refused to decide the plaintiffs’ equal protection challenge, holding that none of the plaintiffs had standing to bring it. 103Open this footnote Close this footnote 103 Id. at 1641. The Court also refused, for lack of standing, to decide the plaintiffs’ nondelegation challenge. Id. at 1638. …Open this footnote Close The equal protection question probably was the Court’s best opportunity for judicial self-aggrandizement. First, the standing doctrine has been described as “both amorphous and prone to abuse . . . because it lacks clear doctrinal parameters and can be easily enlarged or constricted as a matter of judicial whim.” 104Open this footnote Close this footnote 104 Clark Neily, Student Loan Forgiveness and Standing, Cato at Liberty (July 3, 2023), https://perma.cc/TTB2-A7KR. …Open this footnote Close Moreover, had the Court held that ICWA’s placement preferences violated equal protection by favoring Indian foster and adoptive placements, it would have radically reshaped the federal government’s relationship with Indian tribes. 105Open this footnote Close this footnote 105 See Morton v. Mancari, 417 U.S. 535, 554-55 (1974). …Open this footnote Close Throughout the argument, Justices evinced concern about how a ruling for the plaintiffs might intrude on the political branches, 106Open this footnote Close this footnote 106 E.g., Transcript of Oral Argument at 22-23 (questions of Gorsuch, J.), 49-51 (questions of Jackson, J.), Haaland v. Brackeen, 143 S. Ct. 1609 (2023) (No. 21-376). …Open this footnote Close and the scope of the precedent they might have to overrule to get there. 107Open this footnote Close this footnote 107 E.g., id. at 13-16 (questions of Barrett, J.), 14-15, 25-27, 82-86 (questions of Sotomayor, J.), 77-82 (questions of Gorsuch, J.), 145-148 (questions of Kagan, J.). …Open this footnote Close Although the current Court has been accused of “reach[ing] out to decide issues not presented by the case before it,” 108Open this footnote Close this footnote 108 Lemley, supra note 1, at 108 (comparing Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (overruling Roe v. Wade, 410 U.S. 113 (1973); and Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)), with Petition for Writ of Certiorari, Dobbs, 597 U.S. at i (No. 19-1392) (questions presented do not ask the Court to overrule these cases)). …Open this footnote Close in Brackeen, the current Court resisted the opportunity to aggrandize itself on an issue that it granted certiorari to hear.

Brackeen was a win for Tribal interests, but one week later, the Court also resisted an invitation to aggrandize itself from Indian Country. In Arizona v. Navajo Nation, the Navajo Nation asked the Court to hold that its 1868 treaty

requires the United States to take affirmative steps to secure water for the Navajos—for example, by assessing the Tribe’s water needs, developing a plan to secure the needed water, and potentially building pipelines, pumps, wells, or other water infrastructure—either to facilitate better access to water on the reservation or to transport off-reservation water onto the reservation. 109Open this footnote Close this footnote 109 143 S. Ct. 1804, 1810 (2023). Justice Gorsuch, writing for four Justices, disputes this characterization, arguing that the Navajo merely “want the United States to identify the water rights it holds for them [a]nd if the United States misappropriated the Navajo’s water rights . . . to formulate a plan to stop doing so prospectively.” Id. at 1819 (Gorsuch, J., dissenting). But even this formulation of the Navajo’s plea would require the Court to articulate the metes and bounds of the trust relationship, instead of leaving that task to Congress and the Executive. …Open this footnote Close

The Court acknowledged that the creation of an Indian reservation creates reserved water rights. 110Open this footnote Close this footnote 110 Id. at 1812; Winters v. United States, 207 U.S. 564, 577 (1908). …Open this footnote Close But the Court would only vindicate a breach of trust claim against the United States if “the text of a treaty, statute, or regulation imposed certain duties on the United States,” 111Open this footnote Close this footnote 111 Navajo Nation, 143 S. Ct. at 1813. …Open this footnote Close a rule the Court said was necessitated by “separation of powers principles.” 112Open this footnote Close this footnote 112 Id. at 1813 & n.1 (citing United States v. Jicarilla Apache Nation, 564 U.S. 162, 165, 175, 177 (2011)). …Open this footnote Close “Stated otherwise, the trust obligations of the United States to the Indian tribes are established by Congress and the Executive, not created by the Judiciary.” 113Open this footnote Close this footnote 113 Id. …Open this footnote Close Justice Gorsuch is right that this decision effectively leaves the Navajo Nation little (if any) means of vindicating its reserved water rights. 114Open this footnote Close this footnote 114 Id. at 1826-29 (Gorsuch, J., dissenting). …Open this footnote Close But in the absence of a statute or regulation affirmatively spelling out the federal government’s responsibility, the Navajo could have prevailed only by persuading the Court to decide itself what responsibilities the federal government owes to tribes, which would have been a classic act of judicial self-aggrandizement.

Brackeen and Navajo Nation are not the only instances in which the current Court opted not to aggrandize itself at the expense of the political branches. In United States v. Cooley, the Court held that tribal law enforcement has the authority to conduct Terry stops 115Open this footnote Close this footnote 115 See Terry v. Ohio, 392 U.S. 1, 30-31 (1968) (holding that an officer may, for self-protection and protection of others, conduct a limited search for weapons of a person reasonably suspected to be engaged in criminal activity). …Open this footnote Close on non-Indians on public rights-of-way within reservation borders, 116Open this footnote Close this footnote 116 Cooley, 141 S. Ct. at 1641-1642. …Open this footnote Close refusing to let implicit divestiture further diminish Tribal powers. And in Herrera v. Wyoming, the Court affirmed a Crow Tribe treaty hunting right after first holding that issue preclusion—a court-made doctrine that serves judicial needs 117Open this footnote Close this footnote 117 See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 (1979). …Open this footnote Close —did not bar Herrera’s treaty-rights defense. 118Open this footnote Close this footnote 118 Herrera v. Wyoming, 139 S. Ct. 1686, 1697-98 (2019). …Open this footnote Close Considering the scope of the accusations of judicial self-aggrandizement leveled at the current Court, its refusal to aggrandize itself in Federal Indian Law cases is remarkable.

B. The Subtle Self-Aggrandizement of the Current Court

There is one way in which the current Court may be engaging in a practice of subtle judicial self-aggrandizement in Federal Indian Law: its seeming refusal to apply the canon of construction that “statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.” 119Open this footnote Close this footnote 119 Montana v. Blackfeet Tribe, 471 U.S. 759, 766 (1985). What I will refer to as the “liberal construction canon” is one of four Indian canons used to construe treaties, statutes, and other instruments concerning Indians. See Cohen’s Handbook of Federal Indian Law, supra note 54, § 3.01[1], at 156. …Open this footnote Close With its origins in treaty interpretation 120Open this footnote Close this footnote 120 .Cohen’s Handbook of Federal Indian Law, supra note 54, § 3.01[1], at 156. …Open this footnote Close and a pedigree in the Supreme Court going back almost 200 years, the liberal construction canon is among the best known and most enduring of substantive canons, 121Open this footnote Close this footnote 121 See Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 128, 151-52 (2010). …Open this footnote Close invoked by both the most liberal 122Open this footnote Close this footnote 122 See, e.g., Bryan v. Itasca County, 426 U.S. 373, 392 (1976) (opinion of Brennan, J.), …Open this footnote Close and the most conservative 123Open this footnote Close this footnote 123 See, e.g., County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 269 (1992) (opinion of Scalia, J.); see also South Dakota v. Bourland, 508 U.S. 679, 687 (1993) (opinion of Thomas, J.). …Open this footnote Close of Justices. And because the liberal construction canon reinforces the primacy of Congress in setting forth Federal Indian policy, adherence to the canon plays an important role in the separation of powers.

Yet, for more than two decades, scholars and practitioners have questioned whether the Court is still committed to the liberal construction canon. 124Open this footnote Close this footnote 124 Some scholars see the Court retreating from the canons, see, e.g., Aaron-Andrew P. Bruhl, Communicating the Canons: How Lower Courts React When the Supreme Court Changes the Rules of Statutory Interpretation, 100 Minn. L. Rev. 481, 521 (2015), especially in decisions finding the implicit divestiture of Tribal jurisdiction without an express textual statement, see, e.g., William N. Eskridge et al., Legislation and Statutory Interpretation 374-75 (2d ed. 2006); Philip P. Frickey, A Common Law for Our Age of Colonialism: The Judicial Divestiture of Indian Tribal Authority Over Nonmembers, 109 Yale L.J. 1, 58-59 (1999), or in decisions that elevate another canon over the Indian canons, e.g., Graydon Dean Luthey, Jr., Chickasaw Nation v. United States: The Beginning of the End of the Indian-Law Canons in Statutory Cases and the Start of the Judicial Assault on the Trust Relationship?, 27 Am. Indian L. Rev. 553 (2002). …Open this footnote Close One textbook on statutory interpretation, in an appendix detailing the Court’s use of canons from 1986-2014, does not include the liberal construction canon at all, 125Open this footnote Close this footnote 125 .William N. Eskridge Jr. et al., Statutes, Regulations, and Interpretation: Legislation and Administration in the Republic of Statutes app. 6, at 1091-114 (2014). …Open this footnote Close even though statutory construction was central to several Federal Indian Law cases during that period. 126Open this footnote Close this footnote 126 See Alex Tallchief Skibine, Textualism and the Indian Canons of Statutory Construction, 55 U. Mich. J.L. Reform 267, 291-95 (2022). …Open this footnote Close The current Court has decided six cases that principally turned on statutory construction without once invoking (much less utilizing) the liberal construction canon; 127Open this footnote Close this footnote 127 Becerra v. San Carlos Apache Tribe, 144 S. Ct. 1428, 1436 (2024) (construction of Indian Self-Determination and Education Assistance Act (ISDEAA)); Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 144 S. Ct. 1689, 1694 (2023) (construction of Bankruptcy Act); Ysleta del Sur Pueblo v. Texas, 142 S. Ct. 1929, 1929 (2022) (construction of Ysleta del Sur and Alabama and Coushatta Indian Tribes of Texas Restoration Act); Yellen v. Confederated Tribes of the Chehalis Rsrv., 141 S. Ct. 2434, 2438 (2021) (construction of CARES Act and ISDEAA); Patchak II, 138 S. Ct. 897, 902-03 (2018) (construction of Gun Lake Trust Land Reaffirmation Act). In Becerra, the Court observed both that the ISDEAA itself includes a model compact providing that ISDEAA contracts “shall be liberally construed for the benefit of the [Tribe],” and that the contracts at issue contained that requirement. 144 S. Ct. at 1438. However, the Court’s decision did not even discuss liberal construction, either of the ISDEAA or of the contract. See generally id. …Open this footnote Close in one case, multiple Justices engaged in extended colloquy with counsel about the canon, 128Open this footnote Close this footnote 128 Transcript of Oral Argument at 55-56 (questions of Alito, J.), 59-65 (questions of Kagan, J., Gorsuch, J., Kavanaugh, J., and Barrett, J.), Ysleta del Sur Pueblo v. Texas, 142 S. Ct. 1941 (2022) (No. 20-493). …Open this footnote Close but ultimately the Court found resort to it unnecessary. 129Open this footnote Close this footnote 129 Ysleta del Sur Pueblo, 142 S. Ct. at 1941 n.3. …Open this footnote Close

The Court’s seeming avoidance of the liberal construction canon may be a form of subtle judicial self-aggrandizement. First, the Court appears to be avoiding the liberal construction canon through a “vague, judicialized standard,” 130Open this footnote Close this footnote 130 See supra note 20 and accompanying text. …Open this footnote Close specifically by consistently holding that statutes are sufficiently clear that resort to the canon is unnecessary. Thus, in Coughlin, the Court held that, even though Indian tribes are not among the named governmental units whose sovereign immunity is expressly abrogated and there is no evidence Congress had tribes in mind, the Bankruptcy Code nevertheless “unambiguously abrogates tribal sovereign immunity.” 131Open this footnote Close this footnote 131 143 S. Ct. at 1702. …Open this footnote Close And in Ysleta del Sur Pueblo, the Court held that the Ysleta del Sur and Alabama and Coushatta Tribes of Texas Restoration Act unambiguously allows those tribes to operate gaming unencumbered by Texas regulations, 132Open this footnote Close this footnote 132 142 S. Ct. at 1941 & n.3. …Open this footnote Close when multiple lower courts had held that the same Act unambiguously subjected those tribes to Texas regulations. 133Open this footnote Close this footnote 133 Ysleta del Sur Pueblo v. Texas, 36 F.3d 1325, 1334 & n.20 (5th Cir. 1994). …Open this footnote Close Note that the Court’s seeming certainty neither favors, nor disfavors, Indian tribes: tribal interests prevailed in Ysleta del Sur Pueblo and lost in Coughlin. However, by fixating the analysis on the Court’s determination of whether there is an ambiguity, the Court never engages with the structural reasons that justify the Indian Canon—”protecting tribal property and sovereignty and preserving clear lines of federal authority to alter such principles” 134Open this footnote Close this footnote 134 .Cohen’s Handbook of Federal Indian Law, supra note 54, § 3.01[3], at 160. …Open this footnote Close —and thus recalibrates the separation of powers in Federal Indian Law.

Conclusion

In an age of judicial self-aggrandizement, Federal Indian Law seems to stand apart. Why? There is no obvious answer. It might simply be that the Court doesn’t care enough about Indian law to want to blow it up. Consider two bodies of law in which the Court is accused of judicial self-aggrandizement: administrative law 135Open this footnote Close this footnote 135 Chafetz, supra note 2, at 648-52. See generally Baumann, supra note 4; Sumrall, supra note 3; Metzger, supra note 33. …Open this footnote Close and election law. 136Open this footnote Close this footnote 136 Coan, supra note 10, at 486; Chafetz, supra note 2, at 637-40. The Court has also radically reshaped other bodies of law that are close to the hearts of the conservative majority, in particular protecting the free exercise rights of Christians, see, e.g., Lee Epstein & Eric Posner, The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait, 2021 Sup. Ct. Rev. 315, 317-21 (2022); Zalman Rothschild, Individualized Exemptions, Vaccine Mandates, and the New Free Exercise Clause, 131 Yale L.J.F. 1106, 1107-10 (2022), and restoring state authority to regulate abortion, see, e.g., Nourse, supra note 44, at 27; Robert L. Tsai & Mary Ziegler, Abortion Politics and the Rise of Movement Jurists, 75 U.C. Davis L. Rev. 2149, 2208-10 (2024). …Open this footnote Close Given the Court’s open hostility to what the conservative justices often refer to as the federal “administrative state,” 137Open this footnote Close this footnote 137 Sumrall, supra note 3, at 4; Craig Green, Deconstructing the Administrative State: Chevron Debates and the Transformation of Constitutional Politics, 101 B.U. L. Rev. 619, 621 (2021); see also Lemley, supra note 1, at 101. …Open this footnote Close it is little wonder that the Court would seek to simultaneously expand its own powers and diminish those of the Executive in administrative law. If the Court is unwilling to upset the separation of powers in Federal Indian Law simply because the Court doesn’t care enough about Federal Indian Law, that might not be a good thing.

Of course, we’re not out of the woods yet. The pernicious thing about judicial self-aggrandizement is that it is always a risk—a court that aggrandizes itself in one era 138Open this footnote Close this footnote 138 See supra Part II.B (discussing implicit divestiture as judicial self-aggrandizement). …Open this footnote Close and refuses to do so in another 139Open this footnote Close this footnote 139 See supra note 116 and accompanying text (discussing Cooley). …Open this footnote Close can always go back to judicial self-aggrandizement. And there is little that other institutions can do to prevent it.

* Professor Dan Lewerenz (Iowa Tribe of Kansas and Nebraska) is an Assistant Professor of Law and Director of the Indian Law and Tribal Law Certificate Program at the University of North Dakota School of Law. Prior to joining the UND Law faculty, Dan was a Staff Attorney at the Native American Rights Fund, where he was one of two attorneys assigned to the Tribal Supreme Court Project. Thanks to Jud Campbell for his thoughtful comments and questions at the Symposium, and to Lilly Weidhaas and the students at the Stanford Law Review for their careful edits.